[Cite as Phillips v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-7061.]




JULIUS PHILLIPS                                         Case No. 2014-00644

        Plaintiff                                       Magistrate Robert Van Schoyck

        v.                                              DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

        Defendant



        {¶1} Plaintiff, formerly an inmate in the custody and control of defendant at the
Marion Correctional Institution (MCI), brought this action alleging that on August 2,
2013, Corrections Officer John Sellers negligently inflicted injuries upon him through the
excessive use of force. The issues of liability and damages were bifurcated and the
case proceeded to trial on the issue of liability.
        {¶2} At trial, plaintiff testified that on the afternoon of August 2, 2013, he went in
the bathroom of his dormitory at MCI and confronted another inmate who had been
stealing from him. According to plaintiff, an altercation ensued in which the other inmate
and an associate fought plaintiff and eventually struck him several times in the chest
and head with a broomstick.                 Plaintiff characterized his own actions during the
altercation as self-defense. Plaintiff stated that after the point at which he suffered a
particularly severe blow from the broomstick to the back of the head, he was “out of it”
and there is very little that he can recall after that occurred.
        {¶3} Plaintiff stated that he remembered there being about four or five inmates in
the bathroom when the fight started, but he did not recall seeing the corrections officers
who responded to the scene or being in a struggle with Corrections Officer Sellers,
although he does recall being sprayed with pepper spray at some point. When shown
medical records indicating that he was seen that afternoon at the MCI infirmary and
Case No. 2014-00644                               -2-                             DECISION


later at Marion General Hospital, plaintiff testified that he has no recollection of being at
either place.      (Plaintiff’s Exhibits 4, 5.)     Plaintiff stated that his memory returned
sometime later when he was at the Ohio State University Medical Center (OSUMC),
where he remained for several days.           Plaintiff testified that he was diagnosed with
fractures of multiple facial bones, among other injuries. Plaintiff further testified that he
spent two weeks at defendant’s Franklin Medical Center after he left OSUMC.
       {¶4} Burk Jordan, who testified that he has been an inmate in defendant’s
custody for 19 years, stated that he lived in the same dormitory as plaintiff and that he
witnessed part of the incident. Jordan recounted that upon hearing a commotion, he
went in the bathroom to see what was going on, and by that time Corrections Officer
Sellers had just entered the bathroom. Jordan stated that he also saw Corrections
Officer Tashico White standing outside the bathroom.
       {¶5} Jordan testified that Sellers told plaintiff and the other two inmates to stop
and activated his “man down” alarm. According to Jordan, plaintiff stood with his hands
against the wall, but when Sellers subsequently gave plaintiff at least two orders to “cuff
up,” or put his hands behind his back so that he could be handcuffed, plaintiff failed to
comply and instead kept his hands on the wall and his back to Sellers. Jordan stated
that he even told plaintiff himself to cuff up, to no avail. Jordan recalled that the other
two inmates involved in the fight were against the wall at this point. Jordan testified that
plaintiff seemed “discombobulated,” as well as “mad” or “enraged.” Jordan also testified
that there did not appear to be anything physically wrong with plaintiff at that time and
he saw no blood on plaintiff, but that he did not know what had transpired during the
preceding fight.
       {¶6} As described by Jordan, after about ten seconds Sellers grabbed plaintiff
around the waist and threw him to the ground. Jordan related that he had not seen
plaintiff wrestle or otherwise put up any resistance to Sellers, and he did not know
whether plaintiff had said anything to Sellers. Jordan testified that the side of plaintiff’s
Case No. 2014-00644                          -3-                                  DECISION


face struck the floor when he was taken to the ground, and blood ran out of his nose
and mouth onto the floor at that spot. Lieutenant Harper and another corrections officer
ran into the bathroom at that point, Jordan stated. Jordan could not recall what Harper
did, but he did have some recollection that pepper spray was administered.
       {¶7} Tashico White testified that she was employed with defendant as a
corrections officer posted in the housing unit known as “5 Dorm” at MCI from June 2013
until August 2015. White explained that she is now employed with the United States
Postal Service.
       {¶8} As White testified, there were about 115 inmates living in the dormitory and
she was the only officer posted there during her shift. White stated that she and Sellers
had been monitoring a hallway just outside the dormitory, and when she came back into
the dormitory she heard a commotion in the bathroom. White recalled looking into the
bathroom and seeing plaintiff collide with a wall, and from what she could see and hear
it appeared that a fight was in progress. White testified that she yelled across the
hallway to Sellers that there was a fight, and Sellers responded by immediately running
from the hallway into the bathroom.
       {¶9} White stated that she activated her man down alarm and stood by the door
for about one minute, waiting for other officers to respond, and during this time she did
not see what was going on inside the bathroom.            White remembered going in the
bathroom just before Lieutenant Harper, who responded within about 60 to 90 seconds,
she said. According to White, when she went in the bathroom plaintiff was standing
near the wash bay, he had blood all over his face, and he had his hands over his eyes.
White testified that Sellers placed plaintiff against the wall, gave plaintiff multiple orders
to cuff up, and tried to get plaintiff’s arms behind his back, but plaintiff repeatedly said
that he could not see and he kept his hands over his eyes. White related that around
the same time that Harper entered the bathroom, Sellers grabbed plaintiff and took him
to the ground, and at that time Harper asked her to make way for responding officers.
Case No. 2014-00644                          -4-                                 DECISION


White stated that she then exited the bathroom and monitored the dormitory. White
recalled seeing plaintiff, still bloody, being escorted out of the bathroom and into a
wheelchair.     White authenticated an Incident Report that she prepared afterward.
(Defendant’s Exhibit A.)
       {¶10} John Sellers testified that he was employed with defendant as a corrections
officer from 2009 to 2015, and that he worked at two other prisons before starting at
MCI one year before this incident.       Sellers related that he now works for Abbott
Nutrition.    Sellers testified that when he worked for defendant, he received annual
training on the use of force. Sellers also testified that defendant has a Use of Force
Policy, a copy of which he authenticated. (Defendant’s Exhibit J.) Sellers testified
regarding the hierarchy of force that may be used by corrections officers under
defendant’s training and policy, depending on the circumstances, and he stated that one
of the grounds upon which an officer may use force is when an inmate fails to comply
with orders.
       {¶11} Sellers testified that on the day of the incident, he was posted in the
housing unit known as “4 Dorm,” across the hall from 5 Dorm. Sellers explained that he
heard White call out that there was a fight in progress and that she needed assistance,
so he responded to the scene.         From Sellers’ recollection, when he entered the
bathroom plaintiff’s fists were clenched and there was blood on plaintiff’s shirt, although
he did not recall seeing blood on plaintiff’s face. Sellers stated that he identified himself
and gave plaintiff several direct orders to turn around and present his hands to be
cuffed, but plaintiff responded with obscenities and stated that he would not comply,
plaintiff stood in a boxing stance with one foot planted behind and one in front, and it
looked like plaintiff might take a swing at him. Sellers, who stated that he was alone in
the bathroom with a number of inmates, testified that he feared for his own safety and
the safety of others and, in light of plaintiff’s refusal to comply with orders, he used an
escort technique that he had been trained on to grab plaintiff by the triceps of one arm
Case No. 2014-00644                          -5-                                   DECISION


and guide him to the wall. According to Sellers, at no time did plaintiff ever tell him that
he could not see.
       {¶12} Sellers testified that he was not carrying pepper spray, and he did not see
anyone else use pepper spray during the incident. Sellers’ testimony was that after he
put plaintiff against the wall, plaintiff wrestled with him and tried to pull away, and
plaintiff continued to ignore his commands to cuff up. Sellers stated that, in order to
gain control of plaintiff he placed plaintiff on the ground by putting his hands on plaintiff’s
triceps and using his body weight to pull plaintiff down, but even after that plaintiff
continued to resist until additional officers arrived, whereupon he was able to put
handcuffs on plaintiff. As Sellers testified, plaintiff was then escorted to the infirmary,
which is the standard procedure when there has been a use of force.
       {¶13} Sellers testified that he prepared an Incident Report afterward, and he also
prepared a Conduct Report charging plaintiff with violating administrative rules,
specifically Rule 20 (“Physical resistance to a direct order”) and Rule 21 (“Disobedience
of a direct order”). (Defendant’s Exhibits B, D.)
       {¶14} Lieutenant Craig Harper testified that he has been employed with
defendant for 20 years and was promoted to his current rank in 2011. Harper explained
that he now works at the London Correctional Institution, but at the time relevant to this
case he worked at MCI. As a lieutenant, Harper stated, he works under the shift captain
to assist in the operation of the prison, and he supervises the corrections officers and
sergeants working under him. Harper testified that he regularly receives training on how
to interact with inmates, including training on the use of force, and he described the
varying applications and degrees of force comprising the use of force continuum which
defendant uses to train its employees. Harper authenticated a copy of defendant’s Use
of Force Policy. (Defendant’s Exhibit J.)
       {¶15} Harper stated that he was alerted to the incident when an alarm was sent
out from the MCI control room. Harper recalled that he was in the captain’s office when
Case No. 2014-00644                        -6-                                DECISION


that occurred, and he immediately ran to the scene. According to Harper, he looked
through a window as he approached the bathroom and saw plaintiff and Sellers
wrestling with one another while still standing, but by the time he got inside the
bathroom they were on the ground and plaintiff continued to wrestle, despite Sellers
giving orders to stop resisting. Harper testified that there were several other inmates in
the bathroom and the scene was somewhat chaotic, so he ordered the other inmates to
leave, and he testified that he announced to plaintiff who he was and he told plaintiff to
stop resisting.   Plaintiff continued to struggle against Sellers, Harper stated, so he
administered a short burst of pepper spray toward plaintiff, lasting no more than one
second, and finally plaintiff stopped resisting. Harper testified that medical personnel
were requested for plaintiff, who had blood on his face, as it was standard policy to have
an inmate assessed following a use of force.
       {¶16} Harper stated that he remained at the scene to make sure the dormitory
was secure, to gather information about what happened, and to make sure that no
responding officers were injured. Harper testified that he prepared an Incident Report
afterward. (Defendant’s Exhibit C.)
       {¶17} “To recover on a negligence claim, a plaintiff must prove by a
preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a
defendant breached that duty, and (3) that the breach of the duty proximately caused a
plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP-
357, 2006-Ohio-2531, ¶ 10. “Ohio law imposes a duty of reasonable care upon the
state to provide for its prisoners’ health, care, and well-being.” Ensman v. Ohio Dept. of
Rehab. & Corr., 10th Dist. Franklin No. 06AP-592, 2006-Ohio-6788, ¶ 5.
       {¶18} In addition to stating a claim for negligence, allegations of unnecessary or
excessive force being used against an inmate may state a claim for battery. Brown v.
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13. “To
prove battery, the plaintiff must prove that the intentional contact by the defendant was
Case No. 2014-00644                         -7-                                DECISION


harmful or offensive.” Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
12AP-12, 2012-Ohio-3382, ¶ 11.          “A defendant may defeat a battery claim by
establishing a privilege or justification defense.” Brown at ¶ 13, citing Love v. Port
Clinton, 37 Ohio St.3d 98, 99 (1988).
       {¶19} “The use of force is sometimes necessary to control inmates.” Jodrey v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-477, 2013-Ohio-289, ¶ 17.
“Correctional officers considering the use of force must evaluate the need to use force
based on the circumstances as known and perceived at the time it is considered.”
Brown at ¶ 15, citing Ohio Adm.Code 5120-9-01(C). “[T]he precise degree of force
required to respond to a given situation requires an exercise of discretion by the
corrections officer.”   Ensman at ¶ 23.       “In Ohio Adm.Code 5120-9-01, the Ohio
Administrative Code sets forth the circumstances under which correctional officers are
authorized to use force against an inmate.” Id. at ¶ 6.
       {¶20} Ohio Adm.Code 5120-9-01 provides, in pertinent part:
       {¶21} “(C) Guidelines regarding the use of force. * * *
       {¶22} “* * *
       {¶23} “(2) Less-than-deadly force. There are six general circumstances in which
a staff member may use force against an inmate or third person. A staff member may
use less-than-deadly force against an inmate in the following circumstances:
       “(a) Self-defense from physical attack or threat of physical harm.
       “(b) Defense of another from physical attack or threat of physical attack.
       “(c) When necessary to control or subdue an inmate who refuses to obey prison
rules, regulations or orders.
       “(d) When necessary to stop an inmate from destroying property or engaging in a
riot or other disturbance.
       “(e) Prevention of an escape or apprehension of an escapee; or
Case No. 2014-00644                         -8-                                DECISION


         “(f) Controlling or subduing an inmate in order to stop or prevent self-inflicted
harm.”
         {¶24} “Pursuant to Ohio Adm.Code 5120-9-01(C)(1)(a), correctional officers ‘may
use force only to the extent deemed necessary to control the situation.’ Additionally,
correctional officers ‘should attempt to use only the amount of force reasonably
necessary under the circumstances to control the situation and shall attempt to
minimize physical injury.’ Ohio Adm.Code 5120-9-01(C)(1)(b).” Brown at ¶ 16. Also
pertinent is Ohio Adm.Code 5120-9-01(B)(3), which defines “excessive force” as “an
application of force which, either by the type of force employed, or the extent to which
such force is employed, exceeds that force which reasonably appears to be necessary
under all the circumstances surrounding the incident.”
         {¶25} Upon review of the evidence presented at trial, the magistrate finds as
follows. On August 2, 2013, plaintiff was an inmate assigned to the 5 Dorm dormitory at
MCI. Corrections Officer White was the only officer on duty in the dormitory during the
second shift that day. At approximately 4:30 p.m., White went to monitor the hallway
just outside the dormitory. At that time, plaintiff chose to enter the bathroom of the
dormitory and initiate a confrontation with another inmate whom plaintiff accused of
stealing. A two-on-one fight ensued in which the other inmate and his associate used a
broomstick as a weapon to inflict several severe blows to plaintiff’s head and upper
body.
         {¶26} Upon reentering the dormitory, White discovered the fight and shouted out
to Corrections Officer Sellers, who was in the hallway, and she activated her man down
alarm.    Sellers ran to the bathroom, while White stood by the door and waited for
responders to arrive. The fight ended when Sellers entered the bathroom, but plaintiff,
unlike the other two combatants, continued to act aggressively and failed to comply with
Sellers’ instructions. Indeed, plaintiff crudely told Sellers that he would not comply.
There were numerous inmates in the bathroom at this point, but Sellers, having been so
Case No. 2014-00644                         -9-                                  DECISION


close to the dormitory to begin with, was the only staff member on the scene. The
witnesses’ varying recollections demonstrate the chaotic nature of the scene.
       {¶27} After plaintiff failed to comply with multiple orders to turn and face the wall,
Sellers grabbed plaintiff by the triceps and guided him to the wall. Plaintiff physically
resisted Sellers and would not comply with orders to put his hands behind his back to
be cuffed, even at the urging of inmate Jordan. Sellers grabbed plaintiff by the triceps
of each arm and pulled plaintiff to the ground, where plaintiff continued to struggle
against Sellers and resist being cuffed. Lieutenant Harper, the second staff member to
respond, entered the bathroom at this time and ordered plaintiff to stop resisting.
Plaintiff’s belligerence was such that he continued resisting, however, until Harper
administered a short burst of pepper spray.        Plaintiff was thereupon handcuffed by
Sellers. Plaintiff was seen by MCI medical personnel and was later transported to a
local hospital for treatment.
       {¶28} Sellers was justified and privileged to use force based upon plaintiff’s
refusals to comply with orders, combined with plaintiff’s threatening body language and
demeanor. Whether or not plaintiff was disoriented from being struck in the head with
the broomstick, he was conscious and remained on his feet, he made defiant
statements and reacted toward Sellers in a way that was reasonably perceived as
threatening by Sellers, who knew nothing about what transpired during the fight and
was alone with many inmates in an unstable environment. Furthermore, the degree of
force used by Sellers was not excessive and satisfied the duty of reasonable care.
Sellers’ first objective when entering the bathroom was to de-escalate the situation, and
by his presence and commands he stopped the fight. Sellers then initially used verbal
commands with plaintiff, and when that proved ineffective he used minimal force to
guide plaintiff to the wall. Even though Sellers again used verbal commands in an effort
to handcuff plaintiff, plaintiff continued to resist, and only then did Sellers progress to
placing plaintiff on the ground.
Case No. 2014-00644                           -10-                                  DECISION


         {¶29} There was some argument at trial about plaintiff having blood in his eyes
and thus not being able to see Sellers, but even if that were true it is of little
significance, as Sellers announced who he was upon entering the bathroom, plaintiff
could hear Sellers’ orders, and it was not shown that any visual impairment from having
blood in his eyes would have prevented plaintiff from complying with Sellers’ orders.
         {¶30} Although Sellers is the only MCI staff member identified in the complaint, to
the extent that the issues at trial also included the actions of Harper the magistrate
makes the finding that Harper was justified and privileged to use force, and that the
force used by Harper was not excessive and satisfied the duty of reasonable care.
When Harper arrived, the situation in the bathroom remained somewhat chaotic and
plaintiff was on the ground struggling with Sellers.            Harper initially used verbal
commands to try to get plaintiff to stop resisting and submit to being handcuffed, and
only after plaintiff refused those orders did Harper administer a short burst of pepper
spray.
         {¶31} Lastly, even if plaintiff had proven that Sellers was not justified or privileged
in his use of force, one can only speculate whether plaintiff suffered any distinct injury
as a result. Plaintiff was badly beaten in the head and upper body with a weapon by
two other inmates before Sellers arrived, and credible evidence to differentiate the
cause of his injuries is lacking. Moreover, from Sellers’ description, plaintiff was not
thrown to the ground as plaintiff claims. While inmate Jordan claimed that plaintiff was
slammed to the ground face-first, Sellers’ account was more persuasive.
         {¶32} Based on the foregoing, the magistrate finds that plaintiff failed to prove his
claims by a preponderance of the evidence. Accordingly, judgment is recommended in
favor of defendant.
         {¶33} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
Case No. 2014-00644                         -11-                                DECISION


objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).




                                                ROBERT VAN SCHOYCK
                                                Magistrate

cc:
Richard F. Swope                              Amy S. Brown
6480 East Main Street, Suite 102              James P. Dinsmore
Reynoldsburg, Ohio 43068                      Assistant Attorneys General
                                              150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Filed August 16, 2016
Sent To S.C. Reporter 9/29/16
