[Cite as Russell v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-4695.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Mark R. Russell, : 

 Plaintiff-Appellant, : No. 19AP-424 

 (Ct. of Cl. No. 2018-00978JD)

v. : 

 (ACCELERATED CALENDAR) 

Ohio Department of Rehabilitation : 

and Correction, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on November 14, 2019 

 

On brief: Mark R. Russell, pro se. 

On brief: Dave Yost, Attorney General, and Howard H. 

Harcha, IV, for appellee.

 

APPEAL from the Court of Claims of Ohio 

LUPER SCHUSTER, J. 

{¶ 1} Plaintiff-appellant, Mark R. Russell, appeals from a judgment of the Court of 

Claims of Ohio granting the motion for summary judgment filed by defendant-appellee, 

Ohio Department of Rehabilitation and Correction ("ODRC"). For the following reasons, 

we reverse and remand.

I. Facts and Procedural History 

{¶ 2} On June 21, 2018, Russell, an inmate in the custody and control of ODRC, 

filed a verified complaint alleging ODRC corrections officers used excessive force against 

him at the Pickaway Correctional Institution during a "shakedown" on June 30, 2016. 

(Compl. at 1.) Russell specifically alleged the officers grabbed him "[threw] him against the 

wall handcuffed him and sprayed him with mace." (Compl. at 1.) He was "also punched 
No. 19AP-424 2 

several times in the ribs." (Compl. at 1.) He further alleged that after he was taken out of 

the bed-area into the dayroom area, he was "slammed to the ground" and again sprayed 

with chemical mace. (Compl. at 1.) He claimed that he sustained lasting injuries to his eyes 

and ribcage as a result of the corrections officers' use of force. 

{¶ 3} In March 2019, ODRC moved for summary judgment, arguing its corrections 

officers used reasonable force to control and subdue Russell during the shakedown of the 

dormitory at Pickaway Correctional Institution. In support, ODRC submitted affidavits, 

along with incident reports, of three corrections officers involved in the confrontation with 

Russell on June 30, 2016. These corrections officers generally averred that as they were 

conducting the shakedown of the dormitory, Russell acted disorderly and became 

disrespectful toward the officers. Because Russell did not comply with instructions for him 

to be quiet and return to his living quarters, Corrections Officer Victor Bologna placed him 

against the wall and ordered him to stop resisting. Russell did not comply with the 

directives. Corrections Officer Cody Borling dispensed a short burst of chemical mace 

toward Russell's face. Russell was then handcuffed. As he was being escorted out of the 

area, he continued to be physically and verbally combative. Consequently, he was "then 

taken to the ground and remained uncooperative." (Ex. A, Bologna Aff. at ¶ 4, attached to 

Mar. 25, 2019 Def.'s Mot. for Summ. Jgmt.) Corrections Officer Richard Hayes dispensed 

a short burst of chemical mace on Russell to stop his continued resistance. After this second 

application of chemical mace, Russell became compliant. All three officers averred that no 

further force was used against Russell. 

{¶ 4} Russell filed a memorandum in response to ODRC's motion for summary 

judgment. He argued in part that ODRC did not address his allegations relating to the 

injury to his ribcage. He also attached an unauthenticated copy of a document captioned 

Deputy Warden of Operations Review of Use of Force, which according to him failed to 

document the use of chemical mace on him. 

{¶ 5} In June 2019, the trial court granted ODRC's motion for summary judgment. 

The trial court considered the document Russell submitted, and found that it corroborated 

the account of the incident by ODRC's corrections officers. The trial court concluded that 

the evidence that ODRC submitted was unrebutted and demonstrated that the force used 

against Russell was necessary and reasonable under the circumstances. 
No. 19AP-424 3 

{¶ 6} Russell timely appeals. 

II. Assignments of Error 

{¶ 7} Russell assigns the following errors for our review: 

[1.] The Court of Claims erred when it granted defendant's 

motion for summary judgment in violation Civil Rule 56(c) and 

appellant's 6th and 14th amendment rights of the U.S. 

Constitution. 

[2.] Appellant's case/claim was not adjudicated by an impartial 

tribunal in violation of his Ohio and United States 

Constitutional rights. 

(Sic passim.) 

III. Discussion 

A. First Assignment of Error – Summary Judgment 

{¶ 8} Russell's first assignment of error alleges the trial court erred in granting 

summary judgment in favor of ODRC. We agree. 

{¶ 9} An appellate court reviews the granting of summary judgment under a de 

novo standard. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. 

Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is 

appropriate only when the moving party demonstrates (1) no genuine issue of material fact 

exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable 

minds could come to but one conclusion and that conclusion is adverse to the party against 

whom the motion for summary judgment is made, that party being entitled to have the 

evidence most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State 

Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997). 

{¶ 10} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280, 

293 (1996). However, the moving party cannot discharge its initial burden under this rule 

with a conclusory assertion that the nonmoving party has no evidence to prove its case; the 

moving party must specifically point to evidence of the type listed in Civ.R. 56(C) 

affirmatively demonstrating that the nonmoving party has no evidence to support the 

nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the 
No. 19AP-424 4 

moving party discharges its initial burden, summary judgment is appropriate if the 

nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with 

specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430; 

Civ.R. 56(E). 

{¶ 11} Here, Russell sued ODRC for the use of excessive force. 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]." Love v. Port Clinton, 37 Ohio St.3d 98, 99 (1988). A defendant may defeat a 

battery claim by establishing a privilege or justification defense. Id.; Wheeler v. Hagood, 

12th Dist. No. CA95-03-025 (Sept. 11, 1995). However, "the use of excessive force by one 

privileged to use force on another may constitute battery." Shadler v. Double D. Ventures, 

Inc., 6th Dist. No. L-03-1278, 2004-Ohio-4802, ¶ 19. 

{¶ 12} To prove actionable negligence, a plaintiff must show the existence of a duty, 

breach of that duty, and injury proximately caused by the breach. Mussivand v. David, 45 

Ohio St.3d 314, 318 (1989). The state owes a duty to inmates to reasonably care for the 

inmates' health, care, and well-being. Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 

12AP-12, 2012-Ohio-3382, ¶ 12; Ensman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 

06AP-592, 2006-Ohio-6788, ¶ 5. 

{¶ 13} The " 'use of force is an obvious 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.' " Miller at ¶ 13, quoting Ensman at ¶ 23; see Ohio Adm.Code 5120-9-

01(A) ("As the legal custodians of a large number of potentially dangerous inmates, prison 

officials and employees are confronted with situations in which it may be necessary to use 

force to control inmates or respond to resistance."). Ohio Adm.Code 5120-9-01 provides 

guidance for determining whether a corrections officer's use of force is reasonable. Under 

Ohio Adm.Code 5120-9-01(B)(1), "force" means "the exertion or application of a physical 

compulsion or constraint." Corrections officers considering the use of force must evaluate 

the need to use force based on the circumstances as known and perceived at the time it is 

considered. Ohio Adm.Code 5120-9-01(C)(1). Ohio Adm.Code 5120-9-01(C)(2) identifies 
No. 19AP-424 5 

six general circumstances under which a corrections officer may use less-than-deadly force 

against an inmate. Those circumstances include: 

(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 other disturbance. 

(e) Prevention of an escape or apprehension of an escapee; or 

(f) Controlling or subduing an inmate in order to stop or 

prevent self-inflicted harm. 

{¶ 14} In addition to addressing the circumstances under which a corrections officer 

may use force, Ohio Adm.Code 5120-9-01 also provides direction regarding the extent and 

amount of the force an officer should use. Pursuant to Ohio Adm.Code 5120-9-01(C)(1)(a), 

corrections officers "may use force only to the extent deemed necessary to control the 

situation." And they "should attempt to use only the amount of force reasonably necessary 

under the circumstances to control the situation and shall attempt to minimize physical 

injury." Ohio Adm.Code 5120-9-01(C)(1)(b). "Excessive force" means "an application of 

force which, either by the type of force employed, or the extent to which such force is 

employed, exceeds that force which reasonably appears to be necessary under all the 

circumstances surrounding the incident." Ohio Adm.Code 5120-9-01(B)(3). 

{¶ 15} ODRC submitted affidavits, with incident reports attached, of three 

corrections officers involved in the confrontation with Russell on June 30, 2016, in support 

of its summary judgment motion. This evidence indicated that Russell was disorderly and 

disrespectful when corrections officers were conducting a shakedown at the Pickaway 

Correctional Institution dormitory. Because of Russell's combative behavior, the officers 

placed Russell against the wall and sprayed chemical mace at him, but he continued to 

resist. Even after being handcuffed, Russell had to be taken to the ground and again 

sprayed with chemical mace. Once Russell was controlled and subdued, he was escorted 
No. 19AP-424 6 

from the location. The corrections officers denied using any other force on Russell. Thus, 

these averments indicated that the force used was necessary and reasonable under the 

circumstances. But the record also contained contrary evidence that was not considered by 

the trial court. 

{¶ 16} Sworn pleadings, such as a verified complaint, constitute evidentiary material 

under Civ.R. 56(C). Columbus v. Bahgat, 10th Dist. No. 10AP-943, 2011-Ohio-3315, ¶ 15. 

"Consequently, a trial court can accept factual averments in a verified complaint as 

evidence, but only to the extent that those averments are within the personal knowledge of 

the affiant who verified the complaint." Id. Here, Russell signed an affidavit that verified 

the factual allegations in the complaint. Thus, Russell's verified complaint constituted 

evidentiary material that could be considered in resolving ODRC's summary judgment 

motion. See id. In his verified complaint, Russell averred, among other things, that he was 

punched several times in the ribs, and that these strikes caused lasting injury. Therefore, 

the record contained evidentiary material that demonstrated a genuine dispute over 

whether the force used was reasonable. Consequently, the trial court erred in granting 

ODRC's summary judgment motion. 

{¶ 17} Accordingly, we sustain Russell's first assignment of error. 

B. Second Assignment of Error – Impartial Tribunal 

{¶ 18} In his second assignment of error, Russell alleges his rights were violated in 

the trial court because the case was not resolved by an impartial tribunal. He asserts the 

judge should have recused himself from this matter due to a purported conflict of interest. 

While our disposition of Russell's first assignment of error results in the reversal of the trial 

court's judgment, his second assignment of error remains ripe for review because we are 

remanding this matter for further proceedings. 

{¶ 19} The proper procedure to seek judicial disqualification of a Court of Claims 

judge is to file an affidavit of disqualification with the clerk of the Supreme Court of Ohio 

pursuant to R.C. 2743.041. Only the chief justice or his or her designee has authority to 

rule on an affidavit of disqualification. R.C. 2701.03; R.C. 2743.041; see Day v. Ohio Dept. 

of Rehab. & Correction (In re McGrath), 149 Ohio St.3d 1224, 2016-Ohio-8601, fn. 1 (R.C. 

2743.041 "provides that the procedures for filing and deciding an affidavit of 

disqualification against judges of the court of common pleas under R.C. 2701.03 also apply 
No. 19AP-424 7 

to affidavits of disqualification against judges of the court of claims."). Thus, this court has 

no authority to rule on a request to disqualify a trial court judge from presiding over a 

particular case. Cline v. Mtge. Electronic Registration Sys., Inc., 10th Dist. No. 13AP-240, 

2013-Ohio-5706, ¶ 32. 

{¶ 20} Accordingly, we overrule Russell's second assignment of error. 

IV. Disposition 

{¶ 21} Having sustained Russell's first assignment of error and overruled his second 

assignment of error, we reverse the judgment of the Court of Claims of Ohio and remand 

this matter to that court for further proceedings consistent with law and this decision. 

Judgment reversed; 

cause remanded. 

KLATT, P.J., and NELSON, J., concur.