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McDougald v. Ohio Department of Rehabilitation and Correction

Court of Appeals of Ohio, Tenth District

October 31, 2017

Jerone McDougald, Plaintiff-Appellant,
Ohio Department of Rehabilitation and Correction, Defendant-Appellee.

         APPEAL from the Court of Claims of Ohio (Ct. of Cl. No. 2016-00376)

         On brief:

          Jerone McDougald, pro se.

          Michael DeWine, Attorney General, and Jeanna A. Jacobus, for appellee.


          SADLER, J.

         {¶ 1} Plaintiff-appellant, Jerone McDougald, appeals from the judgment entry of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction. For the following reasons, we affirm the decision of the Court of Claims.


         {¶ 2} In May 2016, appellant filed a complaint in the Court of Claims against appellee. Appellant alleged that on September 15, 2015, while he was incarcerated at Southern Ohio Correctional Center, Corrections Officer Ryan Andre used excessive force on him. Appellant specifically alleged that Andre, while escorting him through a crossover corridor from "J-2 slammerside" to "suicide watch, " pushed him from behind to a "crashgate, " pressed his body up against appellant, made sexually inappropriate comments, and then pushed him into the corner of a door and into the strip cage. (Compl. at 1-2.) Appellant additionally alleged that Andre falsified reports related to the incident. Appellant listed "evidence DVR footage" as witness to the injury and sought $200, 000 for the claim. (Compl. at 2.) Appellant amended the complaint in August of that year to allege fraud against Andre, a deputy warden, the assistant chief inspector, the institutional inspector, and to allege medical negligence/malpractice and fraud against Nurse Larissa MacDonald regarding her evaluation of him after the incident.

         {¶ 3} Appellee's answer denied the accusations and asserted that the corrections officer's use of force and escort technique was justified due to appellant's refusal to comply with direct orders to walk to the strip cage and asserted defenses of failure to state a claim, lack of jurisdiction, privilege, lack of damages, and contributory negligence as a bar to recovery.

         {¶ 4} On August 25, 2016, appellant filed a motion for an order to compel discovery along with copies of his request for production of documents and his first set of interrogatories. On August 30, 2016, appellant signed a statement that he was given the opportunity to review a copy of a DVR for the incident in question. On September 2, 2016, appellant filed a motion to amend his motion to compel, asserting that he viewed institutional video footage but the camera footage was tampered with, and the whole attack in the crossover section, an area appellant asserts clearly has a camera, was erased or omitted. Appellant requested sanctions pursuant to Civ.R. 37.

         {¶ 5} After initially granting appellant's motions to supplement and compel discovery, the magistrate granted appellee's Civ.R. 60(B) motion for relief from that order due to a lack of proper service and because appellee averred to responding to discovery requests. Appellant filed objections to the magistrate's Civ.R. 60(B) decision, which the Court of Claims denied.

         {¶ 6} On December 1, 2016, appellant filed an additional motion for an order compelling discovery asking for video of the "entire incident" inside the crossover and for footage of a cell that related to his claim regarding the nurse's medical examination. (Mot. for Order Compelling Disc. at 1.) Appellee filed a memorandum contra asserting appellant's motion to compel should be denied. Specific to the video footage, appellee asserted that it "only has a portion of the [J-2 crossover] video and it provided [appellant] an opportunity to view what it had. The video shows [appellant] before going into the J-2 crossover and coming out of the J-2 crossover, before and after the alleged incident that is the subject of this lawsuit. * * * [Appellee] believes that it was never recorded due to the camera malfunctioning or not working at that time." (Dec. 13, 2016 Memo. Contra at 2.) Regarding the footage of the cell later in the evening, appellee asserted that the footage from that camera "was never downloaded and saved because [appellee] was not on notice of any alleged incident in that area at that time." (Memo. Contra at 2.) Thus, "[e]ven if the Court were to compel the videos, there is nothing to produce. [Appellee] simply does not have the videos." (Memo. Contra at 3.)

         {¶ 7} On January 11, 2017, appellee filed a motion for summary judgment asserting that Andre's escort technique was justified, Andre made no sexual comments or contact with appellant, no evidence otherwise exists regarding an assault, battery, or falsified records, and that MacDonald did not create a false examination report. Appellee supported its motion for summary judgment with affidavits from Andre, Jeremy Oppy, a unit manager who averred to witnessing Andre escort appellant, and MacDonald, who averred she attempted to provide a medical examination but appellant stated he was okay and refused examination. A conduct report, incident report, inmate use of force statement, and MacDonald's medical examination report were attached in support of the affidavits.

         {¶ 8} On January 13, 2017, the court filed a notice of a non-oral hearing on the motion for summary judgment to occur on February 8, 2017. On January 23, 2017, appellant filed a motion to stay the proceedings pending resolution of the motion to compel discovery and a motion for a 30-day continuance to reply to the motion for summary judgment. As reasons for the continuance, appellant cited the ...

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