[Cite as Atkinson v. Dept. of Rehab. & Corr., 2010-Ohio-3145.]

                                      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




ROBERT L. ATKINSON

       Plaintiff

       v.

DEPT. REHABILITATION AND CORRECTION

       Defendant

        Case No. 2009-01379-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Robert L. Atkinson, an inmate under the custody of defendant,
Department of Rehabilitation and Correction (DRC), filed this action alleging he suffered
personal injury on July 16, 2008 while incarcerated at DRC’s Warren Correctional
Institution (WCI). Specifically, plaintiff asserted he suffered a fractured nose and lung
damage as a result of being “assaulted” by two WCI employees, identified as twin
brothers, Officer Paul Adkins and Officer Stephen Adkins. Plaintiff contended he was
punched and kicked in the face and his head while he was handcuffed. Plaintiff further
contended he was “maced,” which exacerbated his pulmonary disease, sarcoidosis.
Plaintiff filed this complaint seeking to recover damages in the amount of $2,500.00,
maintaining he suffered injuries as a result of Paul Adkins and Stephen Adkins using
excessive force upon him.1 Payment of the filing fee was waived.

        1
           Plaintiff has also made allegations that defendant’s actions toward him constituted violations of
the Eighth and Fourteenth Amendments of the United States Constitution.
        It is well-settled that claims based upon alleged constitutional violations are not actionable in the
Court of Claims. See Thompson v. Southern State Community College (June 15, 1989), Franklin App.
No. 89AP-114; Burkey v. Southern Ohio Corr. Facility (1988), 38 Ohio App. 3d 170, 528 N.E. 2d 607;
Gersper v. Ohio Dept. of Hwy. Safety (1994), 95 Ohio App. 3d 1, 641 N.E. 2d 113. Any constitutional
        {¶ 2} Defendant acknowledged WCI employee, Officer Paul Adkins, used force
against plaintiff on July 16, 2008. However, defendant specifically denied the use of
force was excessive or that plaintiff suffered the injuries alleged from the use of force.
Defendant explained plaintiff was placed on fifteen days of “cell isolation” on July 11,
2008 for a rule violation, “smoking in an unapproved area.” The cell isolation status was
imposed after plaintiff was issued a “Conduct Report” (copy submitted) charging him
with violating institutional rules and a guilty finding was rendered by the WCI Rules
Infraction Board (copy of “Hearing Officers Report” submitted).                     Defendant related,
“[c]ell isolation means that except for certain limited exceptions an inmate is restricted to
his cell.” On July 16, 2008, plaintiff left his cell carrying a crock pot and walked into the
WCI dayroom toward the ice machine. Defendant noted Officer Paul Adkins observed
plaintiff’s actions and “gave plaintiff several orders to return to his cell he was violating
his cell isolation.” According to defendant, plaintiff instead of complying with the orders
to return to his cell, “swung this ‘crock pot’ by its electrical cord striking Officer P. Adkins
in the head.” Defendant explained force was then used against plaintiff “to subdue
(him), place him in restraints and remove him to the security control.”                        Defendant
recorded plaintiff “struggled and fought during this process.”                  Defendant specifically
denied the force used to subdue and restrain plaintiff was excessive or that plaintiff
received anything but minor injuries at the time.
        {¶ 3} Defendant maintained plaintiff was taken to the WCI infirmary for a
medical examination “immediately following this incident.” A “Medical Exam Report”
(copy submitted) filed by WCI nurse, Frances McCloud in connection with the use of
force event, confirms that plaintiff was examined within minutes after being subdued
and restrained. Upon examination, McCloud observed plaintiff had two swollen lumps
on his right forehead and scratches on his cheek and the bridge of his nose. McCloud
reported plaintiff complained of headache, dizziness, and chest burning. Plaintiff’s vital
signs were recorded as follows: blood pressure: 132/85, heart rate: 96, respiration: 18,
and temperature: 97.3 . McCloud found plaintiff’s lungs sounded clear and his heart
sounds were within the normal limits. McCloud also found by examining plaintiff’s pupils
that he did not manifest any signs of serious head trauma. Under the caption “Nurses


violation claim or claim of federal civil rights violation is not cognizable. See Howard v. Supreme Court of
Ohio, Franklin App. No. 04AP-1093, 2005-Ohio-2130; Wright v. Dept. of Rehab. & Corr. (Mar. 28, 1995),
Assessment” McCloud noted plaintiff had an “alteration in comfort (related to) trauma.”
According to information provided in the “Medical Exam Report” plaintiff refused any
treatment at the time and was then released to segregation.           WCI Nurse Frances
McCloud also examined and assessed Officer Paul Adkins on July 16, 2008 compiling a
“Medical Exam Report” (copy submitted) in the process. McCloud noted Officer Paul
Adkins had lacerations on the left side of his face and the back of his neck, as well as
scratches on his back, right arm, and right knee. Additionally, McCloud noted an “open
area” was observed on Officer Adkins’ lip. Adkins’ vital signs were recorded as follows:
blood pressure: 133/82, heart rate: 114, respiration: 18, temperature: 97.2 . McCloud
wrote she treated Adkins by applying cleansing agents and topical antibiotic ointment to
the affected areas.      Under the caption, “Nurse’s Assessment,” McCloud recorded
Adkins had “[a]lteration in (his) skin integrity (right trauma) lacerations (and) scratches.”
According to information provided in the “Medical Exam Report,” Adkins returned to
work and was referred to his personal physician.
       {¶ 4} As part of the investigatory process of the July 16, 2008 incident involving
plaintiff, Officer Paul Adkins filed an “Incident Report” (copy submitted) containing his
own handwritten narrative description. Adkins recalled he observed plaintiff on July 16,
2008 at approximately 3:05 p.m. out of his cell in the WCI dayroom walking toward the
ice machine carrying a cup and a crock pot. Adkins further recalled he gave plaintiff
four direct orders to return to his cell. According to Adkins, plaintiff “then turned around
started to slow walk away.”       Adkins related he “noticed Inmate Atkinson started
wrapping the cord (of the crock pot) around his hand.” Adkins noted he responded to
plaintiff’s action by reaching for his mace to spray plaintiff. Adkins recorded he was
struck “in the head several times with the crock pot” manipulated by plaintiff, before “my
partner (officer) Simmons and I took Inmate Atkinson to the ground [a]ttempting to place
restraints on Inmate Atkinson.” Adkins asserted plaintiff resisted being restrained with
the two wrestling around the dayroom floor and plaintiff continued to resist even after his
right hand was placed in restraint by both Adkins and Officer Simmons.               Adkins
observed plaintiff continued to resist as additional WCI staff arrived on the scene to
place plaintiff in restraints Adkins advised that due to plaintiff’s persistence in resisting
he was initially escorted to a segregation unit before being escorted to the infirmary by

Franklin App. No. 94AP108-1169.
two WCI employees.
       {¶ 5} Pursuant to internal policy the matter involving plaintiff was referred to
defendant’s “Use of Force Committee,” an investigation was conducted, and a “Use of
Force Committee Report” (copy submitted) was filed finding the use of force against
plaintiff “was justified and was not inappropriate or excessive.” No disciplinary action
was initiated against the WCI staff members involved, Officers Paul Adkins, Stephen
Adkins, Kevin Simmons, Roman Mulligan, Tom Lamb, and Matthew Croswell.                     All
officers were interviewed and presented signed statements. Plaintiff initially refused to
make a statement, but subsequently on August 5, 2008, he did provide a handwritten
statement (copy submitted) of his recollection of the events of July 16, 2008. The “Use
of Force Committee” (Committee) essentially adopted in their findings and conclusions
the version of events as stated by Officer Paul Adkins in the July 16, 2008 “Incident
Report.” The Committee found:
       {¶ 6} 1) On July 16, 2008 at approximately 3:00 p.m. plaintiff, who was on cell
isolation at the time, was observed in the WCI dayroom carrying a crock pot and cup
walking toward the ice machine;
       {¶ 7} 2) Officer Paul Adkins, upon observing plaintiff out of his cell, issued four
direct orders to plaintiff to return to his cell, before any indication of compliance with the
orders was made;
       {¶ 8} 3) As plaintiff slowly walked away Officer Paul Adkins noticed him
wrapping the cord of the crock pot around his hand. In response to this action, Adkins
began to reach for his spray; whereupon plaintiff struck Adkins in the head several times
with the crock pot;
       {¶ 9} 4) Officer Kevin Simmons, who was assigned to the area, responded to
the situation, and assisted Officer Adkins in wrestling plaintiff to the dayroom floor,
where plaintiff landed on top of Officer Adkins.       As plaintiff continued to resist and
struggle with Officer Adkins additional WCI staff arrived at the scene and plaintiff was
cuffed. Plaintiff was then escorted to the WCI infirmary for a medical examination and
then removed to segregation “without further incident.”
       {¶ 10} The “Inmate Use of Force Statement” plaintiff wrote offers a differing
version of the July 16, 2008 occurrence. Plaintiff’s handwritten statement offering his
description of the incident is reproduced in its entirety. Plaintiff wrote: “On Mental
Health caseload, placed on cell isolation. Came out to get ice in order to cool down due
to the medication I was taking. I asked Officer (Paul Adkins) if I could get some ice, he
told me to get to my cell. I walked toward my cell and turned around to look at the
officer. He said if I looked at him again, he would mace me. As I walked to my cell, I
looked around and at that time Officer Adkins maced me. I was punched and kicked by
officer Adkins. Many inmates gathered around Officer Adkins brother (Officer Stephen
Adkins) came in and also hit me. Lt. Williams arrived and ordered the officers to take
me to medical.”
       {¶ 11} Defendant contended plaintiff failed to produce sufficient evidence to
prove the force use against him was unjustified or unnecessary. Defendant asserted
force against plaintiff was used only as a means to subdue him after he had assaulted a
WCI employee.      Defendant related that under the circumstances presented and in
compliance with internal regulations the force used against plaintiff was appropriate.
Defendant explained “correction officers are authorized to use force pursuant to AR
5120-9-01" with six circumstances listed for situations where use of force is appropriate:
       {¶ 12} “(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:
       {¶ 13} “(a) Self-defense from physical attack or threat of physical harm.
       {¶ 14} “(b) Defense of another from physical attack or threat of physical attack.
       {¶ 15} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders.
       {¶ 16} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance.
       {¶ 17} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶ 18} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶ 19} Defendant maintained plaintiff’s claim “has no merit” since he has failed to
prove the force used against him was inappropriate or excessive. Defendant argued
plaintiff’s claim should be denied.
       {¶ 20} Plaintiff filed a voluminous response insisting he suffered a “fractured
nose” and aggravation of his sarcoidosis “lung disease” as a result of being struck and
maced by Officer Paul Adkins on July 16, 2008.                      Plaintiff also reasserted he was
assaulted by Officer Stephen Adkins. Furthermore, plaintiff claimed that subsequent to
the July 16, 2008 incident he was treated with deliberate indifference2 by defendant’s
medical staff in regard to his disease condition, sarcoidosis and retaining Paul Adkins
as a corrections officer despite past displays of improper conduct. Plaintiff did not offer
sufficient evidence other than his own assertions to prove he actually suffered a
fractured nose and/or exacerbation of his sarcoidosis disease condition as a result of
the July 16, 2008 use of force incident. Plaintiff did submit a copy of a document
generated by defendant’s Corrections Medical Center that appears to be a medical
assessment of x-rays of plaintiff’s nasal bones taken on August 5, 2008.                                  The
document, signed by Charles H. Muncrief, D.O. contains the notation:                              “[t]here is
minimal bony fragmentation about the tip of the nasal spine that could be related to non-
displaced fracture.”
        {¶ 21} Additionally, plaintiff submitted documentation that Officer Paul Adkins had
been investigated for an act committed at the Ross Correctional Institution (RCI) on
January 28, 2007, disciplined for an act committed on October 10, 2007, and
subsequently terminated from his position as a Correctional Officer based on remarks
he made toward plaintiff on July 16, 2008, immediately following the use of force
incident. In regard to the January 28, 2007 event, after conducting an investigation, the
investigating officer concluded, Adkins had probably thrown a state chair over the top
range of the RCI H-3B Housing Unit. The falling chair almost struck an inmate. Adkins
was “fined 2 days pay” by WCI supervisors for exercising poor judgment on October 10,
2007 in his capacity as a Correctional Officer by wrestling with an inmate on the
stairwell/fire escape located in the 2C Housing Unit at WCI.                         Finally, Adkins was
terminated from his employment, effective October 1, 2008, for a racial slur he directed
at plaintiff on July 16, 2008, as he left the WCI 3D Housing Unit. According to the notice
of termination sent to Adkins, “[t]here were several staff members and inmates in the
area” at the time the racial slur comment was made. Adkins was informed his removal


        2
           As plaintiff pointed out claims of “deliberate indifference” are characterized as violations of
constitutional rights grounded in rights under Section 1983, Title 42 U.S. Code. Any allegations or claims
couched as violations of plaintiff’s constitutional rights are dismissed. This court lacks jurisdiction to hear
a claim to the extent it asserts constitutional violations. Gersper. Constitutional claims and claims based
on Section 1983, Title 42, U.S. Code are not actionable in this court. Bleicher v. Univ. of Cincinnati
was based on the following infraction(s): “threatening, intimidating, coercing, or use of
abusive language toward any individual under the supervision of the Department.”
        {¶ 22} Plaintiff reasserted he was assaulted by Officer Paul Adkins on July 16,
2008 and seemingly denied he hit Adkins with a crock pot. Plaintiff acknowledged he
was criminally charged with assault, but characterized the charge as a “false
(accusation).”3 Plaintiff maintained that “defendant had been aware of Officer Paul
Adkins’ violent behaviors against namely African American-Black inmates” at various
institution. Essentially, plaintiff has argued defendant negligently retained Adkins as a
Correctional Officer despite knowledge of his “reckless” past behaviors. Plaintiff again
contended excessive force was used against him on July 16, 2008 by Paul Adkins.
Additionally, plaintiff claimed the conduct of Paul Adkins constituted the intentional
infliction of emotional distress. Plaintiff expressed the opinion that “his fractured nose
and violent illness (lung disease), after being sprayed with mace, associated with his
claimed excessive use of force, constitute sufficient injury to support an award of
damages for emotional trauma, added with being criminally prosecuted.” Also, plaintiff
related that Adkins’ racial slur remark has caused plaintiff “to fear for his safety.”
        {¶ 23} To prevail on a claim of intentional infliction of emotional distress, plaintiff
must show that: “(1) defendant intended to cause emotional distress, or knew or should
have known that actions taken would result in serious emotional distress; (2)
defendant’s conduct was extreme and outrageous; (3) defendant’s actions proximately
caused plaintiff’s psychic injury; and (4) the mental anguish plaintiff suffered was
serious.” Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App. 3d 73, 82, 603 N.E.
2d 1126; citing Pyle v. Pyle (1983), 11 Ohio App. 3d 31, 34, 11 OBR 63, 463 N.E. 2d
98.
        {¶ 24} Furthermore, plaintiff failed to establish that defendant’s conduct was “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Yeager v. Local Union 20, Teamsters (1983), 6 Ohio St. 3d 369, 375, 6
OBR 421, 453 N.E. 2d 666, quoting Restatement of the Law 2d, Torts (1965), 73,

College of Med. (1992), 78 Ohio App. 3d 302, 604 N.E. 2d 783.
         3
           Plaintiff was convicted of a violation of R.C. 2903.13(A) (assault) on September 29, 2009 after a
jury trial in the Warren County Court of Common Pleas. On October 1, 2009 the conviction was
appealed.
Section 45, Comment d. “It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by ‘malice,’ or a degree of
aggravation which would entitle the plaintiff to punitive damages for another tort. * * *
Generally, the case is one in which the recitation of the facts to an average member of
the community would arouse his resentment against the actor, and lead him to exclaim,
‘Outrageous!’ The liability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” Yeager at 374-375.
      {¶ 25} In the instant claim, plaintiff has failed to offer sufficient proof to show the
conduct of defendant’s employee on July 16, 2008 amounted to the standard to prove
the intentional infliction of emotional distress. Furthermore, plaintiff has not proven the
acts of defendant subsequent to the July 16, 2008 incident rose to the level of being
extreme in degree or outrageous in character.
      {¶ 26} In order for plaintiff to prevail on his negligent training and supervision
claim, he must prove:        (1) the existence of an employment relationship, (2)
incompetence of the employee, (3) the employer’s actual or constructive knowledge of
the employee’s incompetence, (4) an act or omission by the employee that caused
damage to the plaintiff, and (5) negligent retention of the employee by the employer that
proximately caused the plaintiff’s injuries. Payton v. Receivables Outsourcing, Inc., 163
Ohio App. 3d 722, 2005-Ohio-4978. Based on the elements cited, the court finds any
injuries plaintiff received during the July 16, 2009 incident were not proximately caused
by defendant retaining Officer Paul Adkins. From the evidence presented, the trier of
fact finds the use of force against plaintiff was justified and not excessive, and the
remarks made by Adkins did not rise to the level of actionable intentional infliction of
emotional distress.
      {¶ 27} In the instant claim, plaintiff has asserted WCI employee, Officer Paul
Adkins, intentionally committed a wrongful act against him. To determine if defendant
should bear responsibility for an employee’s wrongful act, a finding must be made,
based on the facts presented, whether or not the injury causing act was manifestly
outside the course and scope of employment. Elliott v. Ohio Dept. of Rehab. & Corr.
(1994), 92 Ohio App. 3d 772, 775, 637 N.E. 2d 106; Thomas v. Ohio Dept. of Rehab. &
Corr. (1988), 48 Ohio App. 3d 86, 89, 548 N.E. 2d 991; and Peppers v. Ohio Dept. of
Rehab. & Corr. (1988), 50 Ohio App. 3d 87, 90, 553 N.E. 2d 1093. It is only where the
acts of state employees are motivated by actual malice or other such reasons giving
rise to punitive damages that their conduct may be outside the scope of their
employment. James H. v. Dept. of Mental Health and Mental Retardation (1980), 1
Ohio App. 3d 60, 61, 1 OBR 6, 439 N.E. 2d 437. The act must be so divergent that it
severs the employer-employee relationship. Elliott, at 775 citing Thomas, at 89, and
Peppers, at 90.
       {¶ 28} Malicious purpose encompasses exercising “malice,” which can be
defined as the willful and intentional design to do injury, or the intention to desire to
harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson
v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App. 3d 448, 453-454, 602 N.E. 2d
363, citing Teramano v. Teramano (1966), 6 Ohio St. 2d 117, 118, 35 O.O. 2d 144, 216
N.E. 2d 375; and Bush v. Kelly’s Inc. (1969), 18 Ohio St. 2d 89, 47 O.O. 2d 238, 247
N.E. 2d 745.
       {¶ 29} The Supreme Court of Ohio has established that an employer is liable for
the tortious conduct of its employee only if the conduct is committed within the scope of
employment and if the tort is intentional, the conduct giving rise to the tort must facilitate
or promote the business of which the employee was engaged. Byrd v. Faber (1991), 57
Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR. Co. v. Wetmore (1869), 19 Ohio
St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21 OBR 165, 486
N.E. 2d 249.
       {¶ 30} Further, an intentional and willful tort committed by an employee for his
own purposes constitutes a departure from the employment, so that the employer is not
responsible, Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d 303,
607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103 N.E.
2d 564.     The facts of this case, taken in the context of the situation as plaintiff
presented, would constitute an intentional tort committed by defendant’s employee
performed for his own personal purpose.          Following this rationale, plaintiff cannot
maintain a cause of action against defendant for the intentional malicious act of its
employee.
       {¶ 31} In regard to the use of force issue, the court concludes plaintiff has failed
to prove the force used against him on July 16, 2008 was either excessive or unjustified
under the facts presented. The Ohio Administrative Code sets forth 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:
       {¶ 32} “(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:
       {¶ 33} “(a) Self-defense from physical attack or threat of physical harm.
       {¶ 34} “(b) Defense of another from physical attack or threat of physical attack.
       {¶ 35} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders.
       {¶ 36} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance.
       {¶ 37} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶ 38} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶ 39} The court has recognized that “corrections officers have a privilege to use
force upon inmates under certain conditions. * * * However, such force must be used in
the performance of official duties and cannot exceed the amount of force which is
reasonably necessary under the circumstances. * * * 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, 593 N.E. 2d 482.
(Internal citations omitted.)
       {¶ 40} The degree of an injury might, in some cases, be an indicator of the
amount of force used or be useful in resolving a factual dispute, and thereby be relevant
to determining the excessiveness issue. See, e.g., Watley v. Ohio Dept. of Rehab. &
Corr., Ct. of Cl. No. 2004-09061, 2006-Ohio-1109. Evidence in the instant action shows
plaintiff may have suffered a nondisplaced nasal fracture from being taken to the
dayroom floor by Officers Adkins and Simmons. Conversely, plaintiff asserted he was
struck in the face by Officer Paul Adkins and Officer Stephen Adkins. Based on the
evidence presented, the court finds the force used by any WCI personnel on July 16,
2008 was justified under Ohio Adm. Code 5120-9-01(C)(1) and (3). Plaintiff maintained
he was assaulted. The credibility of witnesses is an issue primarily for the trier of fact.
Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 10 OBR 408, 461 N.E. 2d
1273. The trier of fact is free to believe all, part, or none of the statements of any
witnesses. See, State v. Long (1998), 127 Ohio App. 3d 328, 335, 713 N.E. 2d 1. The
trier of fact does not find the statements of plaintiff in regard to the events of July 16,
2008 to be particularly persuasive. The evidence points to the fact plaintiff assaulted
Officer Adkins and in turn had justified force used against him.
      {¶ 41} Plaintiff explained that at the time of the July 16, 2008 incident he was “on
[d]efendant’s Mental Health Case load” and was receiving medication “for the treatment
of his (severe) mental disorder, such as schizophrenia, schizoaffective disorder, and
bipolar disorders.” Plaintiff pointed out that due to his “Mental Health Case load” status
defendant pursuant to internal policy was required to provide him with a treatment plan
outlining a course of treatment.      According to plaintiff, he was not provided any
treatment plan, but instead after the events of July 16, 2008 “only received disciplinary
infractions as punishment and no intervention from (defendant’s) Medical or Mental
Health Services.” Furthermore, plaintiff asserted defendant violated its own guidelines
by transferring him from WCI to the Lebanon Correctional Institution (LeCI) and later to
the Southern Ohio Correctional Facility (SOCF), a maximum security institution. Plaintiff
also claimed he was wrongfully confined in a segregation unit at WCI before being sent
to LeCI. Plaintiff related he “was subjected to additional physical injury (transfer) to
LeCI and SOCF, a ‘maximum’ security prison in segregation for over 1 year.” Plaintiff
asserted that his transfers to both LeCI and SOCF were the result of a “false” conduct
report issued against him for “reportedly assaulted Officer Paul Adkins, in the head with
a plastic crock pot.” Plaintiff further asserted “[d]efendant in this matter made a high
mistake by sending plaintiff to a Maximum Security prison from the beginning on or after
July 16, 2008.”
      {¶ 42} The Supreme Court of Ohio has held that “[t]he language in R.C. 2743.02
that ‘the state’ shall ‘have its liability determined *** in accordance with the same rules
of law applicable to suits between private parties ***’ means that the state cannot be
sued for its legislative or judicial functions or the exercise of an executive or planning
function involving the making of a basic policy decision which is characterized by the
exercise of a high degree of official judgment or discretion.” Reynolds v. State (1984),
14 Ohio St. 3d 68, 70, 14 OBR 506, 471 N.E. 2d 776; see also Von Hoene v. State
(1985), 20 Ohio App. 3d 363, 364, 20 OBR 467, 486 N.E. 2d 868. Prison administrators
are provided “wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and discipline and
to maintain institution security.” Bell v. Wolfish (1979), 441 U.S. 520, 547, 99 S. Ct.
1861, 60 L. Ed. 2d 447.
       {¶ 43} Prison regulations, including those contained in the Ohio Administrative
Code, “are primarily designed to guide correctional officials in prison administration
rather than to confer rights on inmates.” Steve ex rel. Larkins v. Wilkinson, 79 Ohio St.
3d 477, 479, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v. Conner (1995), 515
U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 418. Additionally, this court has held
that “even if defendant had violated the Ohio Administrative code, no cause of action
would exist in this court. A breach of internal regulations in itself does not constitute
negligence. Williams v. Ohio Dept. of Rehab. and Corr. (1993), 67 Ohio Misc. 2d 1, 3,
643 N.E. 2d 1182.       Accordingly, to the extent that plaintiff alleges that defendant
somehow violated internal prison regulations and the Ohio Administrative Code, by not
providing a treatment plan or by transferring him to other institutions, or by assigning
him to a segregation unit, he fails to state a claim for relief. Furthermore, any claims by
plaintiff involving segregation assignments or institutional transfers are essentially
claims based upon the conditions of his confinement. Inmate complaints regarding the
conditions of confinement are treated as claims arising under 42 U.S.C. 1983. State ex
rel. Carter v. Schotten, 70 Ohio St. 3d 89, 91, 1994-Ohio-37, 637 N.E. 2d 306. Such
claims may not be brought against the state in the Court of Claims because the state is
not a “person” within the meaning of Section 1983.
       {¶ 44} In his response, plaintiff contended defendant’s medical personnel were
negligent in delaying treatment for his sarcoidosis condition, which he claimed was
aggravated by being maced on July 16, 2008. Plaintiff did not submit any medical
evidence to prove sarcoidal inflammation may be exacerbated from skin contact with
mace. Plaintiff recalled he became “violently ill” immediately after the July 16, 2008
incident and continued to experience illness after being transferred from WCI to a
segregation unit at LeCI. Plaintiff further recalled that despite “being violently ill” he was
not permitted to see defendant’s “Chief Medical doctor” Dr. J. McWeeney, “for over 43
days.”     Plaintiff asserted he was not permitted to receive medical attention for
complaints associated with his sarcoidosis until August 26, 2008 when he was
examined and treated by Dr. James M. O’Brien, a physician at the Pulmonary
Telemedicine Clinic at The Ohio State University Medical Center.            Plaintiff filed a
grievance (copy submitted) on August 20, 2008 noting he was permitted to see a
physician at LeCI, Dr. Huerta, on August 19, 2008 after he complained of coughing up
blood and experiencing chest pain. Plaintiff submitted copies of medical records from
The Ohio State University Medical Center and letters from Dr. James O’Brien
summarizing his medical condition.
         {¶ 45} Based on the allegations in plaintiff’s response, the court finds plaintiff
asserted a “medical claim” as that term is defined in R.C. 2305.113(E).
         {¶ 46} Civ.R. 10(D)(2) provides in pertinent part:
         {¶ 47} “(a) * * * [A] complaint that contains a medical claim, dental claim,
optometric claim, or chiropractic claim, as defined in section 2305.113 of the Revised
Code, shall include one or more affidavits of merit relative to each defendant named in
the complaint for whom expert testimony is necessary to establish liability. Affidavits of
merit shall be provided by an expert witness pursuant to Rules 601(D) and 702 of the
Ohio Rules of Evidence.”
         {¶ 48} Plaintiff did not file an affidavit of merit with his complaint. The Supreme
Court of Ohio has held that where plaintiff fails to file the affidavit required by Civ.R.
10(D)(2), the complaint fails to state a claim for relief.     Fletcher v. Univ. Hosp. of
Cleveland, 120 Ohio St. 3d 167, 2008-Ohio-5379. Consequently, any medical claim
plaintiff asserted is dismissed.
         {¶ 49} Assuming plaintiff has stated a proper claim for relief based on medical
negligence, plaintiff has failed to meet his burden of proof. In order to prevail on a claim
of medical malpractice or professional negligence, plaintiff must first prove:        1) the
standard of care recognized by the medical community; 2) the failure of defendant to
meet the requisite standard of care; and, 3) a direct causal-connection between the
medically negligent act and the injury sustained. Bruni v. Tatsumi (1976), 46 Ohio St.
2d 127, 75 O.O. 2d 184, 346 N.E. 2d 673. The appropriate standard of care must be
proven by expert testimony. Bruni at 130. That expert testimony must explain what a
medical professional of ordinary skill, care, and diligence in the same medical specialty
would do in similar circumstances. Bruni.
      {¶ 50} In Buerger v. Ohio Dept. of Rehab. & Corr. (1989), 64 Ohio App. 3d 394,
581 N.E. 2d 1114, the Tenth District Court of Appeals found the Bruni v. Tatsumi
standard applicable to a claim of medical malpractice brought by a prisoner. When a
plaintiff is alleging substandard medical treatment, expert medical opinion must be
provided to establish a prima facie case. Plaintiff may not simply rest upon allegations
of medical negligence as stated in his complaint. Saunders v. Cardiology Consultants,
Inc. (1990), 66 Ohio App. 3d 418, 420, 584 N.E. 2d 809; Hoffman v. Davidson (1987),
31 Ohio St. 3d 60, 61, 31 OBR 165, 508 N.E. 2d 958; Guth v. Huron Road Hospital
(1987), 43 Ohio App. 3d 83, 84, 539 N.E. 2d 670. In the present claim, plaintiff has
failed to produce expert medical opinion regarding causation of aggravated medical
conditions and therefore, his claim is denied.


                               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




ROBERT L. ATKINSON

      Plaintiff

      v.

DEPT. REHABILITATION AND CORRECTION

      Defendant

      Case No. 2009-01379-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION



      Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                ________________________________
                                                DANIEL R. BORCHERT
                                                Deputy Clerk

Entry cc:

Robert L. Atkinson, #545-578                    Gregory C. Trout, Chief Counsel
P.O. Box 45699                                  Department of Rehabilitation
Lucasville, Ohio 45699                          and Correction
                                                770 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
Filed 3/12/10
Sent to S.C. reporter 7/1/10
