[Cite as Dent v. Ohio Dept. of Rehab. & Corr., 2015-Ohio-5557.]

                                                        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



HAROLD DENT

            Plaintiff

            v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

            Defendant

Case No. 2013-00554

Magistrate Robert Van Schoyck

DECISION OF THE MAGISTRATE

        {¶1} Plaintiff, an inmate in the custody and control of defendant, brought this
action for negligence arising out of an alleged attack upon him by another inmate. On
May 14, 2014, the court entered partial summary judgment in favor of defendant as to
any alleged failure on the part of defendant to prevent the assailant from initiating the
attack, leaving for trial plaintiff’s claim that Corrections Officer John Carpenter was
negligent in failing to timely intervene and prevent further harm to plaintiff once he
became aware of the altercation. The issues of liability and damages were bifurcated
and the case proceeded to trial on the issue of liability.
        {¶2} Plaintiff testified that on December 2, 2012, around 6:30 or 7:00 p.m., he left
the chow hall after supper and proceeded to the dayroom, or common area, of his
housing unit.      Plaintiff stated that he saw an unknown female corrections officer (CO)
who was not regularly assigned to the unit standing just outside the entrance, and he
also walked past CO Carpenter at the officers’ desk in the common area of the unit.
Plaintiff recalled that he proceeded to the stairs, intending to go to his cell on the
second range, but as he started up the stairs he saw inmate Taranta Fuller seated at a
table in the common area with a chessboard. Plaintiff testified that he turned around
and spoke to Fuller and they agreed to play a game of chess.
 Case No. 2013-00554                         -2-                               DECISION



       {¶3} Plaintiff testified that when he sat down on one of the bench-style seats at
the table, he faced the officers’ desk, which he estimated to be about 30 feet away, and
he saw CO Carpenter standing there, looking down at paperwork or something else on
the desk. Plaintiff stated that the female CO was still outside the unit at that point.
According to plaintiff, the chess game had just gotten underway, with each player
having made one move, when he felt a stinging blow to the left side of his head.
Plaintiff testified that Fuller got up immediately, and as he looked up he saw to his right
the assailant, Jeffrey Piorkowski, wielding a belt with a lock attached to the buckle, and
he saw Carpenter looking over but not yet taking any action.
       {¶4} Plaintiff stated that Piorkowski continued to swing the belt at him, and while
he was able to deflect some of the blows with his hands, he was hit in the head about
five times. Plaintiff testified that in the course of trying to defend himself, his foot got
caught on the table and he fell to the ground, where he estimated that he remained for
30 to 45 seconds. Plaintiff recalled seeing Carpenter standing about 10 feet behind
Piorkowski at this point and ordering all the other inmates to lock down in their cells, but
making no effort to intervene. Plaintiff stated that Piorkowski fell on top of him and
they proceeded to wrestle, first on the ground, and then after getting up they fell onto
the table, with plaintiff on top of Piorkowski.
       {¶5} Plaintiff testified that the female CO he had seen outside the unit came to
the scene, and that one of the COs took the weapon from Piorkowski, but the wrestling
continued momentarily. Plaintiff stated that he then heard Carpenter say “break it up,”
or otherwise give some order to stop. Plaintiff, who acknowledged that everything was
“blurry” by this point, testified that Carpenter then pulled him by his arm and
administered pepper spray.        Plaintiff stated that the altercation concluded once the
pepper spray was used. According to plaintiff, there was a pool of blood on the ground
afterward from a wound to the back of his head, as can be seen in a photograph of the
scene. (Plaintiff’s Exhibit 1.)
Case No. 2013-00554                        -3-                                   DECISION



       {¶6} Plaintiff stated that Carpenter issued him a conduct report afterward for
violating institutional rules 21 (“Disobedience of a direct order”) and 19 (“Fighting – with
or without weapons, including instigation of, or perpetuating fighting”).          (Plaintiff’s
Exhibit 8.)   Plaintiff asserts, though, that his actions in the altercation were in
self-defense and that he did not hear Carpenter give any direct order until the
altercation was nearly over with. On December 5, 2012, plaintiff submitted an informal
complaint through the prison grievance process, complaining that Carpenter had not
timely intervened during the altercation.        (Plaintiff’s Exhibit 6.)   At trial, plaintiff
explained that Carpenter appeared to be aware of the incident immediately after plaintiff
was struck in the head the first time, and although plaintiff allowed that Carpenter
probably could not have made it over from the desk in time to prevent the first two or
three blows to plaintiff’s head, Carpenter could have intervened physically or with
pepper spray and stopped the altercation anytime thereafter.
       {¶7} Inmate Benny Byron, Jr. testified that he lived in the same housing unit and
was acquainted with plaintiff. Byron recalled that at the time of the incident, he was
sitting in the common area watching a Cleveland Browns football game on television,
very near plaintiff. Byron stated that Piorkowski, whom he described but whose name
he did not know, ran up and swung a lock attached to a belt or string at plaintiff and hit
plaintiff in the head.   Byron explained that he jumped up and momentarily thought
about intervening, but changed his mind after looking around at the inmates gathered in
the area, realizing that Piorkowski, who is white, appeared to have several white friends
or associates standing by, whereas Byron and plaintiff are black.
       {¶8} Byron testified that when he looked around the dayroom just as the
altercation began, he also observed a CO at the officers’ desk looking at the computer,
and he further testified that he was not sure when the CO became aware of what was
going on as he was most focused on plaintiff, trying to decide whether to get involved.
Byron recounted that plaintiff was struck about three times when he fell to the floor and
 Case No. 2013-00554                        -4-                                 DECISION



got entangled with Piorkowski, and according to Byron there was a great deal of
commotion by this time from all the inmates watching. Byron stated that the CO came
over from the desk, told all the inmates to get in their cells, and said “let him go” at a
point when plaintiff, appearing dazed, was holding onto Piorkowski.            According to
Byron, the CO was standing over plaintiff and Piorkowski with a can of pepper spray in
his hand as he gave one or two orders of this nature, and almost immediately after
giving those orders he administered the spray. Byron stated that he cannot say how
long it took the CO to come over from the desk, but plaintiff had probably been struck
about six times before the CO arrived. Byron also stated that he does not remember
any other COs coming to the scene.
       {¶9} Inmate Taranta Fuller testified by way of deposition (Joint Exhibit 1) that he
was not very familiar with plaintiff, but that they lived in the same housing unit and were
playing chess when the incident occurred. Fuller testified that the dayroom was full of
inmates at the time. Fuller recalled that Piorkowski, whom he described but whose
name he did not know, came up from behind plaintiff and hit plaintiff with something,
but he could not see exactly what it was. Fuller, who stated that he jumped up and got
out of the way, testified that plaintiff put his hands up around his head and got up and
started fighting back, and he recalled that plaintiff fell at some point during the
altercation.
       {¶10} Fuller explained that generally there were two COs assigned to the housing
unit every shift, and typically one would be at the officers’ desk while the other patrolled.
 Fuller estimated that the desk was no more than 30 feet away from the table where he
and plaintiff were sitting.   Fuller stated that he was not exactly sure of the COs’
whereabouts when the altercation began, but that it “didn’t take them long to get there,”
as the first CO arrived within one minute. According to Fuller, the first CO to arrive
pressed his “man down” button or otherwise requested backup, told plaintiff and
Piorkowski to break it up approximately two times within about five seconds, and then
Case No. 2013-00554                       -5-                                DECISION



administered pepper spray on both inmates.         Fuller testified that the altercation
continued briefly until other COs who responded to the scene physically separated
plaintiff and Piorkowski.
       {¶11} Corrections Officer John Carpenter testified that his normal work
assignment in December 2012 was the second shift in Housing Unit 10A, where these
events occurred.    Carpenter stated that he was at the officers’ desk writing up a
conduct report on the computer when he heard a commotion and saw inmates
scattering. Carpenter stated that he looked over and saw Piorkowski swinging a belt at
plaintiff, who was seated at a table approximately 75 feet from the officers’ desk.
Carpenter testified that within about two seconds he left the desk and began running
toward the scene, and he also reported over the radio that a fight was in progress.
       {¶12} According to Carpenter, who stated both that he never saw either inmate
on the ground and that plaintiff had gotten up from his seat and was squared up with
Piorkowski in a fighting stance by the time he got to the scene, he screamed at both
inmates to break it up but they disobeyed his commands and continued fighting.
Carpenter testified that he also gave Piorkowski two direct orders to drop the weapon,
and after the second order Piorkowski did let go of it but continued wrestling with
plaintiff, and they ended up on top of the table.          Carpenter testified that he
administered pepper spray to the facial area of both inmates yet they carried on
wrestling with one another for a moment, but, after putting on gloves due to the
presence of blood, he was able to physically separate them and end the altercation.
       {¶13} Carpenter stated that his partner that day, a CO Kronick, was a relief
officer assigned to the unit for the day and had been out making rounds while he was at
the desk. Carpenter stated that she had come to the scene right around the time he
administered the spray, just before he physically separated the inmates, and she was
able to clear the other inmates out and secure the area while he dealt with plaintiff and
Piorkowski. Carpenter also stated that some of the COs assigned to work in the prison
 Case No. 2013-00554                       -6-                               DECISION



yard responded to the scene, but that the altercation was basically over with by the time
they arrived. Afterward, Carpenter prepared an incident report (Defendant’s Exhibit A)
and issued the aforementioned conduct report charging plaintiff with the two rules
violations, as well as another conduct report charging Piorkowski with those and several
other rules violations. (Defendant’s Exhibit B.)
       {¶14} Carpenter testified that he attended defendant’s training academy when he
was hired to work at the prison, and that he continues to regularly receive training from
defendant, including use of force and weapons training.       Carpenter explained that
under defendant’s policies, when COs see a fight they are supposed to report it over
the radio and deploy the man down button, and he acknowledged that in this case,
while he did report the situation over the radio, he did not press his man down button.
Carpenter further explained that COs, who are armed with only pepper spray, are
supposed to initially give inmates verbal commands to stop fighting, and they are to
refrain from physically intervening until backup arrives. Carpenter stated that when an
inmate has a weapon, particular attention must be paid to prevent it from being used
against other inmates or staff, and he also stated that if blood is involved, COs should
take measures to avoid coming into contact with it.
       {¶15} “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. “In the context of a custodial relationship between
the state and its prisoners, the state owes a common-law duty of reasonable care and
protection from unreasonable risks.” Jenkins v. Ohio Dept. of Rehab. & Corr., 10th
Dist. Franklin No. 12AP-787, 2013-Ohio-5106, ¶ 8. “The state’s duty of reasonable
care does not render it an insurer of inmate safety.” Allen v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 14AP-619, 2015-Ohio-383, ¶ 17. “Reasonable care is
Case No. 2013-00554                       -7-                                DECISION



that degree of caution and foresight an ordinarily prudent person would employ in
similar circumstances, and includes the duty to exercise reasonable care to prevent an
inmate from being injured by a dangerous condition about which the state knows or
should know.”   McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
04AP-177, 2004-Ohio-5545, ¶ 16.
      {¶16} Upon review of the evidence adduced at trial, the magistrate finds that on
December 2, 2012, at approximately 7:15 p.m., plaintiff was seated at a table in his
housing unit playing chess with inmate Fuller when inmate Piorkowski suddenly came
up from behind and struck plaintiff in the head with a lock attached to the buckle of a
belt. The magistrate finds that this caused a commotion among the numerous inmates
in the vicinity, at which time CO Carpenter, who was across the room typing up a
conduct report at the officers’ desk, looked around and saw Piorkowski swinging the
belt at plaintiff as he sat at the table, whereupon Carpenter radioed for backup and ran
to the scene. Thus, the magistrate finds that Carpenter did not see Piorkowski’s initial
attack but became aware shortly after.
      {¶17} The magistrate finds that just after the altercation commenced, plaintiff got
entangled in the table as he turned around toward Piorkowski, and he was briefly on the
floor deflecting blows from the belt that were delivered in quick succession, but that by
the time Carpenter became aware of the situation, radioed for backup, and ran to the
scene, plaintiff was squared up with Piorkowski and was fighting back. Indeed, the
magistrate finds that plaintiff was either holding onto Piorkowski or laying atop him on
the table very soon after Carpenter arrived. The magistrate finds that Carpenter issued
approximately two orders for plaintiff and Piorkowski to stop fighting, and he also acted
to secure the weapon by twice ordering Piorkowski to drop it, which he did, and at this
point CO Kronick, who had been on foot patrol in or around the housing unit, responded
to the scene and helped secure the scene by getting the other inmates out of the area.
The magistrate finds that plaintiff and Piorkowski failed to comply with Carpenter’s
Case No. 2013-00554                          -8-                               DECISION



orders to stop fighting, and, as Byron and Fuller testified, within seconds after issuing
those orders Carpenter administered pepper spray at both plaintiff and Piorkowski.
The magistrate finds that plaintiff and Piorkowski continued to wrestle, and, with backup
present, Carpenter without delay put on gloves and intervened to physically separate
them, which was accomplished with the assistance of Kronick and other COs who
arrived just as the matter was concluding.
       {¶18} The magistrate finds that Carpenter acted reasonably and substantially
complied with defendant’s policies relative to inmate fights and the use of force. While
it is understandable that the incident seemed much longer to plaintiff, who admitted that
parts of the incident are blurry in his memory, the magistrate finds that it transpired
more quickly than he described, and at no point did Carpenter idly stand by or
otherwise fail to act reasonably in response to the circumstances he was presented
with. Although plaintiff argued at trial that Carpenter failed to properly supervise the
block so as to prevent the attack or learn of it sooner, as previously stated these were
not the issues to be tried. While plaintiff points to the fact that Carpenter did not press
his man down button as evidence of negligence, the magistrate finds that Carpenter
nonetheless timely requested assistance over the radio, other COs quickly responded
to that request, and the evidence does not support a finding that the failure to press the
man down alarm proximately resulted in any harm.
       {¶19} Based upon the foregoing, the magistrate finds that plaintiff has failed to
prove his claim by a preponderance of the evidence.             Accordingly, judgment is
recommended in favor of defendant.
       {¶20} 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
 Case No. 2013-00554                        -9-                              DECISION



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:


Amber W. Hertlein                             Richard F. Swope
James P. Dinsmore                             6480 East Main Street, Suite 102
Assistant Attorneys General                   Reynoldsburg, Ohio 43068
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Filed March 20, 2015
Sent To S.C. Reporter 12/31/15
