[Cite as White v. Dept. of Rehab. & Corr., 2017-Ohio-9397.]




CHRISTIAN WHITE                                        Case No. 2016-00452

       Plaintiff                                       Magistrate Gary Peterson

       v.                                              DECISION OF THE MAGISTRATE

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION

       Defendant



        {¶1} Plaintiff, an inmate in the custody and control of defendant, brought this
action alleging that defendant’s corrections officers used excessive force on him
causing injury.      The issues of liability and damages were bifurcated and the case
proceeded to trial on the issue of liability.1
        {¶2} At trial, plaintiff testified that on the day of the incident, he was assigned to
the B6 unit. According to plaintiff, he was at a table playing cards with other inmates
when corrections officer Brooke Hassen approached the table. Plaintiff related that
Hassen questioned the inmates at the table regarding who said a derogatory remark but
that no one at the table had made any remark. Plaintiff testified that when Hassen
returned 10 minutes later, the group of inmates “brushed her off” and questioned why
she was bothering them. Plaintiff reported that Hassen subsequently left.
        {¶3} Plaintiff testified that several hours later corrections officer Dan O’Flaherty
escorted him to captain Lloyd Brownlee’s office. According to plaintiff, after arriving at
the captain’s office, Brownlee asked Hassen whether plaintiff was the inmate who had
“disrespected” her, but Hassen was “indecisive” and “unsure.” Plaintiff testified that
Brownlee subsequently ordered him to “get on the wall,” which means to face the wall,
place his hands above his head on the wall, and prepare to be handcuffed, whereupon

        1Defendant’s   August 30, 2017 motion is DENIED as moot.
Case No. 2016-00452                          -2-                                DECISION


plaintiff asked why he was going to segregation even though he did not do anything
wrong. Plaintiff acknowledged that Brownlee again ordered him to face the wall at
which point he complied. Plaintiff reports that O’Flaherty grabbed his hands and cuffed
him after which plaintiff turned his head around, looked over his shoulder, and
complained that he was being sent to segregation despite Hassen being unable to
identify plaintiff as the inmate who had disrespected her. Plaintiff testified that Brownlee
thereafter jumped out of his chair and pushed his head back up against the wall.
       {¶4} Plaintiff testified that he suffered a cut above his eye and that he was
subsequently escorted to medical where he received treatment.              Plaintiff added,
however, that he continued to be upset and that he requested that the cameras in the
area of where the event occurred be reviewed. Plaintiff further added that while he was
in segregation, Brownlee told him that he would be a witness to the events and that he
would say that Hassen was “indecisive” regarding the identification of the inmate who
made the remark.
       {¶5} Brooke Hassen testified that she has been a corrections officer at Grafton
Correctional Institution for two years and that she held that same position on
January 18, 2016, the date of the events giving rise to plaintiff’s claim. Hassen testified
that on that date she discovered that a group of inmates, including plaintiff, were at a
table gambling and trading commissary. Hassen reported that she approached the
table and asked the inmates what they were doing. According to Hassen, plaintiff told
her to mind her own business and then added that she was mad because nobody was
paying attention to her. Hassen reported that plaintiff also told her to “go back to your
desk, bitch.” Hassen stated that she thereafter went to Brownlee’s office to review
camera footage and verify plaintiff’s identity.
       {¶6} Hassen testified that O’Flaherty escorted plaintiff to Brownlee’s office.
According to Hassen, after plaintiff arrived, she told Brownlee that plaintiff had
disrespected her.    Hassen testified that Brownlee ordered plaintiff to prepare to be
Case No. 2016-00452                          -3-                                 DECISION


handcuffed and that plaintiff, who did not immediately comply, was very upset. Hassen
stated that plaintiff eventually complied, after several direct orders, and placed his
hands on the wall above his head with his back toward the group. Hassen testified that
plaintiff subsequently attempted to push himself off the wall and turn to face the group.
Hassen asserted that Brownlee placed his hand on plaintiff’s arm and pushed him back
to the wall. Hassen reports that plaintiff thereafter complied with their orders. Hassen
completed an incident report regarding the event.
       {¶7} Dan O’Flaherty testified that he has been a corrections officer for four years.
O’Flaherty stated that he was ordered by Brownlee to escort plaintiff to his office and
that plaintiff seemed upset while he was being escorted.          According to O’Flaherty,
Brownlee attempted to hear plaintiff’s side of the story regarding the incident described
above, but plaintiff was argumentative. As a result, Brownlee determined that plaintiff
needed to be placed in segregation, at which point, Brownlee gave plaintiff a direct
order to get on the wall.     O’Flaherty testified that after three direct orders, plaintiff
complied. O’Flaherty asserted that while plaintiff was facing the wall and while he was
attempting to place handcuffs on him, plaintiff attempted to push himself off the wall and
spin around. O’Flaherty added that plaintiff was not handcuffed at that time and that he
only controlled one hand.     O’Flaherty testified that Brownlee assisted in controlling
plaintiff by using reactive force and taking control of plaintiff’s other hand; plaintiff was
subsequently handcuffed. O’Flaherty stated that thereafter plaintiff was bleeding from
the forehead and, as a result, escorted to medical.         O’Flaherty completed both an
incident report and a conduct report regarding the event.
       {¶8} Lloyd Brownlee testified that he has worked as a correctional captain at
Grafton Correctional Institution for the previous 20 years. Brownlee recalled that on
January 18, 2016, he directed O’Flaherty to escort plaintiff to his office due to a
derogatory comment plaintiff made to Hassen. Brownlee testified that when plaintiff
arrived, he confronted plaintiff about calling Hassen a bitch. Brownlee reported that
Case No. 2016-00452                        -4-                                  DECISION


plaintiff was not loud or violent but continued to argue.     Brownlee testified that he
ordered plaintiff to get on the wall.    According to Brownlee, while O’Flaherty was
applying the handcuffs, plaintiff attempted to push himself away from the wall.
Brownlee testified that he got up out of his chair and pushed plaintiff back to the wall.
Brownlee added that he noticed a cut above plaintiff’s eye after the incident. Brownlee
denied touching plaintiff’s head and did not know how plaintiff cut his head.
       {¶9} Corrections officer Bernard Johnson testified that he witnessed the
exchange between plaintiff and Hassen that occurred on January 18, 2016. According
to Johnson, plaintiff was playing cards when Hassen went to the table because she
thought someone made a derogatory comment to her. Johnson asserted that plaintiff
told her that nobody said anything to her.       Johnson reported that Hassen left and
thereafter returned and again inquired about the comment at which point plaintiff flung
his identification across the table and said that she was simply mad because no one
was paying attention to her. Johnson testified that plaintiff was escorted to Brownlee’s
office 10 minutes later.
       {¶10} “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
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.
       {¶11} In addition to stating a claim for negligence, allegations of unnecessary or
excessive force being used against an inmate may state a claim for battery. Brown v.
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13. “To
prove battery, the plaintiff must prove that the intentional contact by the defendant was
harmful or offensive.” Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
Case No. 2016-00452                           -5-                                DECISION


12AP-12, 2012-Ohio-3382, ¶ 11.            “A defendant may defeat a battery claim by
establishing a privilege or justification defense.” Brown at ¶ 13, citing Love v. Port
Clinton, 37 Ohio St.3d 98, 99 (1988).
         {¶12} “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.
         {¶13} Ohio Adm.Code 5120-9-01 provides, in pertinent part:
         “(C) Guidelines regarding the use of force. * * *
         “* * *
         “(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:
         “(a) Self-defense from physical attack or threat of physical harm;
         “(b) Defense of another from physical attack or threat of physical attack;
         “(c) When necessary to control or subdue an inmate who refuses to obey prison
rules, regulations or orders;
         “(d) When necessary to stop an inmate from destroying property or engaging in a
riot or other disturbance;
         “(e) Prevention of an escape or apprehension of an escapee; or
         “(f) Controlling or subduing an inmate in order to stop or prevent self-inflicted
harm.”
Case No. 2016-00452                          -6-                                   DECISION


       {¶14} “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.”
       {¶15} Upon review of the evidence, the magistrate finds that plaintiff failed to
prove his claim by a preponderance of the evidence. The magistrate finds that on
January 18, 2016, plaintiff was escorted by O’Flaherty to Brownlee’s office. Hassen
was also present at the office. After plaintiff’s arrival, Brownlee questioned plaintiff
regarding an event that allegedly took place earlier that day between Hassen and
plaintiff. At some point, Brownlee ordered plaintiff to face the wall with his hands above
his head. There is no dispute that plaintiff at least initially failed to obey the direct order
given by Brownlee.      Indeed, plaintiff testified that he initially questioned Brownlee.
Nevertheless, plaintiff thereafter complied with the order and raised his hands above his
head with his back to the group as he prepared to be handcuffed.
       {¶16} The magistrate further finds that as O’Flaherty was in the process of
placing handcuffs on plaintiff, plaintiff turned his head looking over his shoulder back
toward the group and verbally protested. At that point, Brownlee used reactionary force
to subdue plaintiff to obtain his compliance by taking control of plaintiff’s hand and
pressing plaintiff against the wall. Plaintiff’s head struck the wall causing a cut on his
forehead. O’Flaherty remained in control of plaintiff’s other hand.             Plaintiff was
handcuffed without further incident.
Case No. 2016-00452                          -7-                                  DECISION


       {¶17} The magistrate finds that the force used by Brownlee was reasonable
under the circumstances. As noted above, plaintiff initially failed to obey a direct order
to face the wall with his hands above his head. While he was being handcuffed, plaintiff
turned his head, looked back over his shoulder, and protested his treatment.             The
magistrate notes that O’Flaherty, Brownlee, and Hassen describe plaintiff as attempting
to push away from or off the wall.       While the magistrate does not believe plaintiff
intended to threaten Brownlee, O’Flaherty, and Hassen, Brownlee could have
reasonably assumed, given that plaintiff turned his head and protested his treatment,
that plaintiff may push away from the wall, pose a threat to those in the room, or
otherwise resist handcuffs being placed on him. Force is justified when necessary to
control or subdue an inmate to obtain compliance with direct orders—in this case to
place plaintiff’s hands on the wall to be handcuffed. The force used by Brownlee was
reasonable, necessary, and minimal given the circumstances. In short, Brownlee was
justified to use force due to plaintiff’s failure to comply with direct orders and plaintiff’s
failure to remain facing the wall. Accordingly, judgment is recommended in favor of
defendant.
       {¶18} 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
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).


                                                   GARY PETERSON
                                                   Magistrate
Case No. 2016-00452                -8-                                DECISION


cc:
Christian White, #A301-910          Stacy L. Hannan
Grafton Correctional Institution    Assistant Attorney General
2500 South Avon-Belden Road         150 East Gay Street, 18th Floor
Grafton, Ohio 44044                 Columbus, Ohio 43215-3130

Filed December 4, 2017
Sent to S.C. Reporter 1/5/18
