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Gioiella v. Ohio Department of Rehabilitation and Correction

Court of Claims of Ohio

May 9, 2017

SARAH GIOIELLA, et al. Plaintiffs
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

          Sent to S.C. Reporter 6/23/17.

          Eric A. Walker Timothy M. Miller Assistant Attorneys General.

          DECISION OF THE MAGISTRATE

          ROBERT VAN SCHOYCK Magistrate.

          {¶1} Plaintiff, Sarah Gioiella[1] (hereinafter "plaintiff), brings this action asserting a claim for employer intentional tort under R.C. 2745.01. Plaintiff was injured in the course of her employment with defendant as a corrections officer at the Toledo Correctional Institution (ToCI) on November 22, 2013, when she was attacked by inmate Marquise Perry. Plaintiff claims that Perry threatened her previously and that prison authorities were aware of this but failed to take appropriate action to prevent the attack. Plaintiffs husband, Stephen Gioiella, also a party-plaintiff in this action, asserts a claim for loss of consortium. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.

         {¶2} At trial, plaintiff testified that she began working for defendant on December 2, 2012. Plaintiff, who was 31 years old at the time of trial, stated that she had previously worked as a juvenile corrections officer and had a bachelor's degree in corrections. When she was hired by defendant, plaintiff stated, she attended defendant's Corrections Training Academy near Columbus for six weeks, followed by on-the-job training with several staff members at ToCI, and she also continued to receive periodic training thereafter. From her training, plaintiff stated, she knew that working in a prison could be dangerous, and defendant trained her to be cognizant of inmate threats.

         {¶3} Plaintiff recalled that beginning in March or April 2013, she was stationed in Housing Unit C West, working the first shift there, from 6:00 a.m. to 2:00 p.m. Plaintiff explained that the unit contained 24 cells on the first-floor range, known as C-1, and another 24 cells on the second-floor range, known as C-2. As plaintiff explained, the inmates in the unit were classified by defendant at security level 4A, meaning they were at security level 4 on a scale of 1 to 5 (lowest to highest), and the "A" designation pertained to their privilege level, such that 4A status afforded more privileges than 4B. By plaintiffs description, the inmates were typically allowed to be in the dayroom or common area of the unit for three hours a day, during which time they could shower, watch television and socialize, and they were also allowed out of their cells for one hour of recreation time a day, but they took their meals in their cells rather than the chow hall. Plaintiff also explained that the inmates from the first-floor and second-floor ranges had separate times to use the dayroom because they were not allowed to intermingle there.

         {¶4} From plaintiffs recollection, inmate Perry moved into the unit about two or three months after she began working there, occupying a cell on the second-floor range. It was plaintiffs testimony that she looked up information about every inmate in the unit to know more about their backgrounds, and from this it was her understanding that Perry was in prison for murder, involuntary manslaughter, felonious assault, and other offenses. Plaintiff also recalled that Perry was a gang member. According to plaintiff, she did not get along well with Perry, as Perry was arrogant and verbally abusive toward her on several occasions, and in the weeks leading up to the attack this behavior escalated. Plaintiff stated, though, that as far as she can remember she never filled out a Conduct Report against Perry to ticket him for violating any prison rules, nor reported any threat by Perry until November 21, 2013, the day before the attack.

         {¶5} Plaintiff testified that on that date Perry removed three packaged soups from another inmate's cell, and upon observing this she ordered Perry to return the soups. Plaintiff related that Perry argued with her but ultimately complied once she told him that she would issue him a Conduct Report for violating prison rules. As plaintiff explained, the rules prohibited Perry from taking items from another inmate and from entering another inmate's cell. According to plaintiff, there were 65 rules for inmates to abide by, and she had been trained to enforce them in a firm, fair, and consistent manner. Plaintiff stated that she had a reputation with the inmates in the unit such that they knew they could not get away with anything on her watch.

         {¶6} Plaintiff testified that after telling Perry that she would issue him a Conduct Report, he came down the stairs to the first-floor range, puffed his chest out in an aggressive fashion, gestured toward her and said "You know what time it's about to be?" Plaintiff testified that she was at her desk at the front of the unit, perhaps no more than 10 feet from Perry, and that she felt threatened and thought he might attack her at that moment. Plaintiff stated that another inmate pulled Perry away and told him something to the effect of "you don't want to do that." Plaintiff acknowledged that it is not uncommon for inmates to talk about or threaten officers, and that in this instance Perry did not specifically say he would harm her, but she stated that based upon his words and body language, she took it as a serious threat.

         {¶7} Plaintiff related that she proceeded to write both an Incident Report and a Conduct Report, the latter of which charged Perry with violating institutional rules 8 ("Threatening bodily harm to another (with or without a weapon)"), 21 ("Disobedience of a direct order"), 26 ("Disrespect to an officer, staff member, visitor or other inmate"), and 48 ("Stealing or embezzlement of property, obtaining property by fraud or receiving stolen, embezzled, or fraudulently obtained property"). (Plaintiffs' Exhibits 2, 9.)

         {¶8} In both reports, plaintiff gave essentially the same description of the incident, writing in the Conduct Report the following:

         {¶9} "ON 11/21/13 at approximately 1203 hours I, Officer Roggelin, did observe Inmate Perry #488417 enter cell C2W2 in which Inmate Rembert #181425 resides, Inmate Rembert at this time was at a Unity program, and exits the cell with 3 soups in his hand. I issued several direct orders that he return them to the cell and Inmate Perry refused. I informed Inmate Perry that he would be receiving a ticket to which he replied 'So do it.'. Inmate Perry did eventually return the contents to the cell. Inmate Perry did inform this officer that 'I know what time it's about to be…' or something to that effect. I, Officer Roggelin, took this to be a threatening statement. Inmate Rembert returned to the pod and informed this officer that Inmate Perry has a 'green light to go into my cell for anything at any time.' This does not negate the fact that Inmate Perry disobeyed a direct order and disrespected this officer. EOR."

         {¶10} Plaintiff stated that she checked a box on the Conduct Report indicating that she wished to have input into the disciplinary proceedings because she was concerned that what she had written might not adequately convey the seriousness of the situation. According to plaintiff, she felt that Perry needed to be moved out of the unit immediately, and it was her expectation that the reports she submitted would result in his removal. Plaintiff testified that a physical threat to an officer constituted grounds for removing an inmate from a housing unit, and that she felt Perry had made such a threat against her.

         {¶11} Plaintiff admitted that she had been trained to include all key details in Incident Reports and Conduct Reports, but that she omitted some details, including that Perry had to be turned away by another inmate. Plaintiff testified that Incident Reports were submitted to the ToCI shift office, and could be copied to others, and Conduct Reports were submitted to a sergeant who would serve as a hearing officer, Sergeant Marshal Klavinger in this case. Plaintiff explained that as the hearing officer, Klavinger had authority to impose punishment for rules infractions, including putting an inmate under cell isolation, but only after the hearing process played out and he issued his decision. Plaintiff stated that she understood Klavinger could recommend that an inmate be moved out of a housing unit, but she did not know whether he had authority to actually order such a move himself, whereas she knew that lieutenants and other supervisory staff did have such authority. Plaintiff also stated that she did not know how much time Klavinger had to make a decision on a Conduct Report.

         {¶12} According to plaintiff, in evaluating the Conduct Report Klavinger would have to use his discretion to decide whether the threat was credible, as opposed to the more common idle threats that she said inmates would commonly make against officers. Plaintiff testified that, in addition to submitting the Conduct Report to Klavinger, she also spoke with him that day, telling him about the incident and Perry's increasingly volatile behavior recently, and that she wanted him to be moved out of the unit, but she could not remember what Klavinger told her.

         {¶13} Plaintiff acknowledged that she had the ability to select another post at ToCI, enabling her to work somewhere other than this particular unit. In explaining why she sought for Perry to be moved rather than seeking another work station for herself, plaintiff testified that when a corrections officer would have a dispute with an inmate, if the officer, rather than the inmate, moved out of the unit afterward, the officer would be perceived by inmates as cowardly and lose respect with the inmates, and it is important for officers to maintain respect and credibility with the inmates.

         {¶14} Plaintiff testified that the next day, August 22, 2013, at 5:30 a.m. she reported for roll call, a time when all the officers getting ready to come on duty gather together and are briefed on recent events. According to plaintiff, roll call lasts about 30 minutes and is conducted by correctional lieutenants and captains, but she stated that they did not mention inmate Perry or the incident the day before, nor did she have any recollection of bringing that issue up herself.

         {¶15} At 6:00 a.m., plaintiff testified, she started her shift in the unit, and she was confused to find that Perry was still there. Plaintiff stated that she had a conversation with Corrections Officer Robert Wurzelbacher, who served that day as a support officer for the housing units in C block. Plaintiff related that the conversation concerned what they should do with respect to Perry, and that Wurzelbacher informed her that Klavinger had told him to keep an eye on her that morning. According to plaintiff, she and Wurzelbacher speculated that if Perry were to do something, the most likely time for it to occur would be the recreation movement, when all 48 inmates would be out of their cells and the environment was less controlled than the dayroom time when only 24 inmates were out of their cells at once. Plaintiff related that she and Wurzelbacher therefore devised a plan whereby she would temporarily go to the control room just before the recreation movement and Wurzelbacher would relieve her, taking her place in the unit until the inmates had been moved out. Plaintiff stated that they did not make any plan, however, for Wurzelbacher to accompany or relieve her while she made her normal rounds through the unit every 20 to 25 minutes.

         {¶16} Plaintiff testified that the dayroom time for inmates on the second-floor range began at 7:30 a.m., so at that time she went upstairs and unlocked the doors to those inmates' cells, including Perry's. According to plaintiff, she did not have the authority to leave Perry locked in his cell and deny him access to dayroom time. Plaintiff acknowledged, though, that she could have contacted a lieutenant that morning to follow up and ask about having Perry removed from the unit, as lieutenants had authority to move inmates immediately. Plaintiff testified that she was under the supervision of and ...


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