[Cite as Easley v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-1252.]



                                                        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



DAVID EASLEY

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION, et al.

       Defendants

Case No. 2010-11862

Judge Clark B. Weaver Sr.
Magistrate Matthew C. Rambo

ENTRY GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

        {¶1} On November 28, 2011, defendants 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(D).
        {¶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
Case No. 2010-11862                              -2-                                           ENTRY

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, Department of Rehabilitation and Correction, at the Southern Ohio
Correctional Facility (SOCF) pursuant to R.C. 5120.16. Plaintiff alleges that on May 27
or 28, 2010, Corrections Officer Frazer assaulted him in the L3 block of SOCF.1 Plaintiff
alleges that Frazer “lied on me slammed me into mop closet knock head on concrete
sink and floor.”
       {¶5} Defendants argue that Frazer was privileged to use force against plaintiff in
the incident described in the complaint.
       {¶6} 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:
       {¶7} “(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:
       {¶8} “(a) Self-defense from physical attack or threat of physical harm;
       {¶9} “(b) Defense of another from physical attack or threat of physical attack;
       {¶10} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders;
       {¶11} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance;
       {¶12} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶13} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”


       1
        The remainder of plaintiff’s claims were dismissed by the court on February 7, 2011.
Case No. 2010-11862                            -3-                                    ENTRY

          {¶14} 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.)
          {¶15} In support of its motion, defendant filed Frazer’s affidavit, wherein he
states:
          {¶16} “1. I am currently employed full-time by Defendant, the Ohio Department
of Rehabilitation and Correction (DRC) as a corrections officer at [SOCF].
          {¶17} “2. I have personal knowledge and I am competent to testify to the facts
contained in this Affidavit.
          {¶18} “* * *
          {¶19} “6. On May 27, 2010, I was working as the L-3 Block Officer and had
begun to take inventory of the porter closet prior to locking it up in anticipation of the
next shift change.
          {¶20} “7. While I was beginning to lock the porter closet, [plaintiff] began to run
down the upper level range towards me.
          {¶21} “8. As [plaintiff] came towards me, I gave him two direct orders to return to
his cell and lock up.
          {¶22} “9. [Plaintiff] disobeyed my direct orders to return to his cell and lock up.
          {¶23} “10. [Plaintiff] charged at me and nearly knocked me to the ground.
          {¶24} “11. I was able to gain control of the situation by placing [plaintiff] up
against the wall and cuffing him.
          {¶25} “12. While cuffing [plaintiff], he made verbal threats towards me and my
family.
Case No. 2010-11862                          -4-                                      ENTRY

       {¶26} “13. No other force was used.
       {¶27} “14. The force used was necessary to defend myself from [plaintiff] who
charged at me and nearly knocked me to the ground.
       {¶28} “15. The force used was also necessary to control and subdue [plaintiff]
who refused to obey prison rules, regulations, or orders.
       {¶29} “16. Attached to this Affidavit as Exhibit 1 is a true and accurate copy of the
Incident Report that I completed after the May 27, 2010 incident with [plaintiff].”
       {¶30} Plaintiff did not file an affidavit or any other evidence to counter the affidavit
testimony presented by defendants. Civ.R. 56(E) provides, in part, that: “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.”
       {¶31} Based upon the uncontested affidavit testimony from Frazer, the only
reasonable conclusion to reach is that he was privileged to use force against plaintiff
during the May 17, 2010 incident and that his use of force did not exceed the privilege.
Accordingly, defendants’ motion for summary judgment is GRANTED and judgment is
rendered in favor of defendants. 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.



                                           _____________________________________
                                           CLARK B. WEAVER SR.
                                           Judge

cc:
Case No. 2010-11862               -5-                       ENTRY


Ashley L. Oliker                   David Easley, #306-400
Assistant Attorney General         P.O. Box 45699
150 East Gay Street, 18th Floor    Lucasville, Ohio 45699
Columbus, Ohio 43215-3130

MCR/dms
Filed January 24, 2012
To S.C. reporter March 23, 2012
