Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fhiaras v. Ohio Department of Rehabilitation And Correction

Court of Claims of Ohio

July 24, 2019

GEORGE FHIARAS Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

          Sent to S.C. Reporter 7/24/19

          DECISION OF THE MAGISTRATE

          ANDERSON M. RENICK, MAGISTRATE

         {¶1} Plaintiff brought this action alleging that an employee of defendant used excessive force upon him. Plaintiff also alleges negligence related to the loss of his property. The case came to trial on the issues of liability and damages.

         {¶2} As an initial matter, the court notes that during the trial, plaintiff announced that he wanted to voluntarily dismiss his case. Civ.R. 41(A)(1)(a) provides, in relevant part, that a plaintiff, "without order of court, may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial * * *." The Ohio Supreme Court has determined that "'a civil trial commences when the jury is empaneled and sworn, or, in a bench trial, at opening statements.'" Schwering v. TRW Vehicle Safety Sys., 132 Ohio St.3d 129, 2012-Ohio-1481, ¶ 16, quoting Frazee v. Ellis Bros. Inc., 113 Ohio App.3d 828, 831 (5th Dist.1996). Furthermore, Ohio courts have observed that "under this rule, 'commencement of the trial * * * takes place when the case is called by the court and counsel indicates that they are ready to proceed.'" Kracht v. Kracht, 8th Dist. Cuyahoga Nos. 70005 and 70089, 1997 Ohio App. LEXIS 2412, 17 (June 5, 1997), quoting McCormac, Ohio Civil Rules Practice, Section 13.03, at 352, (2d Ed.1992). Although plaintiff argued that he had informed opposing counsel that he had intended to dismiss his case before the trial began, the court informed plaintiff that he could not use a notice of voluntary dismissal to terminate the action because trial had commenced.

         {¶3} At all times relevant, plaintiff was an inmate in the custody and control of defendant at the Warren Correctional Institution (WCI). Plaintiff testified that on September 14, 2017, he walked into his cell and, without warning, he was assaulted by a corrections officer (CO).

         {¶4} "Allegations of use of unnecessary or excessive force against an inmate may state claims for battery and/or negligence. To prove a claim for battery, a plaintiff must demonstrate that the defendant 'act[ed] intending to cause a harmful or offensive contact, and * * * a harmful contact result[ed].'" Brown v. Dept. of Rehab. & Corr ., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13, quoting Love v. Port Clinton, 37 Ohio St.3d 98, 99 (1988). In a civil action for battery, defendant has the burden of proving a defense of justification, such as the exercise of lawful authority. Id. Furthermore, the state owes a duty of reasonable care to provide for its prisoners' health, care, and well-being. Id. at ¶ 14.

Ohio Adm.Code 5120-9-01 provides, in pertinent part:
"(C) Guidelines regarding the use of force. * * *
"* * *
"(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:
"(a) Self-defense from physical attack or threat of physical harm;
"(b) Defense of another from physical attack or threat of physical attack;
"(c) When necessary to control or subdue an inmate who refuses to obey prison rules, regulations or orders;
"(d) When necessary to stop an inmate from destroying property or engaging in a riot or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.