[Cite as Israfil v. Warren Correctional Inst., 2011-Ohio-3440.]

                                        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




MUMIN ISRAFIL

        Plaintiff

        v.

WARREN CORRECTIONAL INSTITUTION

        Defendant

        Case No. 2010-05056-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Mumin Israfil, an inmate incarcerated at defendant, Warren
Correctional Institution (WCI), filed this action alleging he suffered personal injury as a
proximate cause of negligence on the part of WCI staff when he was escorted from a
segregation unit to a court hearing held at WCI premises on March 9, 2010. Plaintiff
related excessive force was used by WCI personnel in escorting him from a WCI
segregation unit to a hearing room and back to segregation thereby aggravating
“preexisting injuries causing serious physical harm of acute pain and substantial
suffering in plaintiff’s back, neck, shoulder, legs, anus, groin.”        Plaintiff requested
damages in the amount of $2,500.00, representing claims for pain and suffering and
“diminished mental capacities” allegedly caused by the acts of WCI staff in escorting
him from one area of WCI to another. Plaintiff was not required to pay a filing fee to
prosecute this action.
        {¶ 2} Defendant denied any liability in this matter and specifically denied WCI
staff used excessive force on plaintiff when escorting him to and from a hearing held on
WCI premises. Defendant explained plaintiff’s injury claim “on March 9, 2010 is based
solely on fact that WCI would not provide Plaintiff with a wheelchair to travel to and from
the hearing” held at WCI. Defendant acknowledged “there was no unnecessary force
used” by WCI personnel when plaintiff was escorted to and from the March 9, 2010
hearing due to the fact he refused a direct order to walk from his housing unit to the
hearing site and back again. Defendant maintained the physical actions used by WCI
staff on plaintiff “to gain compliance for an inmate (plaintiff) refusing a direct order to
walk when no medical evidence exists proving that he cannot.” Defendant advised
plaintiff has claimed he cannot “walk or stand and has repeatedly requested a
wheelchair and shower chair.” Defendant further advised WCI medical personnel “were
unable to find any medical evidence to support (plaintiff’s) claims of pain and loss of
function (and) [a]n independent medical exam by an Ohio State University Medical
Center Neurosurgeon (reported submitted) found no basis for Plaintiff’s complaint
without further testing.” Defendant argued plaintiff has not offered any evidence to
establish excessive force if any was used against him on March 9, 2010 or that any
physical actions used aggravated any preexisting injuries.
       {¶ 3} Defendant provided a copy of a referral letter from The Ohio State
University Medical Center Clinical Professor, Carole A. Miller, M.D., who referenced an
examination she conducted on plaintiff on July 29, 2010.             Dr. Miller noted past
“radiologic testing” done on plaintiff “does indicate moderate cervical spondylosis.”
Additionally, Dr. Miller noted plaintiff has “underlying cervical and lumbar degenerative
disc disease,” which apparently was confirmed by scans done on April 22, 2009 and
June 9, 2009. Plaintiff has not undergone any radiologic scan after the March 9, 2010
incident forming the basis of this claim. Dr. Miller wrote plaintiff’s disc disease “can lead
to and cause chronic pain.”
       {¶ 4} Defendant also provided a copy of a “Summary of Clinical Interactions”
from defendant’s Medical Director, John R. DesMarais, chronicling plaintiff’s medical
history while under incarceration. Dr. DesMarais recorded the initial report of plaintiff
having any back problem was in November 2007 when he fell out of his bunk “claimed
he hit his head and low back and was diagnosed as a lumber strain;” although an earlier
indication was during 2005 when he complained of neck pain, “it was presumed that he
may have an early possible disc problem.” According to Dr. DesMarais, no significant
medical problem was presented by plaintiff until August 6, 2008 when “he was struck on
the right calf and thigh by a motorized trash golf cart traveling at a low rate of speed”
and complained of pain in his lower right leg, back, and neck.              Dr. DesMarais
characterized the August 6, 2008 incident as “a sentinel event.” Dr. DesMarais reported
plaintiff received medication for his pain complaints, was examined, and “underwent a
full investigation including cervical spine, low-back x-rays, right knee x-rays on (August
7, 2008), all of which were negative.” In his summary, Dr. DesMarais advised “[f]rom
August 11, 2008 to the present (plaintiff) has been seen twenty times for repeated
evaluations of complaints of back pain, right-side numbness, increase in back and neck
discomfort, and spasms in his neck and lower back; and has frequently complained that
he was been unable to walk.”
       {¶ 5} The following information and opinion provided by Dr. DesMarais
regarding plaintiff’s condition in relationship to testing conducted is included in its
entirety:
       {¶ 6} “CT of the lumbar spine performed by OSU on May 21, 2009, ordered by
the institutional physician for complaints of pain out of proportion to exam to make sure
she wasn’t missing anything, showed only mild disc bulges of L3 and L4, L4 and L5
which should not cause any significant symptoms and do not cause ambulatory
impairment. Of note there was no significant narrowing of the spinal canal noted in his
low back which if present could have been responsible for his symptoms.
       {¶ 7} “He has also undergone an MRI of his neck on April 22nd 2009 which was
ordered also by the institutional physician to ensure that there (are) no significant issue
in his neck causing the alleged weakness in his legs. The MRI did show relatively
severe disk disease in his neck at the level of cervical vertebrae 5 & 6 on both sides.
However, he does not complain of symptoms referable to the upper extremity, any
tingling or numbness or weakness of his arms, which this type of lesion would cause.
Most importantly however he does not have any evidence of narrowing of the spinal
column in the neck (which also might have caused his symptoms if it were present).
Additionally, he has had x-rays of his thoracic spine, his chest, his right knee, his lumbar
sacral spine, and his cervical spine, all of which either negative, showed mild scoliosis
(clinically insignificant in his age group) or mild degenerative disc disease (also, again a
common finding seen on nearly everyone after age 35 and clinically insignificant in his
case.)”
       {¶ 8} Based on his evaluations, Dr. DesMarais expressed the following written
opinion:
       {¶ 9} “In summary, Mr. Israfil has received an extraordinary amount of care, had
significant and full investigations and consultations for his complaints which have
yielded only insignificant to minor degrees of pathology, none of which explain his
alleged symptoms. He continues to intermittently walk yet continues to insist that he
can’t and we can find no medical basis necessitating the use of a wheelchair.”
       {¶ 10} Plaintiff filed a response insisting that the physical actions used upon him
by WCI staff on March 9, 2010 constituted excessive force and the actions utilized “did
cause (him) to suffer serious physical injury.”              Plaintiff maintained he informed
defendant’s personnel prior to the date of his hearing of “his inability to walk distance to
court room, and requested wheelchair aid,” which was denied. Plaintiff acknowledged
he was given a direct order to walk from his housing unit to the hearing site room on
March 9, 2010.       Plaintiff related he walked approximately “10 ft outside from the
segregation building unable to continue in (debilitating) pain” and informed WCI staff “he
could walk no further.” According to plaintiff in response to this information, WCI staff
then used force to escort him to the hearing site by “holding plaintiff up by his pants
waistband and arm pits.”         Plaintiff advised that due to the methods employed by
defendant’s personnel his “weight was distributed to his crotch and anus . . . causing
him serious physical harm, while being taken to the courtroom.” Plaintiff further advised
that when the March 9, 2010 hearing concluded he was “dragged by his arm pits back
to his cell in segregation, causing him injury and harm to preexisting injuries.”
       {¶ 11} Plaintiff attached a copy of an “Informal Complaint Resolution” (ICR) he
submitted on March 11, 2010 in connection with the acts of WCI personnel in escorting
him from his housing unit to the hearing site and back again on March 9, 2010. In this
ICR, plaintiff wrote “I was semi-carried to a trial in the training room (and) [a]fter trial I
was again semi-carried back to my cell.” Defendant’s employee, in responding to this
ICR wrote the definition of force under internal regulations1 constitutes “the exertion or
application of a physical compulsion or constraint.” Also contained in the ICR response
was the conclusion “[y]ou (plaintiff) being assisted to help keep your balance and keep
you from falling is not force.” In his ICR plaintiff maintained the actions used by WCI

       1
         Ohio Adm. Code 5120-9-01(B)(1) defines force. This Ohio Administrative Code section states:
       “(1) ‘Force’ means the exertion or application of a physical compulsion or constraint.”
staff in physically escorting him on March 9, 2010 constituted a use of force under
internal regulations as well as an “unreported use of force incident” under internal
regulations. The court concludes the physical actions of defendant in escorting plaintiff
to the hearing site and back again did indeed involve “force” as defined by Ohio Adm.
Code 5120-9-01(B)(1).           However, the court finds the force used on plaintiff after
considering all evidence available did not rise to the level of a “reportable use of force”
as addressed in Ohio Adm. Code 5120-9-01(B)(1)(b).2 Additionally, the court concludes
the force used on plaintiff on March 9, 2010 in connection with his attending a hearing at
WCI did not involve “excessive force” as defined by Ohio Adm. Code. 5120-9-1(B)(3).3
        {¶ 12} Plaintiff contended defendant’s acts in physically escorting him to and
from a hearing on March 9, 2010 aggravated his existing chronic medical conditions
causing him great physical pain. Plaintiff further contended the force used upon him by
WCI personnel amounted to actionable negligence.                           Plaintiff argued defendant
breached a duty of care owed to him to protect him from the unreasonable risk of harm
and the breach of this duty resulted “in the injury, loss and damage described in (his)
complaint.”
        {¶ 13} In order for plaintiff to prevail upon his claim of negligence, he must prove,
by a preponderance of the evidence, that defendant owed him a duty, that it breached
that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
Additionally, Ohio law imposes a duty of reasonable care upon the state to provide for
its prisoners’ health, care and well-being. Clements v. Heston (1985), 20 Ohio App. 3d
132, 136, 20 OBR 166, 485 N.E. 2d 287. In the instant claim, plaintiff has failed to
prove, by a preponderance of the evidence, that the acts of WCI personnel on March 9,
2010 constituted actionable negligence or that such acts resulted in any aggravation of
an existing medical condition or caused any additional pain than he ordinarily claims to

        2
           Ohio Adm. Code 5120-9-01(B)(1)(b) provides:
         “(b) The use of one’s hands with minimal force such as may be necessary or incidental to the
application of restraints, or to restrain, guide, support, or direct, etc., an inmate during procedures such as
the transport, escort or movement of an inmate shall not in itself be considered a reportable use of force.”
         3
           Ohio Adm. Code 5120-9-1(B)(3) states:
         “(3) ‘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
suffer from.
        {¶ 14} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court finds plaintiff’s allegations
not credible in regard to exacerbation of existing physical ailments and increased pain.
Dr. Miller noted in the submitted referral letter plaintiff “weighs approximately 60 kg (132
1/4 lbs) and was approximately 172 cm (5’7 3/4") tall.” Considering plaintiff’s height
and weight, the trier of fact is not convinced the described acts of WCI personnel in
physically escorting plaintiff to and from a court hearing could have caused the
damages claimed.         The existing evidence does not support any converse finding.
Plaintiff’s 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




MUMIN ISRAFIL

       Plaintiff

       v.

WARREN CORRECTIONAL INSTITUTION

       Defendant

necessary under all the circumstances surrounding the incident.”
         Case No. 2010-05056-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:

Mumin Israfil, #289-920                           Gregory C. Trout, Chief Counsel
P.O. Box 120                                      Department of Rehabilitation
Lebanon, Ohio 45036                               and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
3/11
Filed 3/31/11
Sent to S.C. reporter 6/30/11
