[Cite as Easley v. Dept. of Rehab. & Corr., 2010-Ohio-2658.]

                                                         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

       Defendant
       Case No. 2009-05277-AD

Judge Alan C. Travis
Magistrate Matthew C. Rambo

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
TRANSFERRING CASE TO ADMINISTRATIVE DOCKET




        {¶ 1} On April 6, 2010, defendant filed a combined motion for summary
judgment pursuant to Civ.R. 56(B) and motion to transfer plaintiff’s case to the
administrative docket. Plaintiff has not opposed the motion. Plaintiff has not opposed
the motion. The motion is now before the court on 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
Case No. 2009-05277-AD                          -2-                                        ENTRY

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 County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317. At all times relevant, plaintiff was an inmate in
the custody and control of defendant at the Southern Ohio Correctional Facility (SOCF)
pursuant to R.C. 5120.16. Plaintiff alleges that on May 8, 2009, a corrections officer
(CO) assaulted him. Plaintiff also alleges that defendant’s employees destroyed his CD
player and CDs, lost his shoes and address book, and “stole” an issue of Penthouse
magazine from him.1
       {¶ 4} 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:
       {¶ 5} “(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:
       {¶ 6} “(a)                              Self-defense from physical attack or threat of
physical harm;
       {¶ 7} “(b)                              Defense of another from physical attack or
threat of physical attack;
       {¶ 8} “(c)When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders;
       {¶ 9} “(d)                              When necessary to stop an inmate from
destroying property or engaging in a riot or other disturbance;



       1
        On August 7, 2009, the court dismissed plaintiff’s claims regarding his medical treatment, his
housing placement within SOCF, and his retaliation claims.
Case No. 2009-05277-AD                        -3-                                 ENTRY

       {¶ 10} “(e)                           Prevention of an escape or apprehension of an
escapee; or
       {¶ 11} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶ 12} 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.)
       {¶ 13} In support of its motion, defendant filed the affidavit of CO J. Azbell.
Azbell states in his affidavit:
       {¶ 14} “1. I am currently employed by [defendant] as a [CO] at [SOCF].
       {¶ 15} “2. I have personal knowledge, and I am competent to testify to the facts
contained in this affidavit.
       {¶ 16} “3. [Plaintiff] was incarcerated at [SOCF] on or about May 8, 2009.
       {¶ 17} “4. On May 8, 2009, around 7:14 p.m., after giving [plaintiff] his medication
I began to do a routine check and walked onto the 21-40 range. [Plaintiff] was in K2-80.
I heard [plaintiff] kicking his cell door and screaming ‘turn this goddamn movie on!’ I
then went back to [plaintiff’s] cell and gave [plaintiff] a direct order to stop. I observed
that [plaintiff] had a blanket wrapped around his face and mouth. [Plaintiff] then made a
statement ‘Turn this fucking movie on or I’m going to throw shit on you.’” [Plaintiff] then
grabbed something from his bed and threw it at me. I then administered a short burst of
O.C. spray to [plaintiff’s] facial area and exited the range.
Case No. 2009-05277-AD                       -4-                                     ENTRY

       {¶ 18} “5. [Plaintiff] was sent to seek medical attention.       He was not denied
permission to wash off the mace. [Plaintiff] was placed in his cell after seeking medical
treatment.”
       {¶ 19} Azbell also identified and authenticated attached copies of both an
incident report and conduct report that he prepared as a result of the incident.
       {¶ 20} Based upon the undisputed affidavit testimony provided by defendant, the
court finds that Azbell used no more force necessary than to defend himself and to
control and subdue plaintiff. Accordingly, defendant is entitled to judgment as a matter
of law on plaintiff’s assault claim.
       {¶ 21} With respect to plaintiff’s property claim, R.C. 2743.10 provides, in
pertinent part, that “[c]ivil actions against the state for two thousand five hundred dollars
or less shall be determined administratively by the clerk of the court of claims.”
       {¶ 22} The court finds that the value of plaintiff’s property allegedly lost or “stolen”
by defendant does not exceed $2,500.
       {¶ 23} Based upon the foregoing, defendant’s motion is GRANTED. Judgment is
rendered in favor of defendant on plaintiff’s assault claim, and plaintiff’s property claim is
TRANSFERRED to the administrative docket where it shall be processed in accordance
with R.C. 2743.10(A).        Pursuant to Civ.R. 54(B), this court makes the express
determination that there is no just reason for delay.



                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge

cc:
Case No. 2009-05277-AD            -5-                       ENTRY


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

MR/cmd
Filed June 1, 2010
To S.C. reporter June 9, 2010
