[Cite as Robinson v. Dept. of Rehab. & Corr., 2011-Ohio-1429.]

                                                        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




DALE G. ROBINSON

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2010-02171

Judge Alan C. Travis

DECISION




        {¶ 1} On January 3, 2011, 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 and Civ.R. 56.
        {¶ 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. (1977), 50 Ohio St.2d 317.
       {¶ 4} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Warren Correctional Institution (WCI) pursuant to R.C. 5120.16.
Plaintiff states in his complaint that on April 12, 2009, he was at the “pill call” window to
receive his medication when Corrections Officer (CO) Barnett placed him in handcuffs
“for no reason” and escorted him to a segregation unit where Barnett and CO Duncan
then “beat” him. Plaintiff claims that defendant’s employees were negligent both in
using excessive force against him and in removing him from the pill call window before
he received his medication. Plaintiff also seeks a “declaratory judgment from this court
to forbid defendant’s agents” from engaging in such conduct.
       {¶ 5} The Ohio Administrative Code sets forth the 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:
       {¶ 6} “(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:
       {¶ 7} “(a) Self-defense from physical attack or threat of physical harm;
       {¶ 8} “(b) Defense of another from physical attack or threat of physical attack;
       {¶ 9} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders;
       {¶ 10} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance;
       {¶ 11} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶ 12} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶ 13} 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.         (Internal citations
omitted.)
       {¶ 14} In support of its motion, defendant filed the affidavits of Barnett and
Duncan. In his affidavit, Barnett states, in part:
       {¶ 15} “3. On April 12, 2009, I escorted two segregation inmates to the pill call. I
gave a direct order to [plaintiff] to move aside, so that the two inmates I was escorting
could receive their medication and be returned to segregation.           After [plaintiff] just
stared back at me, I gave a second direct order to [plaintiff] to step back from the pill
window. This time, [plaintiff] reluctantly stepped back, but then walked back to the pill
window while the other inmates were trying to get their medications. Then for the third
time, I gave a direct order to [plaintiff] to move away from the window. Finally, [plaintiff]
stepped back, stared [at] me, and when I began to leave with the two inmates, [plaintiff]
said to me, ‘Who the fuck are you?’ I then ordered [plaintiff] to place his arms behind
his back to be handcuffed. Then, [plaintiff] turned around face to face with me. In
response, I placed [plaintiff] against the wall and attempted to handcuff him. I needed to
apply a minimal amount of force to control the situation as [plaintiff] was acting defiant
and uncooperative throughout the entire incident.            After [plaintiff] was placed in
handcuffs, I escorted him to segregation.
       {¶ 16} “4. Neither I nor CO Duncan assaulted [plaintiff], and I am unaware of any
assault taking place while [plaintiff] was in segregation.
       {¶ 17} “5. During the use of force incident, WCI and [defendant’s] policy was
properly followed by the prison staff.”
       {¶ 18} Attached to Barnett’s affidavit is an authenticated copy of a conduct report
that he wrote as a result of the incident.
       {¶ 19} Duncan’s affidavit states, in part:
       {¶ 20} “3. On April 12, 2009, neither I nor CO Barnett assaulted [plaintiff], and I
am unaware of any assault taking place while [plaintiff] was in segregation.”
       {¶ 21} As stated above, plaintiff did not file a response to defendant’s motion, nor
did he provide the court with any affidavit or other permissible evidence to support his
allegations.
       {¶ 22} Civ.R. 56(E) states, in part, as follows:
       {¶ 23} “When 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 defendant’s employees did not use excessive
force in subduing or controlling plaintiff after he refused to comply with CO Barnett’s
direct orders.    Further, inasmuch as plaintiff was in the process of receiving his
medication at the pill call window when the incident occurred, it is reasonable to
conclude only that his own defiant and argumentative conduct, which necessitated his
removal to the segregation unit, was the sole proximate cause of his alleged failure to
receive his medication. Therefore, the court finds that there are no genuine issues of
material fact and that defendant is entitled to judgment as a matter of law.
       {¶ 25} Accordingly, defendant’s motion for summary judgment shall be granted
and judgment shall be entered in favor of defendant.




                                                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




DALE G. ROBINSON

      Plaintiff

      v.

DEPARTMENT OF REHABILITATION AND CORRECTION
        Defendant
        Case No. 2010-02171

Judge Alan C. Travis

JUDGMENT ENTRY




          A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.            For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. 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.



                                            _____________________________________
                                            ALAN C. TRAVIS
                                            Judge

cc:


Daniel R. Forsythe                              Dale G. Robinson
Assistant Attorney General                      117 South Woodward Avenue
150 East Gay Street, 18th Floor                 Dayton, Ohio 45417
Columbus, Ohio 43215-3130

RCV/cmd
Filed March 10, 2011
To S.C. reporter March 22, 2011
