[Cite as Fife v. Dept. of Rehab. & Corr., 2016-Ohio-1279.]




HAYDEN FIFE                                             Case No. 2015-00523

        Plaintiff                                       Judge Patrick M. McGrath
                                                        Magistrate Gary Peterson
        v.
                                                        ENTRY GRANTING DEFENDANT’S
DEPARTMENT OF REHABILITATION                            MOTION FOR SUMMARY JUDGMENT
AND CORRECTION

        Defendant



        {¶1} On December 8, 2015, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the
court for a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can 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 or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
        {¶4} According to the complaint, plaintiff is an inmate in the custody and control
of defendant.       The complaint, which contains few factual details, provides that on
Case No. 2015-00523                            -2-                                  ENTRY


January 14, 2015, staff members at the Ross Correctional Institution (RCI) “maliciously
assaulted Plaintiff, knowing fully well that Plaintiff is on Defendant’s mental health
caseload.” Plaintiff alleges that the staff members should have known that he had not
taken his mental health medication and that no use of force documentation was
initiated.
        {¶5} Defendant argues that it is entitled to summary judgment on plaintiff’s claim
arising from the alleged assault, and that, to the extent that plaintiff has alleged that
defendant’s staff members failed to follow internal rules or procedures, there is no
cause of action for such alleged violations.
        {¶6} In addition to the theory of assault pleaded in the complaint, it has been held
that allegations of “unnecessary or excessive force against an inmate may state claims
for battery and/or negligence.” Brown v. Dept. of Rehab. & Corr., 10th Dist. Franklin No.
13AP-804, 2014-Ohio-1810, ¶ 13.
        {¶7} “To prove assault under Ohio law, plaintiff must show that the defendant
willfully threatened or attempted to harm or touch the plaintiff offensively in a manner
that reasonably placed the plaintiff in fear of the contact. To prove battery, the plaintiff
must prove that the intentional contact by the defendant was harmful or offensive. Ohio
courts have held that, in a civil action for assault and battery, the defendant has the
burden of proving a defense of justification, such as the exercise of lawful authority.”
(Citations omitted.) Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
12AP-12, 2012-Ohio-3382, ¶ 11.
        {¶8} “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
Case No. 2015-00523                         -3-                                    ENTRY


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.
       {¶9} “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.
       {¶10} Ohio Adm.Code 5120-9-01 provides, in pertinent part:
       {¶11} “(C) Guidelines regarding the use of force. * * *
       {¶12} “* * *
       {¶13} “(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:
       {¶14} “(a) Self-defense from physical attack or threat of physical harm.
       {¶15} “(b) Defense of another from physical attack or threat of physical attack.
       {¶16} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders.
       {¶17} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance.
       {¶18} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶19} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
Case No. 2015-00523                         -4-                                    ENTRY


       {¶20} “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.”
       {¶21} In support of its motion, defendant submitted the affidavits from the
following RCI staff members: Corrections Captain Nathan Thompson, Corrections
Lieutenant Kevin S. Riffe, Corrections Lieutenant Clyde L. Spencer, Corrections Officer
Jered W. Knisley, and Corrections Officer Brad T. Reese.
       {¶22} As set forth in the affidavits, on January 14, 2015, plaintiff was brought to
Corrections Captain Thompson’s office as a result of being suspected of illicitly
smuggling food out of the chow hall. While in Thompson’s office, Corrections
Lieutenants Riffe and Spencer and Corrections Officers Knisley and Reese describe
plaintiff as yelling aggressively and argumentatively, and generally acting in a
threatening manner. Riffe, Spencer, and Knisley aver that plaintiff remarked something
to the effect of “bring it on; I am ready” while taking off his jacket. Each of the affiants
avers that plaintiff thereafter swung his fist at Spencer, missed, and struck Knisley.
Riffe avers that he subsequently grabbed plaintiff over the shoulder, and that along with
the assistance of Reese and Knisley, plaintiff was taken to the ground. Riffe, Reese,
and Knisley aver that plaintiff continued to struggle while on the ground but they were
able to put handcuffs on plaintiff at that point. Thompson, Riffe, Spencer, Knisley, and
Reese, further state that they were not aware of whether plaintiff was taking any
medication for mental health issues and that pursuant to DRC policy, the appropriate
Case No. 2015-00523                         -5-                                   ENTRY


level of force for a given situation does not change dependent on whether the inmate is
on such medication. All of the affiants authenticate incident reports that they prepared
to document the matter. Thompson authenticates documents related to the use of force
investigation.
       {¶23} As stated above, plaintiff did not file a response to defendant’s motion, nor
did he provide the court with any affidavit or other evidence to support his allegations.
Civ.R. 56(E) states, in part, that “[w]hen a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party’s pleadings, but the party’s response, by affidavit or
as otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial.   If the party does not so respond, summary judgment, if
appropriate, shall be entered against the party.”
       {¶24} Based upon the uncontested affidavit testimony provided by defendant,
reasonable minds can only conclude that plaintiff was brought to Thompson’s office as a
result of being suspected of illicitly smuggling food out of the chow hall. While in
Thompson’s office, plaintiff was argumentative, aggressive and threatening.          It is
undisputed that plaintiff remarked “bring it on; I am ready,” removed his jacket, and
swung his fist at Spencer and struck Knisley. Thereafter, plaintiff was taken to the
ground where he continued to resist; however, Riffe, Reese, and Knisley were able to
place handcuffs on plaintiff. Finally, it is undisputed that none of the officers involved
knew whether plaintiff was taking medication for any mental health issues. Each of the
officers completed incident reports and Thompson completed a use of force
investigation.
       {¶25} It can only be concluded that, under the circumstances, the officers had the
lawful authority and privilege to use such force as may have reasonably appeared
necessary under the circumstances to both control or subdue plaintiff and to prevent
harm to others and themselves. It must also be concluded that the degree of force used
Case No. 2015-00523                          -6-                                     ENTRY


during the incident was justified and privileged, and satisfied the duty of reasonable
care.
        {¶26} To the extent plaintiff has alleged that defendant’s employees violated
internal rules or procedures, such internal rules, policies, procedures, and regulations
are primarily designed to guide correctional officials in prison administration rather than
to confer rights on inmates. State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479
(1997); Peters v. Dept. of Rehab & Corr., 10th Dist. Franklin No. 14AP-1048, 2015-
Ohio-2668. Accordingly, there is no claim for relief based solely upon the violation of
internal rules and policies. Triplett v. Warren Corr. Inst., 10th Dist. Franklin No. 12AP-
728, 2013-Ohio-2743, ¶ 10.
        {¶27} Based upon the foregoing, it can only be concluded that there are no
genuine issues of material fact and that defendant is entitled to judgment as a matter of
law on plaintiff’s assault claim. To the extent plaintiff claims a violation of internal rules
or procedures, no such cause of action exists. Accordingly, defendant’s motion for
summary judgment is GRANTED and judgment is rendered in favor of defendant. All
other pending motions are DENIED as moot.             All previously scheduled events are
hereby VACATED. Court costs are assessed against plaintiff. The clerk shall serve
upon all parties notice of this judgment and its date of entry upon the journal.



                                                   PATRICK M. MCGRATH
                                                   Judge

cc:
Hayden Fife, #665-366                         Lee Ann Rabe
P.O. Box 120                                  Assistant Attorney General
Lebanon, Ohio 45036                           150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Filed February 24, 2016
Sent To S.C. Reporter 3/25/16
