[Cite as Moore v. Ohio State Penitentiary, 2010-Ohio-1411.]

                                                        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




WARD L. MOORE, JR.

       Plaintiff

       v.

OHIO STATE PENITENTIARY, et al.

       Defendants
       Case No. 2007-09658

Judge Joseph T. Clark
Magistrate Robert C. Van Schoyck

MAGISTRATE DECISION




        {¶ 1} Pursuant to Civ.R. 53, Magistrate Robert C. Van Schoyck was appointed
to conduct all proceedings necessary for decision in this matter.
        {¶ 2} Plaintiff brought this action alleging that an employee of defendant, Ohio
State Penitentiary (OSP), assaulted him, and further alleging that defendant, Ohio State
Highway Patrol (OSHP), was negligent in its investigation of the alleged assault. The
issues of liability and damages were bifurcated and the case proceeded to trial on the
issue of liability.
        {¶ 3} As an initial matter, on October 13, 2009, OSP filed a motion to quash
subpoenas that were issued to three of its employees, one former employee, and one
inmate. OSP argues that service of the subpoenas failed inasmuch as plaintiff did not
tender the appropriate witness fees to the employees and provided incorrect service
addresses for both the former employee and inmate. Upon review, OSP’s motion is
DENIED to the extent that failure of service is not a proper basis for quashing a
subpoena under Civ.R. 45(C)(3). However, the court finds that the subpoenas were not
Case No. 2007-09658                         -2-                MAGISTRATE DECISION

properly served pursuant to Civ.R. 45(B) and are therefore not enforceable.
         {¶ 4} At all times relevant, plaintiff was an inmate in the custody and control of
OSP pursuant to R.C. 5120.16. This case arises out of a November 8, 2007 altercation
between staff and inmates in pod A7, where plaintiff and approximately seven other
inmates resided. The altercation began at about 1:00 p.m., when Corrections Officer
(CO) Ulysses Gordon conducted a “shakedown” of inmate Ernie Marshall’s cell while
Marshall was taking a shower.
         {¶ 5} According to Gordon, when Marshall returned from the shower he
complained about the shakedown procedure and became aggressive. Gordon and CO
Megan Rice testified that as a result of Marshall’s arguing with Gordon, other inmates
who were socializing in a common area became agitated and began to yell in support of
Marshall. Rice radioed for assistance and several officers quickly responded to the
scene.
         {¶ 6} Among the first responders was Corrections Lieutenant Glenn Booth, who
testified that upon entering the pod he witnessed Marshall arguing with Gordon while
several inmates stood nearby angrily shouting.        Booth stated that although officers
eventually removed Marshall from the pod, the remaining inmates, particularly inmate
Jerry Pleasant, continued to shout at the officers and refused to return to their cells.
Booth testified that when he ordered Pleasant to stand against a wall, Pleasant threw a
punch at him and, as a result, several officers attempted to subdue Pleasant. Booth
stated that a chaotic scene ensued in which officers grappled on the floor with Pleasant
while inmates stood around them yelling and screaming.
         {¶ 7} Case Manager Robert Wolfe testified that while officers were attempting to
subdue Pleasant, he ordered plaintiff and the other inmates to return to their cells.
According to Wolfe, plaintiff was argumentative, refused to return to his cell, and stood
in a threatening stance “within breathing distance” of Wolfe. Doug Carter, who was a
corrections lieutenant at the time of the incident but no longer works for OSP, testified
Case No. 2007-09658                           -3-                 MAGISTRATE DECISION

that he entered the pod around this time and witnessed plaintiff standing with clenched
fists very near Wolfe such that he feared for Wolfe’s safety. Carter stated that he
ordered plaintiff to return to his cell, but that plaintiff refused. Carter testified that he
therefore wrapped his arms around plaintiff, took him to the ground, and handcuffed
him. Other officers then escorted plaintiff out of the pod.
        {¶ 8} In contrast to Carter’s and Wolfe’s testimony, plaintiff stated that he
remained calm throughout the incident and never threatened Wolfe, and that there was
thus no need to forcibly restrain him. Plaintiff admitted, though, that he argued with
officers about their treatment of Pleasant and refused several direct orders to return to
his cell. Plaintiff further testified that even if the use of force was appropriate, the
amount of force used was excessive to the extent that Carter “tackled” him and either
Carter or another officer stepped on his neck.
        {¶ 9} Plaintiff testified that as a result of the incident, he sustained injuries to his
back and shoulder. Nurse Sherry Edmonson testified that she examined plaintiff for
injuries and completed a medical exam report about 15 minutes after the incident
ended. (Defendants’ Exhibit B.) According to Edmonson, plaintiff denied suffering any
pain or injury and had no visible injuries, and she quoted him in her report as saying “I’m
fine.” Despite Edmonson’s testimony, plaintiff testified that she was not the nurse who
examined him after the incident. According to plaintiff, the examination was performed
by a nurse named “Edmonds,” and he claims that he reported his injuries to her at that
time.
        {¶ 10} As a result of the incident, Carter authored a conduct report alleging that
plaintiff disobeyed direct orders and committed other violations of institutional rules.
(Plaintiff’s Exhibit 1.) On November 15, 2007, OSP’s Rules Infraction Board found
plaintiff guilty of the violations alleged by Carter. (Plaintiff’s Exhibit 2.) On January 3,
2008, a three-member Use-of-Force Committee that was appointed to investigate the
incident found that the force used upon plaintiff and other inmates was “justified and not
excessive,” and the warden concurred with this finding on January 15, 2008.
Case No. 2007-09658                        -4-                MAGISTRATE DECISION

(Defendants’ Exhibit A, Page 1.)
       {¶ 11} 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:
       {¶ 12} “(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:
       {¶ 13} “(a) Self-defense from physical attack or threat of physical harm;
       {¶ 14} “(b) Defense of another from physical attack or threat of physical attack;
       {¶ 15} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders;
       {¶ 16} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance;
       {¶ 17} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶ 18} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶ 19} 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.)
       {¶ 20} The evidence adduced at trial established that the force used upon plaintiff
occurred within the context of a dangerous altercation between multiple inmates and
staff in a maximum security prison. Booth testified that the incident was “one of the
Case No. 2007-09658                        -5-                MAGISTRATE DECISION

worst” that he has seen in his more than ten years at OSP, and Wolfe called it a “very,
very scary situation.” According to the Use-of-Force Committee Report, at least 19
officers and other staff members from throughout the prison responded to the scene,
and four inmates, including plaintiff, were forcibly restrained and removed from the pod.
(Defendants’ Exhibit A, Page 1.)
       {¶ 21} Although plaintiff attempted to minimize his role in the incident, asserting
that he remained calm throughout and never threatened Wolfe, he admitted that he
argued with officers and disobeyed direct orders to return to his cell. Furthermore, the
court finds that plaintiff’s version of the incident was less credible than the accounts of
Carter and Wolfe, who testified that plaintiff was defiant and stood in an aggressive
stance such that it appeared he might attack Wolfe.
       {¶ 22} Based upon the totality of the evidence, the court is persuaded that Carter
was justified in using force to subdue plaintiff inasmuch as he disobeyed orders,
contributed to the disturbance, and became aggressive toward Wolfe. The court further
finds that Carter used only the amount of force that was reasonably necessary under
the circumstances.
       {¶ 23} Based upon the foregoing, the court finds that plaintiff failed to prove his
claim of assault by a preponderance of the evidence. Furthermore, plaintiff failed to
present any evidence that would support a claim for relief against OSHP. Accordingly,
judgment is recommended in favor of defendants.
       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
Case No. 2007-09658                                 -6-                MAGISTRATE DECISION

decision, as required by Civ.R. 53(D)(3)(b).



                                                  _____________________________________
                                                  ROBERT C. VAN SCHOYCK
                                                  Magistrate

cc:


Peter E. DeMarco                                       Ward L. Moore, Jr., #408-496
Stephanie D. Pestello-Sharf                            Southern Ohio Correctional Facility
Assistant Attorneys General                            P.O. Box 45699
150 East Gay Street, 18th Floor                        Lucasville, Ohio 45699
Columbus, Ohio 43215-3130

RCV/cmd/Filed March 11, 2010/To S.C. reporter March 30, 2010
