[Cite as Collier v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4304.]

                                                         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




ANDRE COLLIER

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

        Defendant
        Case No. 2009-05978

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

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging negligent training and supervision.1
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 June 30, 2010, defendant filed motions to quash
the subpoenas issued for Unit Sergeant Werner, Alice Cain, Corrections Lieutenant
Iceman, D.A. Coble, Tim Milligan, Corrections Officer (CO) Tracy Cutright, Kelly Riehle,
C. Sayers, Corrections Lieutenant Dunn, CO Kinder, CO Rahman, unnamed healthcare
administrator, and unnamed state highway patrol trooper. The motions concerning Cain
and Iceman are DENIED as moot, inasmuch as they appeared for trial. The motion
concerning Werner is GRANTED pursuant to Civ.R. 45(C)(3(d).                          Defendant argues
that the proper witness and mileage fees were not tendered upon service of the
remaining subpoenas. The court notes that improper or failure of service is not a basis


        1
         Plaintiff’s assault claim, medical claim, and constitutional claims were dismissed by the court on
June 30, 2010.
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for quashing a subpoena pursuant to Civ.R. 45(C)(3).              Accordingly, defendant’s
remaining motions are DENIED. However, inasmuch as plaintiff did not provide the
appropriate witness fees, the court finds that the subpoenas were not properly served
pursuant to Civ.R. 45(B), and are therefore not enforceable.
       {¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Marion Correctional Institution (MCI) pursuant to R.C. 5120.16. On
March 31, 2008, plaintiff was transported to the Corrections Medical Center for
treatment for hemorrhoids. After treatment, plaintiff was placed in handcuffs and leg
irons and put into “holding area 2A” with several other inmates to await transport back to
MCI. Plaintiff testified that he asked the CO posted to the area to remove his handcuffs
so that he could use the restroom and that the CO granted his request. According to
plaintiff, when he returned from the restroom, the CO was eating and plaintiff sat down
to watch television while the CO finished his repast.        Several minutes later, Tracy
Cutright, a CO from the Belmont Correctional Institution, entered the area and called for
inmate Taylor; however, no one responded and Cutright left the area.
       {¶ 4} Plaintiff testified that after Cutright left, he observed inmate Taylor
sleeping. A short period of time later, Cutright returned and again called Taylor’s name.
According to plaintiff, Taylor awoke and slowly responded to Cutright’s summons.
Plaintiff testified that Cutright berated Taylor for not answering him the first time and for
being slow. Plaintiff stated that he interjected that Cutright should “go easy” on Taylor
because he has a “sleeping disease.” According to plaintiff, this made Cutright angry
and, as a result, Cutright removed both plaintiff and Taylor from the area and took them
into a locked room. Plaintiff testified that Cutright ordered him to face the wall and then
threatened to beat him. Plaintiff stated that he told Cutright that he “wasn’t going to fight
him,” at which point Cutright grabbed his right ear and twisted it, then he and Cutright
exchanged more “words.” Plaintiff testified that the exchange escalated to the point
where Cutright placed his right arm in an “arm bar,” slammed him to the floor, and
Case No. 2009-05978                         -3-                 MAGISTRATE DECISION

stepped on his right hand. According to plaintiff, another CO entered the room and
removed Taylor, while Cutright placed plaintiff in handcuffs. Plaintiff stated that he and
Cutright then had another verbal exchange when Cutright ordered him to stand up,
which was difficult due to the handcuffs and leg irons. Plaintiff stated that at that point,
four other COs entered the room and took him to an isolation cell.
       {¶ 5} Plaintiff testified that although he obtained a conduct report during
discovery regarding the incident that appears to be signed by Cutright, he did not
receive a copy of it after the incident and was not disciplined for the incident. (Plaintiff’s
Exhibit 4.) Corrections Lieutenant Thomas Iceman testified that the conduct report
referenced by plaintiff does not appear as if it was ever processed and that no “charges”
were filed in connection with it.
       {¶ 6} In order for plaintiff to prevail on a claim for negligent training and
supervision, he must prove: 1) the existence of an employment relationship; 2) the
employee’s incompetence; 3) the employer’s actual or constructive knowledge of such
incompetence; 4) the employee’s act or omission causing plaintiff’s injuries; and 5) the
employer’s negligence in hiring or retaining the employee as the proximate cause of
plaintiff’s injuries. Evans v. Ohio State Univ. (1996), 112 Ohio App.3d 724.
       {¶ 7} There is no dispute that Cutright was employed by defendant at the time
of the incident. Plaintiff alleges that Cutright used excessive force against him during
the March 31, 2008 incident which amounts to “incompetence.”
       {¶ 8} 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:
       {¶ 9} “(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:
       {¶ 10} “(a) Self-defense from physical attack or threat of physical harm;
       {¶ 11} “(b) Defense of another from physical attack or threat of physical attack;
Case No. 2009-05978                        -4-                  MAGISTRATE DECISION

       {¶ 12} “(c) When necessary to control or subdue an inmate who refuses to obey
prison rules, regulations or orders;
       {¶ 13} “(d) When necessary to stop an inmate from destroying property or
engaging in a riot or other disturbance;
       {¶ 14} “(e) Prevention of an escape or apprehension of an escapee; or
       {¶ 15} “(f) Controlling or subduing an inmate in order to stop or prevent self-
inflicted harm.”
       {¶ 16} 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.)
       {¶ 17} Based upon plaintiff’s testimony, the court finds that the force he alleges
that Cutright used against him was not excessive and no more than necessary to
“control or subdue” plaintiff after he argued with Cutright.     Accordingly, plaintiff has
failed to prove Cutright’s “incompetence,” and therefore cannot meet his burden of proof
with respect to his negligent training and supervision claim.
       {¶ 18} Based upon the foregoing, 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
Case No. 2009-05978                        -5-                 MAGISTRATE DECISION

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                                   Andre Collier, #233-115
Emily M. Simmons                               London Correctional Institution
James P. Dinsmore                              P.O. Box 69
Jennifer A. Adair                              London, Ohio 43140
Assistant Attorneys General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

MR/cmd
Filed August 12, 2010
To S.C. reporter September 9, 2010
