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Culbreth v. Ohio Department of Rehabilitation and Correction

Court of Claims of Ohio

July 19, 2017

HARVEY T. CULBRETH Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

          Sent to S.C. Reporter 9/8/17

          DECISION

          GARY PETERSON, MAGISTRATE

         {¶1} Plaintiff, an inmate in the custody and control of defendant at the Madison Correctional Institution, brought this action alleging that on February 9, 2016, while incarcerated at the Southern Ohio Correctional Facility (SOCF), corrections officers inflicted injuries upon him through the excessive use of force. 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 on February 9, 2016, he was housed in a segregation unit known as J2. Plaintiff stated that the unit was "loud" and that he was also contributing to the noisy atmosphere in the unit. Plaintiff testified that a captain thereafter escorted him to a different holding location. After he arrived, plaintiff told corrections officers that he wanted his personal property and that if he did not receive it, he would intentionally harm himself. Plaintiff reported that corrections officers brought him his personal property but that he was missing several items; plaintiff responded by cutting himself.

         {¶3} Plaintiff testified that he was subsequently escorted to the infirmary. Plaintiff added that whenever a segregation unit inmate is escorted to the infirmary, the corrections officers place handcuffs and leg irons on the inmate and that such restraints were placed on him at this occasion. Plaintiff testified that after arriving at the infirmary, a nurse inquired about his injury and left to obtain his medical file. Plaintiff testified that Lieutenant Joseph Kaut thereafter removed his glasses and hit him in the back of the head with a nightstick. According to plaintiff, Kaut also made racist and derogatory comments and threatened to end plaintiffs life. Plaintiff reported that another corrections officer who was also present held plaintiffs leg irons while Kaut punched plaintiff multiple times. Plaintiff stated that at some point during the altercation, he told Kaut that he was going to make Kaut kill him. Plaintiff testified that the nurse entered the infirmary and began cleaning plaintiffs wound while Kaut forcibly held plaintiff by the back of the neck. According to plaintiff, the nurse also made racial comments and spoke derogatorily toward plaintiff. Plaintiff admitted stating to the nurse to "get out of my face because your breath stinks." Plaintiff asserted that Kaut subsequently placed a spit sock, which is a mesh covering that prevents an inmate from spitting on staff, over his head after which plaintiff was escorted to a holding cell. At some point thereafter, plaintiff filed a grievance regarding the incident. (Exhibit A).

         {¶4} Kaut testified that he began working at SOCF 19 years ago and that in 2007 he was promoted to the rank of lieutenant. Kaut related that on February 9, 2016, he received a call informing him that plaintiff had cut himself. Kaut testified that he went to plaintiffs cell and put handcuffs and leg irons on plaintiff and then took him to the infirmary. According to Kaut, nurse Brandon Lindamood asked plaintiff what happened at which point plaintiff began using profanity. Kaut reports that Lindamood observed plaintiffs arm and stepped out of the room. Kaut testified that he instructed plaintiff to cease acting disrespectfully at which point plaintiff began acting belligerently. According to Kaut, at some point plaintiff made allegations that he was going to spit on someone and lunged up out of the chair where he had been sitting. Kaut testified that he responded by placing a spit sock over plaintiffs head. A photo of a spit sock was admitted as an exhibit. (Exhibit B). Kaut stated that after the nurse completed treatment, plaintiff was returned to J2 where he was placed on suicide watch. Kaut denied striking plaintiff with his hands or fists and denied using racially offensive language. Kaut added that he did not see anyone step on plaintiffs leg irons and did not see anyone hit plaintiff. Kaut subsequently completed an incident report (Exhibit C) and a conduct report. (Exhibit D).

         {¶5} Lee Burchett testified that he has worked as a corrections officer at SOCF for the previous 17 years. Using an incident report (Exhibit E) that he wrote regarding the February 9, 2016 incident to refresh his recollection of the events, Burchett testified that he received a call on that date that plaintiff had cut his arm. Burchett stated that he proceeded to plaintiffs cell, placed handcuffs and leg irons on plaintiff as per policy, and with Kaut's assistance escorted plaintiff to the infirmary. Burchett recalled that plaintiff threatened to spit on Kaut which resulted in the placement of a spit sock over plaintiffs head. Burchett testified that plaintiff used offensive language while speaking to Kaut and the nurse providing treatment. In the incident report that Burchett wrote, he details events that are consistent with those described by Kaut; Burchett wrote that plaintiff lunged at Kaut and that they responded by placing a spit sock on plaintiffs head. Burchett denied striking plaintiff with a nightstick and denied seeing Kaut strike plaintiff.

         {¶6} Brandon Lindamood testified that he is a registered nurse and that he has been employed at SOCF for the previous 17 years. Lindamood recalled that he treated plaintiff for a flesh wound to his arm and that for some reason plaintiff, at least initially, did not want medical attention and was angry. According to Lindamood, plaintiff was disrespectful and used vulgar language. After Lindamood treated plaintiffs injury, he completed an incident report. (Exhibit F). Lindamood added that he did not see any injuries to plaintiff consistent with being hit by a nightstick or struck with fists. Lindamood denied seeing anyone strike plaintiff and denied hearing anyone use racially offensive language directed at plaintiff.[1]

         {¶7} Plaintiffs complaint lists several claimed causes of action including "cruel and unusual punishment 10th/Amendment and violation of my Eighth Amendment * * * pain and suffering caused by; Intentional infliction * * * Emotional/distress." (Plaintiffs complaint ¶ 12). As an initial matter, the court lacks jurisdiction of alleged constitutional violations. Thompson v. S. State Community College, 10th Dist. Franklin No. 89AP-114, 1989 Ohio App. LEXIS 2338 (June 15, 1989); Burkey v. S. Ohio Corr. Facility, 38 Ohio App.3d 170 (10th Dist.1988). While plaintiff does not identify his cause of action as one for unnecessary use of force, the magistrate construes plaintiffs complaint to allege such a claim.

         {¶8} Turning to plaintiffs claim of excessive use of force, "[t]o recover on a negligence claim, a plaintiff must prove by a preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a defendant breached that duty, and (3) that the breach of the duty proximately caused a plaintiffs injury." Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP-357, 2006-Ohio-2531, ¶ 10. "Ohio law imposes a duty of reasonable care upon the state to provide for its prisoners' health, care, and well-being." Ensman v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 06AP-592, 2006-Ohio-6788, ¶ 5.

         {¶9} In addition to stating a claim for negligence, allegations of unnecessary or excessive force being used against an inmate may state a claim for battery. Brown v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13. "To prove battery, the plaintiff must prove that the intentional contact by the defendant was harmful or offensive." Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-12, 2012-Ohio-3382, ¶ 11. "A defendant may defeat a battery claim by establishing a privilege or justification defense." Brown at ¶ 13, citing Love v. Port Clinton, 37 Ohio St.3d 98, 99 (1988).

         {¶10} "The use of force is sometimes necessary to control inmates." Jodrey v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-477, 2013-Ohio-289, ¶ 17. "Correctional officers considering the use of force must evaluate the need to use force based on the circumstances as known and perceived at the time it is considered." Brown at ¶ 15, citing Ohio Adm.Code 5120-9-01(C). "[T]he precise degree of force required to respond to a given situation requires an exercise of discretion by the corrections officer." Ensman at ¶ 23. "In Ohio Adm.Code 5120-9-01, the Ohio Administrative Code sets forth the circumstances under which correctional officers are authorized to use force against an inmate." Id. at ¶ 6.

         {¶11} Ohio Adm.Code 5120-9-01 provides, in pertinent part:

         {¶12} "(C) Guidelines regarding the ...


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