[Cite as Exum v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-5321.]



                                                       Court of Claims of Ohio
                                                                            The Ohio Judicial Center
                                                                    65 South Front Street, Third Floor
                                                                               Columbus, OH 43215
                                                                     614.387.9800 or 1.800.824.8263
                                                                                www.cco.state.oh.us



MATTHEW EXUM

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2008-09589

Judge Joseph T. Clark
Magistrate Anderson M. Renick

MAGISTRATE DECISION




        {¶1}    Plaintiff brought this action alleging that he was assaulted by defendant’s
employees.         The issues of liability and damages were bifurcated and the case
proceeded to trial before a magistrate on the issue of liability.
        {¶2} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the London Correctional Institution (LCI) pursuant to R.C. 5120.16.
Plaintiff alleges that on October 8, 2007, LCI employees assaulted him.
        {¶3} The Ohio Administrative Code sets forth the circumstances under which
force may be lawfully utilized by prison officials and employees in controlling inmates.
Ohio Adm.Code 5120-9-01(C) provides, in relevant part:
        {¶4} “(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:
        {¶5} “(a) Self-defense from physical attack or threat of physical harm;
        {¶6} “(b) Defense of another from physical attack or threat of physical attack;
Case No. 2008-09589                          -2-                     MAGISTRATE DECISION

       {¶7} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders;
       {¶8} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance;
       {¶9} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶10} “(f)      Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶11}        The court has recognized that “corrections officers have a privilege to
use force upon inmates under certain conditions. * * * Obviously ‘the use of force is a
reality of prison life’ and the precise degree of force required to respond to a given
situation requires an exercise of discretion by the corrections officer.” Mason v. Ohio
Dept. of Rehab. & Corr. (1990), 62 Ohio Misc.2d 96, 101-102, quoting Thomas v. Ohio
Dept. of Rehab. & Corr. (1988), 48 Ohio App.3d 86, 89. (Internal citations omitted.)
       {¶12}        Plaintiff testified that the incident occurred on October 8, 2007, as he
was returning to his dormitory after receiving pain medication from “pill call.” Plaintiff
admitted that he knew he was violating defendant’s regulations which required him to
swallow any pill immediately after it was issued to him and that he had attempted to
conceal a pill in his hand when he was detained by Corrections Officer (CO) Robert
Hinson. Plaintiff testified that Hinson grabbed his left wrist and, without provocation,
punched him and forced him to the floor. According to plaintiff, COs Andrew Goodrich
and Kyle Webb assisted Hinson when they lifted plaintiff up and “slammed” him to the
floor with such force that it caused plaintiff’s head to strike either the floor or another
object, resulting in a deep laceration above plaintiff’s left ear.
       {¶13}        Inmate Jamar Martin testified by deposition that he was walking
towards his dormitory when he observed plaintiff and a CO on the floor. According to
Martin, the CO was on top of plaintiff, who had one hand behind his back, and the CO
struck plaintiff “behind his head” before plaintiff was placed in handcuffs. Martin stated
Case No. 2008-09589                          -3-                 MAGISTRATE DECISION

that plaintiff’s head also hit a vending machine “or something.”            After other COs
responded to the scene, Martin watched the COs lift plaintiff up from the floor and
Martin observed blood on the floor near the vending machine.
       {¶14}      Hinson testified that he was assigned to a “roving post” when he
observed plaintiff walking towards him and acting in a suspicious manner.              Hinson
observed plaintiff move his left hand to his mouth and thereafter Hinson noticed that
plaintiff’s left hand remained closed as if he was concealing something.         According to
Hinson, it was not uncommon for inmates to avoid taking medication as prescribed and
to save such medication for barter. Hinson related that he confronted plaintiff, grabbed
plaintiff’s left wrist, and ordered plaintiff to release what he was holding in his hand.
Hinson testified that plaintiff did not comply with his order and that plaintiff threw the pill
behind a vending machine while Hinson tried to restrain him. During the struggle, both
Hinson and plaintiff fell to the floor behind the vending machine. Goodrich and Webb
then arrived to assist Hinson, pulled plaintiff from behind the vending machine, and
Webb placed plaintiff in handcuffs. Hinson testified that he did not punch plaintiff and
that plaintiff was not slammed onto the floor. Hinson prepared both an incident report
and a conduct report following the incident. (Plaintiff’s Exhibits 6 and 7.)
       {¶15}      Both Goodrich and Webb testified that plaintiff appeared to be
“wrestling” with Hinson behind the vending machine when they arrived at the scene.
Goodrich testified that he heard Hinson order plaintiff to stop resisting.             Neither
Goodrich nor Webb saw Hinson punch plaintiff and they corroborated Hinson’s
testimony that plaintiff was not lifted up and slammed onto the floor. Goodrich and
Webb submitted an incident report and participated in a use-of-force investigation.
       {¶16}      The court finds that plaintiff was less than credible in describing the
events of October 8, 2007, and that the testimony provided by Hinson, Goodrich, and
Webb was more believable. Furthermore, Martin’s version of the incident contradicted
plaintiff’s testimony that the COs “body slammed” him onto the floor. Based upon the
Case No. 2008-09589                           -4-               MAGISTRATE DECISION

testimony, the court finds that the force used to subdue and restrain plaintiff was not
excessive. Accordingly, judgment is recommended in favor of defendant.
          {¶17}      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
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).




                                            _____________________________________
                                            ANDERSON M. RENICK
                                            Magistrate

cc:


Richard F. Swope                                Stephanie D. Pestello-Sharf
6480 East Main Street, Suite 102                Assistant Attorney General
Reynoldsburg, Ohio 43068                        150 East Gay Street, 18th Floor
                                                Columbus, Ohio 43215-3130

AMR/dms
Filed August 22, 2011
To S.C. reporter October 13, 2011
