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Patton v. Department of Rehabilitation and Correction

Court of Claims of Ohio

July 20, 2017


          Sent to SC. Reporter 9/8/17



         {¶1} Plaintiff is an inmate in the custody and control of defendant. Plaintiff brought this action claiming that an employee of defendant at the Warren Correctional Institution (WCI), Corrections Officer James Burrows, committed an assault "by applying mace to Plaintiffs face when there was no provocation or justification." Plaintiff also claims that Burrows "was not properly trained" by defendant. The case proceeded to trial before the undersigned magistrate.

         {¶2} Plaintiff testified at trial that on the evening of February 20, 2016, a fire alarm sounded in his housing unit, resulting in all inmates being escorted outdoors. Plaintiff related that about 15 minutes later, Corrections Officers James Burrows and Ari Combs escorted the inmates back into the unit. Plaintiff stated that when he re-entered the unit he saw that the window of his cell was covered up from the inside, which signified that his cellmate was using the toilet. According to plaintiff, Combs consequently told him he could wait a few minutes before returning to his cell.

         {¶3} Plaintiff recounted that he sat down at a table and joined a card game, but that Combs came back earlier than previously indicated and told him to return to his cell. Plaintiff testified that rather than following Combs' directive, he told Combs to first let him go to the JPay machine, through which inmates can send and receive email, and check his messages before going back to the cell. Plaintiff related that he then walked into the room where the JPay machine was located and tried to log in, but Combs and Burrows followed him and Combs grabbed his shoulder. By plaintiffs account, he told Combs that he did not have to grab him, and at that time Burrows administered pepper spray toward his eyes. According to plaintiff, he felt a sense of shock when the spray came into contact with his eyes, and if the officers ordered him to get on the floor, he did not comprehend that instruction. Plaintiff testified that he nevertheless got on the floor and was put in handcuffs before being escorted out of the unit.

         {¶4} Corrections Officer Combs testified that he has been employed with defendant at WCI since July 2015. On the date of the incident, Combs stated, he served as a relief officer, filling in at different posts around the compound when the regularly-assigned officers had a day off. Combs explained that inmates were assigned to cells on either the upper range or the lower range of the unit, and the two ranges had separate hours designated as dayroom time, when the inmates could be outside their cells. According to Combs, he observed plaintiff in the dayroom during the time set aside for upper range inmates, but plaintiffs cell was on the lower range, meaning that plaintiff was considered "out of place" under institutional rules. Combs, who stated that he had no recollection of the fire alarm going off nor any recollection about plaintiffs cellmate covering the window to the cell, testified that he told plaintiff multiple times to "lock down, " or return to his cell. Plaintiff failed to comply, Combs stated, so he requested assistance from his partner, Burrows, who was seated at the officers' desk.

         {¶5} Combs testified that when Burrows came over, plaintiff was given additional directives to return to his cell but did not comply and instead walked into the JPay room. Combs, who stated that he had not given plaintiff any sort of permission to use the JPay machine that evening, testified that he followed plaintiff and ordered him again to return to his cell, and when plaintiff still refused he attempted to put plaintiff in the "escort position." Plaintiff pulled away from him, however, and took a combative stance, Combs stated. Combs testified that he had on his person a canister of OC (oleoresin capsicum) spray issued by defendant, and, out of concern for the safety of himself and his partner, he reached for the spray at this point but did not use it, as Burrows dispersed his own spray and they proceeded to subdue plaintiff.

         {¶6} Combs testified that he subsequently prepared an Incident Report in which he documented what had occurred, and also a Conduct Report in which he charged plaintiff with violating institutional rules 20 ("Physical resistance to a direct order"), 21 ("Disobedience of a direct order"), and 35 ("Being out of place"). (Defendant's Exhibits A, C.)

         {¶7} Corrections Officer Burrows testified that he has been employed with defendant at WCI since July 2015. Like Combs, Burrows testified that he was a relief officer when the incident occurred and served at different posts around the compound. Burrows stated that he was thus not familiar with all the inmates who lived in this housing unit, which has a capacity of 128, and he may not have realized plaintiff was out of place if Combs had not brought it to his attention. Burrows recounted that he was at the officers' desk when Combs came to him and asked for assistance, explaining that plaintiff was out of place and would not return to his cell.

         {¶8} According to Burrows, he got up from the desk and observed plaintiff standing near the doorway to the JPay room, refusing Combs' directives to return to his cell. Burrows stated that he walked over and gave plaintiff additional directives to return to his cell, but that plaintiff ignored him and entered the JPay room. Burrows recalled that he and Combs followed plaintiff into the JPay room and Combs started to put plaintiff into an escort position, but plaintiff turned away and made fists with both hands. Burrows testified that upon observing this he perceived it as an immediate threat of harm, more so a threat to Combs than himself, as he was standing behind Combs. Burrows stated that he and Combs both reached for their OC spray, but that he drew his first and immediately administered it upon plaintiff.

         {¶9} Burrows acknowledged on cross-examination that he and other officers have been known on occasion to extend the courtesy of allowing an inmate to temporarily leave a cell while his cellmate uses the toilet, even though the inmate would technically be out of place, but Burrows stated that he does not recall plaintiff saying anything throughout this incident about his cellmate using the toilet or otherwise explaining why he was out of his cell.

         {¶10} Burrows testified that he documented what occurred in an Incident Report, which he said is standard practice when there has been a use of force or any other unusual event. (Defendant's Exhibit B.) Burrows also explained that it is standard practice at WCI for every reported use of force to undergo a review by a Use of Force Committee, and upon cross-examination he authenticated a statement that he gave to the Use of Force Committee which reviewed this incident. (Plaintiffs Exhibit 1.)

         {¶11} As stated earlier, plaintiff claims that the use of OC spray upon him constituted assault. "To prove assault under Ohio law, plaintiff must show that the defendant willfully threatened or attempted to harm or touch the plaintiff offensively in a manner that reasonably placed the plaintiff in fear of the contact." Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-12, 2012-Ohio-3382, ¶ 11.

         {¶12} It has also been held that "[a]llegations of use of unnecessary or excessive force against an inmate may state claims for battery and/or negligence." 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. * * * Ohio courts have held that, in a civil action for assault and battery, the defendant has the burden of proving a defense of justification, such as the exercise of lawful authority." Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-12, 2012-Ohio-3382, ...

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