[Cite as Nix v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-2902.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Anthony Nix,                                         :

                Plaintiff-Appellant,                 :
                                                                      No. 13AP-547
v.                                                   :            (Ct. of Cl. No. 2011-11939)

Ohio Department of Rehabilitation &                  :           (REGULAR CALENDAR)
Correction,
                                                     :
                Defendant-Appellee.
                                                     :




                                         D E C I S I O N

                                      Rendered on June 30, 2014


                Swope and Swope – Attorneys at Law, and Richard F.
                Swope, for appellant.

                Michael DeWine, Attorney General, and James P. Dinsmore,
                for appellee.

                             APPEAL from the Court of Claims of Ohio.

BROWN, J.
        {¶ 1} This is an appeal by plaintiff-appellant, Anthony Nix, from a judgment of
the Court of Claims of Ohio overruling his objections to a magistrate's decision and
rendering judgment in favor of defendant-appellee, Ohio Department of Rehabilitation &
Correction.
        {¶ 2} At all times relevant, appellant was an inmate at the Mansfield Correctional
Institution. On October 11, 2011, appellant filed a complaint alleging that two corrections
officers at the facility assaulted him, causing injuries, extreme pain and suffering, and
emotional distress.
No. 13AP-547                                                                               2

       {¶ 3} The Court of Claims assigned the matter to a magistrate who conducted a
trial October 30, 2012. Appellant testified on his own behalf and gave the following
account of the events at issue. In July 2011, appellant learned that another inmate, John
Hodge, had stolen a "Pacman" video game belonging to appellant's cellmate. (Tr. 22.) On
two separate occasions, appellant asked Hodge about the missing game.
       {¶ 4} On July 9, 2011, appellant was near the "4-D" area of the facility when a
corrections officer ("CO"), Joshua Garrett, pulled up in a cart and asked appellant:
"[W]hat you got on your waist? Look like you got something on your waist." (Tr. 23.)
Appellant denied having anything on his waist.
       {¶ 5} CO Garrett told appellant to lift up his shirt. Appellant complied, and
showed the officer he did not have anything on his waist. CO Garrett "grabbed my arm
and told me to cuff up." The CO grabbed appellant's arm and "twisted it around." (Tr.
24.) At this time, another CO, Jerry Campbell, arrived in a cart and "maced" appellant in
the face. (Tr. 24.) The officers "kept saying, cuff up, cuff up." (Tr. 24.) Appellant put his
arms behind his back and lifted his arms "so they can cuff me." (Tr. 24.) CO Garrett then
said, "oh, so you refusing to cuff up?" (Tr. 24.) Appellant responded, "cuff me up." (Tr.
24.) CO Garrett then "slammed me to the ground." (Tr. 25.) The officers were "acting
like I was refusing to give the other one the arm, and they started macing me. Campbell
started macing me in the face. Every time I'd turn my face, he just maced me." (Tr. 25.)
COs Garrett and Campbell cuffed appellant and walked him to the infirmary. Once inside
the infirmary, they "threw me into the water fountain, told me to get up." (Tr. 26.)
       {¶ 6} Two other COs, "CO Ransom" and "CO Windom," as well as several nurses,
were inside the infirmary at the time. (Tr. 29.) There was a desk in the infirmary, and
"CO Windom and Ransom and two nurses were behind the desk." (Tr. 29.) Another
inmate, Paul Bidwell, was also inside the infirmary.
       {¶ 7} COs Garrett and Campbell then took appellant to the back of the infirmary
and threw him on the ground. Appellant gave the following testimony regarding the
ensuing events:
               They just started – that's when they started the assault. They
               started beating me, choking me. Campbell put a rubber glove
               on his hand and soaked the glove in mace and stuck it in my
               mouth. He kept macing the glove and he was rubbing it in my
               eyes and my nose. I was trying to get away. I was on the
No. 13AP-547                                                                             3

               ground squirming. Then he held me down and Garrett pulled
               my pants down and grabbed my penis and maced me in the
               penis.

(Tr. 27.)

       {¶ 8} The COs told appellant "that's what I get for trying to extort one of their
porters." (Tr. 27.) CO Campbell "kept making me * * * say Pacman. While he was macing
me, he kept making me scream Pacman." (Tr. 27-28.)
       {¶ 9} Shortly after the incident, appellant filed institutional complaints and
several investigators contacted him regarding the incident. Appellant declined to talk
with the investigators at the time because his family lived in the area and he did not want
to risk being transferred from the Mansfield facility. (Tr. 32.) Appellant later spoke with
two investigators, Trevor Clark and Angela Hunsinger, and explained to them what
happened.
       {¶ 10} In July 2011, John Anthony Hodge was an inmate at the Mansfield
Correctional Institution. Hodge, who worked as a porter at the facility, testified that if
anyone gave CO Campbell "problems, I'd take their property." (Tr. 43-44.) Hodge
acknowledged stealing a Pacman video game. When appellant later confronted Hodge
about the video game, Hodge denied taking it. Hodge then spoke with CO Clevenger,
telling the CO that "this guy was bugging me about a video game system." (Tr. 46.) COs
Garrett and Campbell then "pulled up on the golf cart, and Clevenger told them what I
had told Clevenger." (Tr. 46-47.) COs Garrett and Campbell then "started coming up
with a plan what they were going to do." (Tr. 47.) The officers planned to search
appellant and make him turn around as if "he's posing a threat," and then "they were
going to take him to the ground, mace him, take him back to the hole." (Tr. 47.)
       {¶ 11} On July 9, 2011, as appellant was leaving the food hall, Hodge observed CO
Campbell approach appellant and spray mace in his face. The CO took appellant to the
ground, and several "[o]ther COs rushed over there." (Tr. 49.) The COs cuffed appellant
and took him to the infirmary. CO Campbell later told Hodge: "[W]e took care of this for
you, * * * he was crying like a little bitch, we almost broke his arm, we made him say
Pacman." (Tr. 50.)
No. 13AP-547                                                                              4

       {¶ 12} Clark, staff counsel for appellee, investigated the incident. As part of his
investigation, Clark interviewed appellant, who was initially hesitant to speak because he
did not want to leave the Mansfield facility. According to Clark, appellant did not have
any contraband at the time the COs confronted him, nor did they "take him to the hole for
resisting." (Tr. 55.)    Clark testified that appellant was honest regarding "the major
details" of the incident. (Tr. 56.)
       {¶ 13} During his investigation, Clark spoke with CO Ransom, who was on duty in
the infirmary on the date of the incident.       CO Ransom told Clark that "his only
recollection was opening the door, and then from that point, he claims that he stayed out
in the front area of the infirmary." (Tr. 59.)
       {¶ 14} Clark interviewed CO Campbell as part of the investigation, and Clark
"confronted him with the fact that 28 grams of mace was used from his canister." (Tr.
62.) CO Campbell "didn't really have a comment on that." (Tr. 63.) Clark interviewed CO
Campbell a second time and the CO "broke down, crying, and indicated to me that he
knew that they had screwed up." (Tr. 63.) CO Campbell "structured his explanation of
the events to where his involvement was more restraining [appellant] while Garrett did
the dirty work." (Tr. 63.) CO Campbell believed that "Garrett did, in fact, pull down
[appellant's] pants and may have maced him in the anus and his genitalia." (Tr. 64.)
       {¶ 15} Clark also spoke with CO Clevenger, who initially "said he had no
knowledge of the incident whatsoever." (Tr. 68.) Later, Clevenger indicated he "saw
Campbell standing up over top of [appellant], and that Garrett was holding him down on
the ground, attempting to restrain him, but that he saw nothing unusual about the
situation and turned and walked the other way." (Tr. 68.) CO Clevenger told Clark he did
not smell mace.
       {¶ 16} Clark interviewed a nurse, identified in Clark's report as "Nurse Moore,"
who was in a lunch break room in the infirmary at the time the officers arrived with
appellant. Moore "claims that she came out to observe the commotion, and that Nurse
Edgell confronted her and said, mind your own business. And then she went back in the
break room and that was the end of her experience with it."           (Tr. 73-74.)     Clark
interviewed "Nurse Edgell," who denied telling Moore to mind her own business. Clark
interviewed a third nurse who did not recall anything about the incident.
No. 13AP-547                                                                             5

       {¶ 17} Clark also interviewed inmate Bidwell, who was in one of the infirmary cells
at the time of the incident. According to Clark, Bidwell related that he heard "shouts and
screams" from appellant and that he also heard COs "shouting Pacman at him." (Tr. 76.)
       {¶ 18} Hunsinger, an institutional investigator at the Mansfield Correctional
Institution, testified that there were no security cameras in the infirmary on the date of
the incident. Following the events, an inmate "blood spill crew" reported to the infirmary,
and a report indicated the crew cleaned up some blood at the front of a holding cell.
       {¶ 19} The magistrate issued a decision January 8, 2013, finding that COs
Campbell and Garrett were not entitled to civil immunity based upon a determination that
the COs acted with malicious purpose.       With respect to the issue of whether other
employees in the infirmary at the time of the incident were negligent, the magistrate
found that appellant "failed to establish that those employees breached their duty to
'provide for [plaintiff's] health, care, and well-being.' " The magistrate therefore
recommended that the court render judgment in favor of appellee. On February 6, 2013,
appellant filed objections to the magistrate's decision. By judgment entry filed May 21,
2013, the trial court overruled appellant's objections and rendered judgment in favor of
appellee.
       {¶ 20} On appeal, appellant sets forth the following four assignments of error for
this court's review:
               ASSIGNMENT OF ERROR NO. 1: THE MAGISTRATE AND
               THE COURT ERRED IN RULING C.O. CAMPBELL AND
               C.O. GARRETT WERE NOT ENTITLED TO IMMUNITY.

               ASSIGNMENT OF ERROR NO. 2: THE MAGISTRATE AND
               THE COURT ERRED IN RULING DEFENDANT-
               [APPELLEE'S] EMPLOYEES WERE NOT AWARE OF
               CORRECTIONAL    OFFICERS    CAMPBELL'S    AND
               GARRETT'S ASSAULTS IN THE INFIRMARY BASED ON
               THEIR CLEAR PROXIMITY TO THE EVENT, THE LEVEL
               OF NOISE, THE ACRID SMELL OF MACE AND THE
               OBVIOUS BLOOD INDICATING THE FEROCITY OF THE
               ATTACK.

               ASSIGNMENT OF ERROR NO. 3: THE MAGISTRATE'S
               AND THE COURT'S DECISIONS AS TO BOTH ISSUES,
               IMMUNITY AND FAILURE TO PROTECT, ARE AGAINST
No. 13AP-547                                                                              6

               THE WEIGHT AND SUFFIICENCY OF THE EVIDENCE
               AND CONTRARY TO LAW.

               ASSIGNMENT OF ERROR NO. 4: THE FAILURE TO JOIN
               GARRETT AND CAMPBELL AS PARTIES, ONCE THE
               DEFENDANTS-APPELLEES ASSERTED THEY WERE NOT
               ENTITLED TO IMMUNITY, OR TO NOTIFY THEM OF THE
               RIGHT TO OBJECT AND APPEAL, WAS ERROR.

       {¶ 21} Appellant's first, second, and third assignments of error are interrelated and
will be considered together.    Under the first assignment of error, appellant asserts the
trial court erred in ruling that COs Garrett and Campbell were not entitled to immunity,
while his second assignment of error challenges the court's ruling that he failed to prove
appellee's employees were aware of the assaults by COs Garrett and Campbell. In his
third assignment of error, appellant contends the above determinations by the court were
against the manifest weight of the evidence and contrary to law.
       {¶ 22} We initially address appellant's contention that the trial court erred in
holding that COs Garrett and Campbell were not entitled to civil immunity. In accordance
with R.C. 2743.02(F), the Court of Claims "has exclusive jurisdiction to determine
whether a state employee is immune from liability under R.C. 9.86." Johns v. Univ. of
Cincinnati Med. Assoc., Inc., 101 Ohio St.3d 234, 2004-Ohio-824, syllabus.             R.C.
2743.02(F) states in part as follows:
               A civil action against an officer or employee, as defined in
               section 109.36 of the Revised Code, that alleges that the
               officer's or employee's conduct was manifestly outside the
               scope of the officer's or employee's employment or official
               responsibilities, or that the officer or employee acted with
               malicious purpose, in bad faith, or in a wanton or reckless
               manner shall first be filed against the state in the court of
               claims that has exclusive, original jurisdiction to determine,
               initially, whether the officer or employee is entitled to
               personal immunity under section 9.86 of the Revised Code
               and whether the courts of common pleas have jurisdiction
               over the civil action.

       {¶ 23} R.C. 9.86, which confers immunity on state officers and employees,
provides in part as follows:
               [N]o officer or employee shall be liable in any civil action that
               arises under the law of this state for damage or injury caused
No. 13AP-547                                                                               7

               in the performance of his duties, unless the officer's or
               employee's actions were manifestly outside the scope of his
               employment or official responsibilities, or unless the officer or
               employee acted with malicious purpose, in bad faith, or in a
               wanton or reckless manner.

        {¶ 24} In general, "[m]alicious purpose encompasses exercising 'malice,' which can
be defined as the willful and intentional design to do injury, or the intention or desire to
harm another, usually seriously, through conduct that is unlawful or unjustified." Caruso
v. State, 136 Ohio App.3d 616, 620 (10th Dist.2000). Under Ohio law, "[a] person is
subject to liability for battery when he acts intending to cause a harmful or offensive
contact, and when a harmful contact results." Love v. Port Clinton, 37 Ohio St.3d 98, 99
(1988).
        {¶ 25} In arguing that the trial court erred in ruling that COs Campbell and Garrett
were not entitled to immunity, appellant contends that these COs were acting in
accordance with R.C. 2921.44(C)(3), which states in part: "No law enforcement officer
shall negligently * * * [f]ail to control an unruly prisoner."        Specifically, appellant
contends the COs took action to prevent him from intimidating or injuring Hodge.
        {¶ 26} In the instant case, the magistrate, in considering the issue of immunity
with respect to COs Garrett and Campbell, found that "while Garrett was initially
privileged to stop and search [appellant] pursuant to his duties to maintain security * * *
there was no evidence [appellant] thereafter disobeyed any orders or presented a threat of
harm to himself or others." The magistrate found that "any use of force by Garrett and
Campbell after the initial confrontation was unjustified, excessive, and constituted
battery." The magistrate further determined that, "while Campbell and Garrett were
acting within the scope of their employment * * * when they stopped and searched
[appellant], they then acted with a 'malicious purpose' in that their only purpose in taking
[appellant] into the infirmary was to punish him * * * by inflicting bodily injury upon
him."
        {¶ 27} In addressing appellant's objections to the magistrate's decision, the trial
court agreed with the magistrate's determination that COs Garret and Campbell acted
with malicious purpose. Specifically, the court held that the "sole purpose" for the attack
by the COs was to punish appellant for his confrontations with Hodge.              The court
No. 13AP-547                                                                               8

determined that, "[w]hile Garrett initially searched plaintiff for contraband, he and
Campbell then acted with a malicious purpose when they continued to beat [appellant]
and spray him with Mace in the infirmary." The trial court additionally found that
"Garrett and Campbell's conduct in maliciously assaulting [appellant] when there was no
threat of violence or physical harm was manifestly outside the scope of their employment
as COs."
       {¶ 28} Upon review of the record, the evidence supports the trial court's finding
that COs Campbell and Garrett maced and assaulted appellant, without provocation or
justification, for the malicious purpose of causing him harm. According to the testimony
presented, appellant did not have contraband at the time the COs approached him, and he
made no efforts to resist the COs. The evidence also indicated that the COs were not
acting out of a perceived threat by the inmate but, rather, were motivated by a desire to
intimidate appellant for questioning a porter about a missing video game.           Appellant
testified that the COs sprayed him with mace "more than 10 times" during the incident.
(Tr. 36.) According to appellant, the COs sprayed mace "in my face, in my penis, my anus,
and [one of the COs] soaked his glove and stuck it in my mouth and stuck it in my nose
and rubbed it in my eyes." (Tr. 36-37.) Appellee's investigator, Clark, confirmed that the
COs discharged a significant amount of mace (28 grams) from the canister belonging to
CO Campbell. Here, the trial court's findings that COs Garrett and Campbell acted with
malicious purpose and that such conduct was outside the scope of their employment are
not against the manifest weight of the evidence. Accordingly, we find no error with the
trial court's determination that COs Garrett and Campbell are not entitled to civil
immunity.
       {¶ 29} We next address appellant's contention that the trial court erred in finding
that he failed to prove, by a preponderance of the evidence, that appellee's employees
knew of the assault by COs Garrett and Campbell. Specifically, appellant challenges the
trial court's determination that he failed to establish that employees inside the infirmary
at the time of the incident should have been aware of the assault by the two COs.
       {¶ 30} In general, "Ohio law imposes a duty of reasonable care upon the state to
provide for its prisoners' health, care, and well-being." McDonald v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 02AP-735, 2013-Ohio-513, ¶ 8.
No. 13AP-547                                                                            9

       {¶ 31} In the instant case, the magistrate noted that Clark, as part of his
investigation, had interviewed employees who were inside the infirmary on the date of the
incident. The magistrate further noted Clark's testimony that "the other employees in the
infirmary * * * informed him that they were unaware of the attack," but that Clark himself
"was of the opinion that they should have been able to hear [appellant's] screams" and
smell the administration of mace. The magistrate, however, found insufficient other
evidence to establish that appellee's employees knew or should have known of the attack
by COs Garrett and Campbell.
       {¶ 32} In addressing appellant's objections to the magistrate's determination, the
trial court held in part:
               Clark testified that other employees of [appellee] were in the
               infirmary at the time of the attack, including two COs and
               three nurses. When Clark questioned the two COs about the
               incident, they informed him that they did not see or hear the
               attack nor did they smell Mace. Clark testified that one nurse
               heard noise but she was told to mind her own business. None
               of these employees were called to testify at trial.

               [Appellant] contends that based on the size of the infirmary,
               the employees present in the area should have known that the
               attack was taking place. Upon review of the trial transcript,
               Clark's testimony as to the size of the infirmary was compared
               to the size of the room where the trial took place.
               Additionally, Clark testified that the infirmary has hallways
               and that one may not be able to see the entire infirmary from
               within it. Based on the record, the court is unable to
               determine the size of the infirmary and if employees would
               have seen the attack taking place.

               While [appellant] testified that he recalled COs Ran[s]om and
               Windom and nurses watching the attack in the infirmary,
               Clark testified that in the interviews he conducted, the COs
               and nurses said that they did not see the attack. This
               testimony is conflicting and as such, the court concludes that
               [appellant] has failed to prove by a preponderance of the
               evidence that [appellee's] employees in the infirmary knew
               the assault was occurring. * * *

               Furthermore, the court finds that [appellant] failed to prove
               by a preponderance of the evidence that [appellee's]
               employees knew or should have known about the assault
               based on the noise and the smell of Mace. While Clark
No. 13AP-547                                                                                10

               testified that the smell of Mace would be strong if it was
               discharged, he has no first-hand knowledge about any smell in
               the infirmary. Additionally, according to Clark, nurse Moore
               heard some sort of commotion, but another nurse told her to
               "mind her own business." The court concludes that
               [appellant] presented insufficient evidence to prove that
               [appellee's] employees heard the attack or smelled the Mace.
               Finally, the court finds that the fact that the blood crew was
               called to clean up blood does not prove that [appellee's]
               employees knew or should have known about the attack when
               it was occurring in the infirmary.

       {¶ 33} On appeal, appellant cites to the investigative report of Clark as evidence
that CO Clevenger was aware of the attack in the infirmary. Appellant also contends there
was evidence that a nurse heard the assault, but that another nurse told her to mind her
own business. As noted above, appellant argued before the trial court that appellee's
employees should have been aware of the attack based on the size of the infirmary. The
trial court, however, found the record evidence insufficient to determine the size of the
infirmary and whether or not other employees would have seen the attack taking place.
       {¶ 34} With respect to evidence regarding the dimensions and layout of the
infirmary, counsel for appellant relied upon the testimony of Clark, who conducted an
investigation of the incident. The transcript indicates that counsel for appellant asked
Clark if he could "describe the facilities so that we have some idea of the size and where
* * * this took place." (Tr. 57.) Clark responded: "[T]here is a desk. There are some cells
back there. Some of them are what you would * * * consider * * * a dry cell separation or a
suicide watch cell. And then there's also a general holding cell. And down the one
corridor, there is * * * another set of cells that's kind of separate and apart." (Tr. 57-58.)
In response to counsel's inquiry as to whether the infirmary was as large as the parole
hearing room in which the magistrate was conducting the trial, Clark stated that the
infirmary was "larger than this." (Tr. 58.)
       {¶ 35} Clark acknowledged "[t]here are some hallways that you wouldn't
necessarily be able to see the entirety of the infirmary from." (Tr. 58.) At trial, counsel for
appellant asked Clark the following: "[W]ith the door closed, would it be impossible to
either smell or hear anything going on in that area?" (Tr. 59.) Clark responded: "I
No. 13AP-547                                                                              11

wouldn't have an opinion on whether or not you would hear anything or not, because I'm
not familiar enough with the institution to answer that question." (Tr. 59-60.)
       {¶ 36} Clark further testified that he had interviewed the employees present at the
infirmary during the incident, and that they all denied hearing or seeing an attack.
Specifically, Clark testified that CO Windom claimed not to have seen or heard anything.
According to Clark, CO Clevenger related that, at "one point in time, [he] saw Campbell
standing up over top of [appellant], and that Garrett was holding him down on the
ground, attempting to restrain him, but that he saw nothing unusual about the situation
and turned and walked the other way." (Tr. 68.) When Clark asked CO Clevenger why he
walked away, the CO "said he thought they had it under control because Campbell was
standing." (Tr. 69.) CO Clevenger also told Clark that he did not smell any mace. Clark
testified that CO Ransom "stayed consistent through all of the interviews," and that "his
only recollection was opening the door for them to take him into the back area of the
infirmary, and then claimed to stay out front." (Tr. 70.) CO Ransom told Clark that he
did not smell anything.
       {¶ 37} Appellant contends that CO Clevenger gave inconsistent statements to the
investigator regarding whether an inmate crew was called to the infirmary following the
incident to clean up blood. As noted by the trial court, however, such evidence does not
address the issue whether employees were aware of the incident at the time of the assault.
Further, while appellant points to Clark's testimony that Nurse Edgell was in the area at
the time of the incident, Clark's own report states: "There is not definite evidence that she
actually witnessed the use of force."
       {¶ 38} Upon review, the trial court's finding that it was "unable to determine the
size of the infirmary and if employees would have seen the attack taking place" in the back
of the facility is not against the weight of the evidence. As noted, there was evidence that
the infirmary contained hallways and a set of cells "separate and apart," and the evidence
also indicated that COs Campbell and Garrett took appellant to the back of the infirmary
to carry out the assault. In interviews with investigators, each of appellee's employees
who were present in the infirmary denied observing the attack by the COs, and none of
those individuals were called to testify at trial. Based upon the record on appeal, and in
light of appellant's burden, we cannot conclude that the trial court erred in finding that
No. 13AP-547                                                                                      12

appellant failed to establish, by a preponderance of the evidence, that appellee's
employees should have been aware of the assault by COs Garrett and Campbell.
       {¶ 39} Accordingly, appellant's first, second, and third assignments of error are
without merit and are overruled.
       {¶ 40} Under the fourth assignment of error, appellant asserts the trial court erred
in failing to join COs Garrett and Campbell as parties. We disagree.
       {¶ 41} As noted by the trial court, while an employee "has the right to appeal the
court's decision denying the employee immunity, R.C. 2743.02(F) does not require the
court to join the employee as a party to the action."1 In the instant case, the record
indicates that appellee provided COs Garrett and Campbell with notice that their
immunity was being contested and provided them the opportunity to appear and
participate during the hearing before the magistrate. Upon review, we find no error by
the trial court.
       {¶ 42} Appellant's fourth assignment of error is without merit and is overruled.
       {¶ 43} Based upon the foregoing, appellant's first, second, third, and fourth
assignments of error are overruled, and the judgment of the Court of Claims of Ohio is
hereby affirmed.
                                                                              Judgment affirmed.

                             CONNOR and O'GRADY, JJ., concur.

                                   ___________________




1 R.C. 2743.02(F) states in part: "The * * * employee may participate in the immunity determination

proceeding before the court of claims to determine whether the * * * employee is entitled to personal
immunity under section 9.86 of the Revised Code."
