[Cite as Gilmore v. Ohio Dept. of Rehab. & Corr. , 2022
- Ohio
- 3652.]

{¶1} O n August 1, 2022, Defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion for summary judgment is now before the Court for a non

- oral hearing pursu ant to Civ.R. 56 and L.C.C.R. 4(D). For the reasons that fo llow, Defendant ’ s unopposed motion for summary judgment is GRAN TED

. {¶2} Civ.R. 56(C) state s, in part, as follows: Summary judgment sh all be rendered forthwith if the plea dings, depositions, answers to interrogatories, written admissions, af f idavit s, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, s how that there is no genuine iss ue as to an y m aterial fact and that the moving p arty is entitled to judgment as a matter of law. No evidence or stipu l ation may be considered except as stated in this rule. A summary judgment shall n ot be rendered unless i t appears from the evidence or
s tipulation, an d only from the evidence or stipul ation, that reasonable minds can come to but one conclusion and that c o nclusi on is adverse to the party against whom the motion for summary judgment is m ade, that party being
e ntitled to have the evidence or stipulation co nstrued most strongly in the party ’s favor. See also Gilbert v. Summit Cty. , 104 Ohio St.3d 660, 2004

- Oh i o - 7108 , 821 N.E.2d 564, ¶ 6, citing Temple v. Wean United, Inc. , 50 Ohio St.2d 317 , 364 N.E.2d 267 (1977)

. “[T]he EMMANUEL GILMORE
Plaintiff

v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant Case No. 2021

- 00515JD Judge Patrick E. Sheeran Magistrate Gary Peterson ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENTCa se No

. 2021

- 00515JD

- 2

- ENTRY

moving party b ears t he ini tial responsibility of informing the t rial court of the basis for the motion , and i dentifying those portions of the record before the trial court which demonstrate t he absence of a genuine is sue of material fact on a ma terial element of the
non moving party ’s claim.” Dresher v. Burt , 75 Ohio S t.3d 280, 292 , 662 N.E.2d 264 (1996)

. T o mee t this initial burden, the movin g party must be able to point to evidentiary mater ials of the type listed in Civ.R. 56(C). Id . at 2 92

- 2 93

. {¶3} According to the c omplain t, at all times relevant , P laintiff was an inmate in the custody and control of D e fe ndant

. Although not a beacon of clari t y , i t appears that P laintiff brings this claim arising out of an alleged excessive use of force that occurred on or about April 29, 2021. The complaint provides that Plaintiff was taken to the groun d, placed in hand restraints, r ep eatedly assaulted, repe a tedly punched in the face, sprayed with OC (chemical ) spray , and his head was slamme d in to the wall

. Plaintiff seeks an unspecified amount in damages

. {¶4} “A llegations of use of unnecessary or excessive force against an inmate may state claims for battery an d /or negligence .” Brown v. Dept . of R ehab. & Corr. , 10th Dis t. Franklin No. 13AP

- 804, 2014

- Ohio

- 1810 , ¶ 13. “ To prove battery, the plaintif f must prove that the intentional contact by the defendant was harmful or offensive. * * * Ohio courts have held th a t, in a civil action for assaul t and battery, the defendant has the burden of proving a defense of j ustification, such as the e xercise of la wful authority.” 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 priv ilege or justification de fense. ” Brown at ¶ 13. “ However , ‘ the us e of excessiv e force by one privileged to use force on another may constitute battery.’” Russell v. Ohio Dept. of Rehab. & Corr

. , 10th Dist. Franklin No. 19AP

- 424, 2 019

- Ohio

- 4695, ¶ 11, qu oting Shadler v. Double D . Ventures, Inc

. , 6th Dist. Lucas No. L

- 03

- 1278, 2004

- O hio

- 4802, ¶ 19. {¶5} “ T o prevail on a negligence claim, a plaintiff must establish the existence of a duty, a breach of t he du ty, and an injury resultin g prox imately therefrom. ” Wo odbridge v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 19AP

- 321 , 20 20

- Ohio

- 891 , ¶ 30

.Ca se No

. 2021

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- ENTRY

“Ohio law imposes a duty of reasonable care upon the state to provide for its prisoners’ health, c ar e, and well

- being.” Ensman v . Ohio Dept. of Rehab. & Corr

. , 10th Dist. Franklin No . 06AP

- 592, 2006

- Ohio

- 6788, ¶ 5. {¶6} “ The use of force is sometimes necessary to control inmates.” Jodrey v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 12AP

- 477, 2 0 13

- Ohio

- 289, ¶ 17.

“ Correc ti onal o fficers considering the use of force must evalua te 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 preci se degree of force required to
r espond to a given situation r equires an exercise of di scretion 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 of fi c ers are authorized to use f or ce aga inst an inmate.” Id. a t ¶ 6. Ohio Adm.Code 5120

- 9

- 01 provides, in part: (C) Guidelines re garding the u se of force. * * * * * * (2) Less

- than

- deadly force. There are six general circumstances in which a staff member m ay use force again st an inmate o r thir d person. A staff memb er may use less

- than

- dead ly force against an inmate in the following circumstanc es: (a) Self

- defense from physical at tack or threat of physical harm. (b) Defense of another from physic al atta ck o r threat of phys ical attack. (c) When necessary to control or subdue an inmate who ref uses to obey pris on rules, regulations or orders. (d) W hen necessary to stop an inmate from destroying property or engaging in a riot or other disturbance. (e) Prevention o f an escape or apprehension of an es capee; or (f) Controlli ng or subduing an inmate in order to stop or prevent self

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{¶7} “ Pursu ant to Ohio Adm.Code 5120

- 9

- 01(C )(1)(a), correctional officers ‘ may use force only to the extent de emed necessary t o control t h e situation.’ ” Brow n at ¶ 16.

“ Additionally, co rrectional officers ‘ shou ld attempt to use only the amount of force reasonably n ecessary under the circumstances to control the situation and shall attem pt to minimize physical in jury.’ ” Id. , qu ot ing Ohio Adm.Code 5120

- 9

- 01(C) (1)(b)

. “‘Excessive force’ m eans ‘ an application of f orce which, either by the type of force employed, or th e extent to which such force is employed, exceeds that force which reasonably appears to be necessa ry under all the c ircumst an ces surrounding the i nciden t.’” Russell

, 2019

- Ohi o - 4695, at ¶ 14, quoting Ohio Adm.Code 5120

- 9

- 01(B)(3). {¶8} In support of its motion for summary judgment, D efendant submitted an affidavit from c orrection s officer Kent Wallace

. Wallace avers as fo ll ows :

“ 5. On April 29, 2021, I was working as a corrections officer at the Toledo Corr ectional Institution

.

“ 6. At about 1:50 p m that day, I was working with Corrections Officer Tipt on and attempting to move [ P laintiff] to a new cell.

“ 7. [Plaintiff] wa s u p set about moving to a new cell, he became ag gressive, and he began closing the dist ance between Officer Tipton and him.

“ 8. I told [ P laintiff] to grab his property a nd move to his new cell.

“ 9. [Plaintiff] i gnored me and con tinued to close the distance b et ween Officer Tipton and him.

“ 10. Officer Tipton told [ P laintiff] to stop , and I to ld [ P laintiff] to place his hands o n th e wall. [Plaintiff ] ignored these requests

.

“ 11. [Plaintiff ] closed the distance between h e and Officer Tipton and began throwing cl os ed fist strikes at Officer Tipton ’ s facial area.

“ 12. [Plaintiff] continued to diso be y all directives to stop, and he continued his assault on Officer Tipton while physically re sisting my attempts to stop his assault on Officer Tipton

.Ca se No

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“ 1 3. I took [ P la in ti ff] to the ground while he yelled, ‘ I ’ m going to fucking kill you bitch ! ’

“ 14. As [ P laintiff] continued to yell that he was going to ‘ fuck us up ’ and kill us, I continued to tell him to stop resisting and to cuff up.

“ 15. I feared that if I did not sub du e [ P laintiff], he would cause serious physical ha rm to Officer Tipton or me.

“ 1 6. I c o ntinued giving directives for [ P laintiff] to stop resisting and place his hands behind his back while he continued yelling threats

.

“ 17 I delivered close d fist strikes to [ Plaintiff’s ] face and body in an attempt to subdue him, and once additional staff a rrived to assist, I was able to secure [ P laintiff ] in hand restraints

.

“ 1 8. A s a result of [ P laintiff ’ s] assault, two officers received outside medical treatment

.

“ 19. N ei th er Officer Tipton nor I used any excessive force in our interaction with [ P laintiff ], nor did I witness any excessive force used by any other DRC staff.

“ 20. I used the mi nimum amount of force reasonably required to gain compliance of [ P laintiff] and t o en sure my own safety and that of Officer Tipton

. The force use d was consi stent with D RC policy

. ” Defendant ’ s motion for summary judgment, Exhibit A. {¶9} Defendant also filed Wallace ’ s use of force report and a copy of D efendant ’ s policy on the use of force

. {¶10} As state d pr evio usly, Plaintiff did not respo nd to Defendant ’ s motion for
s u mmary judg ment

. Civ.R. 56 ( E) provide , in relevant part : When a motion for summary judgmen t is made and supported as provided in this rule, an adverse party may not rest upon th e me re allegations or denials of the party's pleadings, but the party ’ s response, by affi da vit or as otherwise provided in this rule, mu st set forth specific facts showi ng that there is a genuine issue for trial. If the party does not so respond, summary j ud gm ent , if appropriate, shall be entered against the party.Ca se No

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{¶11} B ased u pon the unco ntroverte d affidavit testimony from Wa llace , the C ourt concludes that the force used on P laintiff on April 29, 2021, was justified and reasonable

. There is no dispute that Pla in ti ff refused to c omply with orders to stop app roaching the officers. There is also no di spute that Plaintiff struck Tipt on in the face with a closed fist and continued to strike Tipton d espite orders to cease. Even when Wallace took Plaintiff to the g r ou nd , Plaintiff co ntinued to threaten and resist the officers. The officers are privileged t o use force for self

- defense from a physical attack and for defense of another from physical attack. T he officers are also privileged to use force when necessary to
c ontrol or subdue an inmate who refuses to ob ey prison rules, regulations, or or ders

. Here, the officer s ’ actions were necessary to control and restrain Plaintiff, who had attacked Tipton and re fused to obey orders. The officers used the least amount of f orce necessary to ensure their safety and the force use d was therefore p rivileged

. {¶12} Base d upo n the foregoing , the C ourt conclud es that there are no genuine issu es of material fact and that D efendan t is entitled to judgment as a matte r o f law

. As
a resu lt , D efend ant’s motion for summary judgme nt is GRANTED and judgment is hereby rendered in f avor of D efendant. Al l previously sche duled events are VACATED. Court costs are asse ssed against P laintiff. The clerk shall serve upon all par tie s notice o f this ju dg ment a nd its date of entry upon the j ournal.

PATRICK E. SHEERAN Judge

Filed September 2 6 , 2022 Sent to S.C. Reporter 10 / 13 /22