[Cite as Dhalow v. Dept. of Rehab. & Corr., 2010-Ohio-3749.]

                                                       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




ABDURAHMAN MOHAMED DHALOW

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-05137

Judge Alan C. Travis
Magistrate Matthew C. Rambo

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging that an employee of defendant
assaulted him. The issues of liability and damages were bifurcated and the case
proceeded to trial on the issue of liability.
        {¶ 2} As an initial matter, on April 23, 2010, defendant filed a motion to quash
the subpoena issued to Larry Greene. On April 26, 2010, defendant filed an affidavit
from Greene in support of the motion, wherein he states that he received the subpoena
on April 26, 2010, one day before trial, but that he was scheduled to attend a mandatory
training seminar on the day of trial. Upon review, defendant’s motion is GRANTED and
the subpoena issued to Larry Greene is hereby quashed.
        {¶ 3} 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 testified that on February 17, 2009, a “commissary day,” he was permitted to
purchase food items from the SOCF commissary.                  According to plaintiff, after he
purchased several items from the commissary, an inmate in the cell above his lowered
Case No. 2009-05137                        -2-                 MAGISTRATE DECISION

a “line,” consisting of a sock tied to the end of a string, so that the two could exchange
and share commissary items.         Plaintiff admitted that such a line is considered
contraband and not permitted under defendant’s rules. Plaintiff stated that during the
transaction, corrections officer (CO) Philip Markins walked by his cell, saw the line, and
“snatched” it before the other inmate had a chance to pull it back. Plaintiff testified that
as a result of Markins’ actions, he “disrespected” Markins by calling him “every name I
could think of.” According to plaintiff, Markins returned to the area shortly thereafter and
sprayed him with two cans of chemical mace. Plaintiff asserts that Markins’ actions
were unwarranted and excessive.
       {¶ 4} Plaintiff further testified that after the incident Markins wrote a conduct
report wherein he alleged that after he passed plaintiff’s cell, he heard plaintiff call for
“help”; that when he returned to plaintiff’s cell, plaintiff attempted to throw a cup of
unknown liquid on him; that he sprayed plaintiff with a short burst of mace; that plaintiff
again tried to throw the liquid at him; that he administered another short burst of mace;
and that plaintiff then dropped the cup. (Plaintiff’s Exhibit 2.) The Rules Infraction
Board (RIB) subsequently found plaintiff guilty of violating institutional rules by
attempting to throw an unknown substance on Markins.            However, on appeal, the
warden’s assistant, Larry Greene, overturned the RIB decision. (Plaintiff’s Exhibit 1.) In
his written decision, Greene found that the video recording of the incident showed
Markins spray plaintiff without provocation; that the video did not show plaintiff
attempting to throw liquid on Markins. Greene also states that the RIB withheld the
video from plaintiff even though it was used by defendant as evidence against him.
       {¶ 5} A review of the video shows the “line” described by plaintiff hanging in
front of his cell; a CO picking up the line and walking away from plaintiff’s cell; the CO
returning to plaintiff’s cell less than 10 seconds later; the CO raising his arm and
pointing it into plaintiff’s cell twice; and the CO leaving the area. From beginning to end
the incident lasted approximately 30 seconds. Neither plaintiff nor the interior of his cell
Case No. 2009-05137                           -3-                 MAGISTRATE DECISION

can be observed on the video and the court is unable to precisely determine what
occurred. (Defendant’s Exhibit L.)
       {¶ 6} Markins testified that after he picked up the line and walked away from
plaintiff’s cell, he heard plaintiff “holler” for help. According to Markins, yelling for help is
a well-known tactic that inmates use to get COs to come to the front of their cells, but
that he nevertheless responded out of concern that plaintiff may have been harming
himself. Markins testified that when he arrived in front of plaintiff’s cell, plaintiff was
holding a cup containing an unknown liquid and stated “that’s my line bitch,” “eat this
shit bitch.”   Markins stated that he then administered “reactive force” and sprayed
plaintiff with mace to stop him from throwing the unknown liquid. According to Markins,
plaintiff made a second attempt to throw the liquid and he administered a second burst
of mace whereupon plaintiff dropped the cup and Markins left the range.
       {¶ 7} Markins further testified that after he left the range, he notified his
supervisor of the incident and that plaintiff was subsequently removed from his cell and
taken to a segregation cell. Markins stated that the medical department was notified of
the incident and that a member of the medical staff examined plaintiff while he was in
segregation. (Defendant’s Exhibit J.) Markins testified that he then filed both a conduct
report and an incident report, and that he also filled out a use-of-force cover sheet.
(Plaintiff’s Exhibit 2, Defendant’s Exhibits D, E.) According to Markins, a use-of-force
committee reviewed the incident and found that he used appropriate force during the
incident and that the deputy warden of operations concurred with that finding.
(Defendant’s Exhibit F.)
       {¶ 8} Linnea Mahlman is the Institutional Inspector for SOCF. Mahlman testified
that her duties include reviewing inmate complaints and grievances. She stated that
plaintiff filed a grievance following the incident and that she denied the grievance
because the incident was pending before both the RIB and the use-of-force committee.
According to Mahlman, the grievance process, the RIB, and the use-of-force committee
are separate processes within the institution.         However, she also stated that she
Case No. 2009-05137                        -4-                MAGISTRATE DECISION

reviewed the video recording and conduct reports and that it was her opinion that
Markins acted properly.
       {¶ 9} 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:
       {¶ 10} “(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:
       {¶ 11} “(a) Self-defense from physical attack or threat of physical harm;
       {¶ 12} “(b) Defense of another from physical attack or threat of physical attack;
       {¶ 13} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders;
       {¶ 14} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance;
       {¶ 15} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶ 16} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶ 17} 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.)
       {¶ 18} Based upon the evidence adduced at trial, the court finds that Markins
was more credible than plaintiff. As a result, the court finds that Markins acted in self
Case No. 2009-05137                         -5-                 MAGISTRATE DECISION

defense when he administered chemical mace against plaintiff and that such force was
not excessive. Accordingly, judgment is recommended in favor of defendant.
         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).



                                           _____________________________________
                                           MATTHEW C. RAMBO
                                           Magistrate

cc:


Amy S. Brown                                  Abdurahman Mohamed Dhalow, #527-094
Kristin S. Boggs                              P.O. Box 45699
Assistant Attorneys General                   Lucasville, Ohio 45699
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

MR/cmd
Filed July 22, 2010
To S.C. reporter August 11, 2010
