[Cite as Collier v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-4304.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

ANDRE COLLIER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2009-05978 

Judge Clark B. Weaver Sr. 

Magistrate Matthew C. Rambo 

MAGISTRATE DECISION

{¶ 1} Plaintiff brought this action alleging negligent training and supervision.1 

The issues of liability and damages were bifurcated and the case proceeded to trial on 

the issue of liability. 

{¶ 2} As an initial matter, on June 30, 2010, defendant filed motions to quash 

the subpoenas issued for Unit Sergeant Werner, Alice Cain, Corrections Lieutenant 

Iceman, D.A. Coble, Tim Milligan, Corrections Officer (CO) Tracy Cutright, Kelly Riehle, 

C. Sayers, Corrections Lieutenant Dunn, CO Kinder, CO Rahman, unnamed healthcare 

administrator, and unnamed state highway patrol trooper. The motions concerning Cain 

and Iceman are DENIED as moot, inasmuch as they appeared for trial. The motion 

concerning Werner is GRANTED pursuant to Civ.R. 45(C)(3(d). Defendant argues 

that the proper witness and mileage fees were not tendered upon service of the 

remaining subpoenas. The court notes that improper or failure of service is not a basis 

 1

Plaintiff’s assault claim, medical claim, and constitutional claims were dismissed by the court on 

June 30, 2010. 
Case No. 2009-05978 - 2 - MAGISTRATE DECISION

for quashing a subpoena pursuant to Civ.R. 45(C)(3). Accordingly, defendant’s 

remaining motions are DENIED. However, inasmuch as plaintiff did not provide the 

appropriate witness fees, the court finds that the subpoenas were not properly served 

pursuant to Civ.R. 45(B), and are therefore not enforceable. 

{¶ 3} At all times relevant, plaintiff was an inmate in the custody and control of 

defendant at the Marion Correctional Institution (MCI) pursuant to R.C. 5120.16. On 

March 31, 2008, plaintiff was transported to the Corrections Medical Center for 

treatment for hemorrhoids. After treatment, plaintiff was placed in handcuffs and leg 

irons and put into “holding area 2A” with several other inmates to await transport back to 

MCI. Plaintiff testified that he asked the CO posted to the area to remove his handcuffs 

so that he could use the restroom and that the CO granted his request. According to 

plaintiff, when he returned from the restroom, the CO was eating and plaintiff sat down 

to watch television while the CO finished his repast. Several minutes later, Tracy 

Cutright, a CO from the Belmont Correctional Institution, entered the area and called for 

inmate Taylor; however, no one responded and Cutright left the area. 

{¶ 4} Plaintiff testified that after Cutright left, he observed inmate Taylor 

sleeping. A short period of time later, Cutright returned and again called Taylor’s name. 

According to plaintiff, Taylor awoke and slowly responded to Cutright’s summons. 

Plaintiff testified that Cutright berated Taylor for not answering him the first time and for 

being slow. Plaintiff stated that he interjected that Cutright should “go easy” on Taylor 

because he has a “sleeping disease.” According to plaintiff, this made Cutright angry 

and, as a result, Cutright removed both plaintiff and Taylor from the area and took them 

into a locked room. Plaintiff testified that Cutright ordered him to face the wall and then 

threatened to beat him. Plaintiff stated that he told Cutright that he “wasn’t going to fight 

him,” at which point Cutright grabbed his right ear and twisted it, then he and Cutright 

exchanged more “words.” Plaintiff testified that the exchange escalated to the point 

where Cutright placed his right arm in an “arm bar,” slammed him to the floor, and 
Case No. 2009-05978 - 3 - MAGISTRATE DECISION

stepped on his right hand. According to plaintiff, another CO entered the room and 

removed Taylor, while Cutright placed plaintiff in handcuffs. Plaintiff stated that he and 

Cutright then had another verbal exchange when Cutright ordered him to stand up, 

which was difficult due to the handcuffs and leg irons. Plaintiff stated that at that point, 

four other COs entered the room and took him to an isolation cell. 

{¶ 5} Plaintiff testified that although he obtained a conduct report during 

discovery regarding the incident that appears to be signed by Cutright, he did not 

receive a copy of it after the incident and was not disciplined for the incident. (Plaintiff’s 

Exhibit 4.) Corrections Lieutenant Thomas Iceman testified that the conduct report 

referenced by plaintiff does not appear as if it was ever processed and that no “charges” 

were filed in connection with it. 

{¶ 6} In order for plaintiff to prevail on a claim for negligent training and 

supervision, he must prove: 1) the existence of an employment relationship; 2) the 

employee’s incompetence; 3) the employer’s actual or constructive knowledge of such 

incompetence; 4) the employee’s act or omission causing plaintiff’s injuries; and 5) the 

employer’s negligence in hiring or retaining the employee as the proximate cause of 

plaintiff’s injuries. Evans v. Ohio State Univ. (1996), 112 Ohio App.3d 724. 

{¶ 7} There is no dispute that Cutright was employed by defendant at the time 

of the incident. Plaintiff alleges that Cutright used excessive force against him during 

the March 31, 2008 incident which amounts to “incompetence.” 

{¶ 8} The Ohio Administrative Code sets forth the circumstances under which 

force may be lawfully utilized by prison officials and employees in controlling inmates. 

Ohio Adm.Code 5120-9-01(C) provides, in relevant part: 

{¶ 9} “(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: 

{¶ 10} “(a) Self-defense from physical attack or threat of physical harm; 

{¶ 11} “(b) Defense of another from physical attack or threat of physical attack; 
Case No. 2009-05978 - 4 - MAGISTRATE DECISION

{¶ 12} “(c) When necessary to control or subdue an inmate who refuses to obey 

prison rules, regulations or orders; 

{¶ 13} “(d) When necessary to stop an inmate from destroying property or 

engaging in a riot or other disturbance; 

{¶ 14} “(e) Prevention of an escape or apprehension of an escapee; or 

{¶ 15} “(f) Controlling or subduing an inmate in order to stop or prevent selfinflicted harm.” 

{¶ 16} The court has recognized that “corrections officers have a privilege to use 

force upon inmates under certain conditions. * * * However, such force must be used in 

the performance of official duties and cannot exceed the amount of force which is 

reasonably necessary under the circumstances. * * * Obviously ‘the use of force is a 

reality of prison life’ and the precise degree of force required to respond to a given 

situation requires an exercise of discretion by the corrections officer.” Mason v. Ohio 

Dept. of Rehab. & Corr. (1990), 62 Ohio Misc.2d 96, 101-102. (Internal citations 

omitted.) 

{¶ 17} Based upon plaintiff’s testimony, the court finds that the force he alleges 

that Cutright used against him was not excessive and no more than necessary to 

“control or subdue” plaintiff after he argued with Cutright. Accordingly, plaintiff has 

failed to prove Cutright’s “incompetence,” and therefore cannot meet his burden of proof 

with respect to his negligent training and supervision claim. 

{¶ 18} Based upon the foregoing, judgment is recommended in favor of 

defendant. 

 A party may file written objections to the magistrate’s decision within 14 days of 

the filing of the decision, whether or not the court has adopted the decision during that 

14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, 

any other party may also file objections not later than ten days after the first objections 

are filed. A party shall not assign as error on appeal the court’s adoption of any factual 
Case No. 2009-05978 - 5 - MAGISTRATE DECISION

finding or legal conclusion, whether or not specifically designated as a finding of fact or 

conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion within 14 days of the filing of the 

decision, as required by Civ.R. 53(D)(3)(b). 

 _____________________________________ 

 MATTHEW C. RAMBO 

 Magistrate 

cc: 

 

Amy S. Brown 

Emily M. Simmons 

James P. Dinsmore 

Jennifer A. Adair 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Andre Collier, #233-115 

London Correctional Institution 

P.O. Box 69 

London, Ohio 43140 

MR/cmd 

Filed August 12, 2010 

To S.C. reporter September 9, 2010