[Cite as Russell v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-4695.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Mark R. Russell,                                       :

                 Plaintiff-Appellant,                  :                   No. 19AP-424
                                                                     (Ct. of Cl. No. 2018-00978JD)
v.                                                     :
                                                                (ACCELERATED CALENDAR)
Ohio Department of Rehabilitation                      :
and Correction,
                                                       :
                 Defendant-Appellee.
                                                       :



                                            D E C I S I O N

                                   Rendered on November 14, 2019


                 On brief: Mark R. Russell, pro se.

                 On brief: Dave Yost, Attorney General, and Howard H.
                 Harcha, IV, for appellee.

                             APPEAL from the Court of Claims of Ohio

LUPER SCHUSTER, J.
        {¶ 1} Plaintiff-appellant, Mark R. Russell, appeals from a judgment of the Court of
Claims of Ohio granting the motion for summary judgment filed by defendant-appellee,
Ohio Department of Rehabilitation and Correction ("ODRC"). For the following reasons,
we reverse and remand.
I. Facts and Procedural History
        {¶ 2} On June 21, 2018, Russell, an inmate in the custody and control of ODRC,
filed a verified complaint alleging ODRC corrections officers used excessive force against
him at the Pickaway Correctional Institution during a "shakedown" on June 30, 2016.
(Compl. at 1.) Russell specifically alleged the officers grabbed him "[threw] him against the
wall handcuffed him and sprayed him with mace." (Compl. at 1.) He was "also punched
No. 19AP-424                                                                               2


several times in the ribs." (Compl. at 1.) He further alleged that after he was taken out of
the bed-area into the dayroom area, he was "slammed to the ground" and again sprayed
with chemical mace. (Compl. at 1.) He claimed that he sustained lasting injuries to his eyes
and ribcage as a result of the corrections officers' use of force.
       {¶ 3} In March 2019, ODRC moved for summary judgment, arguing its corrections
officers used reasonable force to control and subdue Russell during the shakedown of the
dormitory at Pickaway Correctional Institution. In support, ODRC submitted affidavits,
along with incident reports, of three corrections officers involved in the confrontation with
Russell on June 30, 2016. These corrections officers generally averred that as they were
conducting the shakedown of the dormitory, Russell acted disorderly and became
disrespectful toward the officers. Because Russell did not comply with instructions for him
to be quiet and return to his living quarters, Corrections Officer Victor Bologna placed him
against the wall and ordered him to stop resisting. Russell did not comply with the
directives. Corrections Officer Cody Borling dispensed a short burst of chemical mace
toward Russell's face. Russell was then handcuffed. As he was being escorted out of the
area, he continued to be physically and verbally combative. Consequently, he was "then
taken to the ground and remained uncooperative." (Ex. A, Bologna Aff. at ¶ 4, attached to
Mar. 25, 2019 Def.'s Mot. for Summ. Jgmt.) Corrections Officer Richard Hayes dispensed
a short burst of chemical mace on Russell to stop his continued resistance. After this second
application of chemical mace, Russell became compliant. All three officers averred that no
further force was used against Russell.
       {¶ 4} Russell filed a memorandum in response to ODRC's motion for summary
judgment. He argued in part that ODRC did not address his allegations relating to the
injury to his ribcage. He also attached an unauthenticated copy of a document captioned
Deputy Warden of Operations Review of Use of Force, which according to him failed to
document the use of chemical mace on him.
       {¶ 5} In June 2019, the trial court granted ODRC's motion for summary judgment.
The trial court considered the document Russell submitted, and found that it corroborated
the account of the incident by ODRC's corrections officers. The trial court concluded that
the evidence that ODRC submitted was unrebutted and demonstrated that the force used
against Russell was necessary and reasonable under the circumstances.
No. 19AP-424                                                                             3


       {¶ 6} Russell timely appeals.
II. Assignments of Error
       {¶ 7} Russell assigns the following errors for our review:
                [1.] The Court of Claims erred when it granted defendant's
                motion for summary judgment in violation Civil Rule 56(c) and
                appellant's 6th and 14th amendment rights of the U.S.
                Constitution.

                [2.] Appellant's case/claim was not adjudicated by an impartial
                tribunal in violation of his Ohio and United States
                Constitutional rights.

(Sic passim.)
III. Discussion
       A. First Assignment of Error – Summary Judgment
       {¶ 8} Russell's first assignment of error alleges the trial court erred in granting
summary judgment in favor of ODRC. We agree.
       {¶ 9} An appellate court reviews the granting of summary judgment under a de
novo standard. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v.
Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is
appropriate only when the moving party demonstrates (1) no genuine issue of material fact
exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable
minds could come to but one conclusion and that conclusion is adverse to the party against
whom the motion for summary judgment is made, that party being entitled to have the
evidence most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State
Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 10} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case; the
moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
No. 19AP-424                                                                                4


moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with
specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;
Civ.R. 56(E).
       {¶ 11} Here, Russell sued ODRC for the use of excessive force. Allegations of use of
unnecessary or excessive force against an inmate may state claims for battery and/or
negligence. To prove a claim for battery, a plaintiff must demonstrate that the defendant
"act[ed] intending to cause a harmful or offensive contact, and * * * a harmful contact
result[ed]." Love v. Port Clinton, 37 Ohio St.3d 98, 99 (1988). A defendant may defeat a
battery claim by establishing a privilege or justification defense. Id.; Wheeler v. Hagood,
12th Dist. No. CA95-03-025 (Sept. 11, 1995). However, "the use of excessive force by one
privileged to use force on another may constitute battery." Shadler v. Double D. Ventures,
Inc., 6th Dist. No. L-03-1278, 2004-Ohio-4802, ¶ 19.
       {¶ 12} To prove actionable negligence, a plaintiff must show the existence of a duty,
breach of that duty, and injury proximately caused by the breach. Mussivand v. David, 45
Ohio St.3d 314, 318 (1989). The state owes a duty to inmates to reasonably care for the
inmates' health, care, and well-being. Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
12AP-12, 2012-Ohio-3382, ¶ 12; Ensman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
06AP-592, 2006-Ohio-6788, ¶ 5.
       {¶ 13} The " 'use of force is an obvious 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.' " Miller at ¶ 13, quoting Ensman at ¶ 23; see Ohio Adm.Code 5120-9-
01(A) ("As the legal custodians of a large number of potentially dangerous inmates, prison
officials and employees are confronted with situations in which it may be necessary to use
force to control inmates or respond to resistance."). Ohio Adm.Code 5120-9-01 provides
guidance for determining whether a corrections officer's use of force is reasonable. Under
Ohio Adm.Code 5120-9-01(B)(1), "force" means "the exertion or application of a physical
compulsion or constraint." Corrections 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. Ohio Adm.Code 5120-9-01(C)(1). Ohio Adm.Code 5120-9-01(C)(2) identifies
No. 19AP-424                                                                              5


six general circumstances under which a corrections officer may use less-than-deadly force
against an inmate. Those circumstances include:
              (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

              (f) Controlling or subduing an inmate in order to stop or
              prevent self-inflicted harm.

       {¶ 14} In addition to addressing the circumstances under which a corrections officer
may use force, Ohio Adm.Code 5120-9-01 also provides direction regarding the extent and
amount of the force an officer should use. Pursuant to Ohio Adm.Code 5120-9-01(C)(1)(a),
corrections officers "may use force only to the extent deemed necessary to control the
situation." And they "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). "Excessive force" means "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." Ohio Adm.Code 5120-9-01(B)(3).
       {¶ 15} ODRC submitted affidavits, with incident reports attached, of three
corrections officers involved in the confrontation with Russell on June 30, 2016, in support
of its summary judgment motion. This evidence indicated that Russell was disorderly and
disrespectful when corrections officers were conducting a shakedown at the Pickaway
Correctional Institution dormitory. Because of Russell's combative behavior, the officers
placed Russell against the wall and sprayed chemical mace at him, but he continued to
resist. Even after being handcuffed, Russell had to be taken to the ground and again
sprayed with chemical mace. Once Russell was controlled and subdued, he was escorted
No. 19AP-424                                                                                   6


from the location. The corrections officers denied using any other force on Russell. Thus,
these averments indicated that the force used was necessary and reasonable under the
circumstances. But the record also contained contrary evidence that was not considered by
the trial court.
       {¶ 16} Sworn pleadings, such as a verified complaint, constitute evidentiary material
under Civ.R. 56(C). Columbus v. Bahgat, 10th Dist. No. 10AP-943, 2011-Ohio-3315, ¶ 15.
"Consequently, a trial court can accept factual averments in a verified complaint as
evidence, but only to the extent that those averments are within the personal knowledge of
the affiant who verified the complaint." Id. Here, Russell signed an affidavit that verified
the factual allegations in the complaint. Thus, Russell's verified complaint constituted
evidentiary material that could be considered in resolving ODRC's summary judgment
motion. See id. In his verified complaint, Russell averred, among other things, that he was
punched several times in the ribs, and that these strikes caused lasting injury. Therefore,
the record contained evidentiary material that demonstrated a genuine dispute over
whether the force used was reasonable. Consequently, the trial court erred in granting
ODRC's summary judgment motion.
       {¶ 17} Accordingly, we sustain Russell's first assignment of error.
       B. Second Assignment of Error – Impartial Tribunal
       {¶ 18} In his second assignment of error, Russell alleges his rights were violated in
the trial court because the case was not resolved by an impartial tribunal. He asserts the
judge should have recused himself from this matter due to a purported conflict of interest.
While our disposition of Russell's first assignment of error results in the reversal of the trial
court's judgment, his second assignment of error remains ripe for review because we are
remanding this matter for further proceedings.
       {¶ 19} The proper procedure to seek judicial disqualification of a Court of Claims
judge is to file an affidavit of disqualification with the clerk of the Supreme Court of Ohio
pursuant to R.C. 2743.041. Only the chief justice or his or her designee has authority to
rule on an affidavit of disqualification. R.C. 2701.03; R.C. 2743.041; see Day v. Ohio Dept.
of Rehab. & Correction (In re McGrath), 149 Ohio St.3d 1224, 2016-Ohio-8601, fn. 1 (R.C.
2743.041 "provides that the procedures for filing and deciding an affidavit of
disqualification against judges of the court of common pleas under R.C. 2701.03 also apply
No. 19AP-424                                                                                  7


to affidavits of disqualification against judges of the court of claims."). Thus, this court has
no authority to rule on a request to disqualify a trial court judge from presiding over a
particular case. Cline v. Mtge. Electronic Registration Sys., Inc., 10th Dist. No. 13AP-240,
2013-Ohio-5706, ¶ 32.
       {¶ 20} Accordingly, we overrule Russell's second assignment of error.
IV. Disposition
       {¶ 21} Having sustained Russell's first assignment of error and overruled his second
assignment of error, we reverse the judgment of the Court of Claims of Ohio and remand
this matter to that court for further proceedings consistent with law and this decision.
                                                                          Judgment reversed;
                                                                             cause remanded.

                           KLATT, P.J., and NELSON, J., concur.
