[Cite as Landers v. Ohio Dept. of Rehab. & Corr. , 2022

- Ohio

- 2386.]

{¶1} Plaintiff, formerly an inmate in the custod y and control of defendant , brings this action alleging that on December 29, 2018 , employees of defendant at Franklin Medical Center (FMC) injured him in an incident that am ounted to e xcessive use of force

. {¶2} Upon defe ndant ’ s motion , this matte r came on for a n e videntiary hearing to determine whether former corrections officer Korday R. Allison , former corrections officer Jovan Cason , and former corrections officer Paris C. Love are entitled to civil immunity pursuant to R.C. 9.86 and 2743.02(F) , so that it m a y be determined whether jurisdiction over the mer its of the case rests with the Court of C laims o r the courts of common pleas.
Findings of F act {¶3} O n December 29, 2018, p laintiff was an inmate in the c ustody and control of defen dant at FMC

. O n that day, A l l ison confiscated plaintiff ’ s cigarette

. A lthough cigare ttes are not allowed at FMC, Alli son let the inmates smoke

. Plaintiff previously provided Allison with a honey bun and a pop to be allowed to smoke, but on that day, plaintiff did not g ive Allison a h oney bun and a pop. Allison confiscated plaintiff ’ s cigare tte and gave it to another inmate , c ausing plaintiff to be upset

. Plaintiff believed it to be unfair that Allison allowed other inmates t o smoke but did not allow him to smoke. Thi s
enco u nter oc curr ed on the upstairs range of the housing un it

. {¶4} The following is rec orded on defendant ’ s video surveillance system

. Defendant ’ s Ex hibit A; plaintiff ’ s Exhibit 1. A pproximately five minutes after Allison CHARLES A. LANDERS, JR
Plaintiff

v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant Case No. 2020

- 00718JD Magistrate Gary Peterson
DECISION OF THE MAGISTRATECas e No. 2020

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- DECISION

confiscated plaintiff ’ s cigarette , plainti f f slow ly walks behind the officer ’ s station on the fi rst floor of the housing unit , also known as the dayroom

. Plaintiff is holding a ra dio, which he descri bed to be similar to an mp 3 player wit h controls like a cell phone

. Both plaintiff ’ s hand s are grip p ing the radio as seen on the v ideo

. Allison , who is w earing a black hat, enters the frame and walks around the opposite side of the off icer ’ s station

. Allison ’ s hands are in his pockets, and he walks directly to plaintiff

. A llison and plainti f f app ear t o b e engaging in a c onversation

. Plaintiff reports that Allison called hi m a “ pussy bitch

. ” Plaintiff points hi s finger and app ears to be upset

. Plaintiff remarked at trial that he told A llison that h e thought it was “ messed up ” that Allison c onfisc ated his cigarette but allowed other inmates to smoke

. At this point, three other corrections office rs, including Cason and Love exit the of ficer ’ s station and approach Alli son and plaintiff. Al lis on turns around and appe ars to acknowledge their pr esence

. Th e th ird unidentified corrections officer continue s wa lking around the officer ’ s station out of the view of the surveillan ce camera

. Allison is inches from plaintiff ’ s face , and plaintiff app ears t o be backed up against a wall. Approximately a doz en oth er inm ates are present in the dayroom , and all the inmate s seem to turn their attention to the confrontation inv olving plaintiff

. {¶5} The gr oup move s sl ightly to the left of view on the camera

. The officer ’ s station la rgely o bscure s the vi ew of what occur s ne x t ; ne ver th eless, the evidence established that Allison initially s truck plaintiff and that Cason and Love j oin ed the fracas immediately ther eafter

. T hrough the wi ndows o f the off icer ’ s station , plaintiff is seen falling toward the tele phones on th e back w all

. Plaint iff app ears to attempt to stabilize himself on ly t o fall again with a corrections officer on top of him. The corrections officers appear to struggle with pla intiff while he is on the ground. {¶6} P laintiff subsequently attempts to esca pe toward t he exe rcise e quipment as the group emerge s from behind the o fficer ’ s station and back into view of the camera

. Allison follo ws , eventually ta ckling pla in tiff to the ground. Cason and Love quickly followCas e No. 2020

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behind

. Cason appears to strike plaintif f in the he ad/n ec k

. Alliso n , who is no longer wearing a hat, picks up a b lue cha ir and hits plaintiff with the chair while plaintiff is on the ground

. A s plaintiff attempts to get back up off the ground, Love pushes plaintiff in the back down to the gr ou nd. Alliso n then swings his fist at plaintiff ’ s head

. Allison an d Love j oi n tly push plaintiff back to the ground as p laintiff again attempts to get up

. Allison and C ason both appear to st rike plaintiff while plaintiff is on the ground. Cason then grabs plaintiff from b ehin d and Allis on again strikes plaintiff

. Cason p icks pla int i ff up off the ground , and along with Love , throws plaintiff to the ground. Allison then ap p ears to kick plaintiff in the face. As plaintiff is again attempting to stand up , A llison push es pla intiff ’ s face down on the e dge of the pool table. Plaintif f the n stands up , and Allison walks away

. Plaintiff then leaves the day room

. The physical alterca tion last s approximately one minute as sho wn o n the video time stamp

. {¶7} At no poin t do any of the co r rections offic ers a tt empt to place handcuffs on plaintiff , and at n o point during the altercation do any of the corrections officers activate their man down alarm s

. A l lison activated the man down alarm well after the altercation conclud ed

. After plainti ff left th e dayr oom, h e sat on a bench where he was subs equently handcuffe d and escorted to the captain’s office rath er than to medi cal . Plaintif f lat er
c ompleted a n “ inmate confidential statement ” wherein he document ed the events. Defen dant ’ s Exhi bit K. {¶8} Allison had been a cor rections officer for nearly four years as of Decembe r 29, 2018. P rior to beginning his employment, Allison completed a t wo - week o ff icer ’ s traini ng , w hich included training on the use of force

. Allison also comp let ed annual

o fficer ’ s training

. P r ior t o this incident, Allison had never completed a n incident r e port regarding the use of force

. {¶9} O n December 29, 20 18, Allison was assigned to Dorm 2 of F MC as a regular corrections officer

. Allison previously had no issu es or probl ems with plaintiff p rio r to that d ay

. Allison c a ught plaintiff with a cigarette , and a s one of his job duties, he confiscatedCas e No. 2020

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- DECISION

plaintiff ’ s cigarette

. Accor ding to Allison, plaintiff was saying “ crazy stuff ” after he confiscated the cigarette

. {¶10} Allison mai ntained th at he approached pla intiff in the dayroom to de esca late the situation

. Allison reported that plaintiff used exp licit l anguage causing him to fear f or his own personal safety

. Al lison acknowledged , however, that he did not activate hi s man down alarm at t his time. Alliso n stated tha t plaintiff refused to ob ey prison orders, rules, and regulatio n s, and that plaintiff would not “ cuff up

. ” Allison maintaine d that plaintiff made a sudden move that caus e d him to be lieve he was at risk of harm , that plaintiff ’ s hand s were in his pockets, and at that point Allison began to protect him self

. Allison denied coordinating the use of forc e on pla intiff with Cason and Love and m aintained that it was th eir job to back hi m up in the confrontation

. After the u se of forc e, Allison did not attem pt to place handcuffs on plaintiff

. Allis o n explained that after the use of force, he felt like he was going t o “ pass out. ” {¶11} Allison autho red a n incident report following the use of fo r ce and participated in an administra tive invest igation regarding the i ncident

. Defendant ’ s Exhibit s B and G

. Cas o n and Love also completed inc ident reports follow ing the use of forc e and participated in an administrative investiga tion regarding this eve nt

. D efendan t ’ s Exhibit s C , D , I, and J

. Alliso n ’ s , Cason ’ s , and Love ’ s employment was subsequently terminated, an d t he y therea fter ple ad guilty to criminal dereliction of duty

. Defendant ’ s Exhibits O, P , Q , and U

. {¶12} Greg Harris is employed with defendant at FMC as an investi gator

. H arris

a cts a s a lia ison between defendant a nd the Ohio State Hi ghway Patrol investigatin g anyt hing t hat coul d lead to criminal charges , including the use of forc e by staff. H arris gathered incident reports , media l examination re ports , inmate state ment s ; conducte d interviews ; and reviewed video o f the use of force. C orrectio ns officers are tra ined to dees calate a sit uation ; to remove oneself from a situation if necessary ; to allow another corrections officer to talk i f warranted ; not to raise their voi ces ; and to call for as sistance

.Cas e No. 2020

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Regarding t he use of force policy , c orrect ions officers should use the le ast amount of force ne c essary to control a situation beginning with an order to cuff up. If refu sed , then che mical mace may be used

. I f that does not gain com p liance , the n the least amount of physical for ce to control the situ ation may be used

. T he use of force does not i nclude

s tomp ing, chair throwing , or punching in the face. Harris explained that Cason was a probationary of ficer undergoing on

- the

- job trai n ing by Love. Har ris stated that it is Love ’ s
re sponsibi li ty to ensure Cason has the necessary equipment including ha ndcuffs, whi ch Cason did not have that day

. Leah Bobb

- itt and James Hogon both authen ticated several of the ex hibits that were used at the hearing.

C o nc lusions of Law and Discussion {¶13} “In accorda nc e with R.C. 2743.02(F), th e Court o f Claims ‘ has exclusive jurisdic tion to determine whether a state employee is immune from liability under R.C

. 9.86.’” Nix v. Ohio Dept. of Rehab. & Corr. , 10th D ist. Frankli n No. 13AP

- 547, 2014

- Ohio

- 2902, ¶ 22, quotin g Johns v. Univ. of Cincinna ti Med. A ssocs. , 10 1 Ohio St.3d 2 34, 2004

- Ohi o - 824, syllabus. There is no dispute that A ll ison , Cason, and Love were at a ll times relevant state employees. {¶14} R.C. 9.86 state s, in part: {¶15} “ Except for civil actions that arise out of th e operat ion of a motor vehi cle and civil actions in w hich t he state is the plaintiff, no officer or employee shall be liable i n any civil action tha t arises under the law of this state for damage or injury caus e d in the performance of his duties, unless th e office r’s or em ployee’s a ctions were manifestly out side t he scope of his employment or official responsibilities, or unless the officer or employe e acted with malicious purpose, in bad faith, or i n a wanton o r reckless manner.” {¶16} “[T]he question of scope o f employ ment must turn on w hat the [employee’s] dutie s are as a sta te employee and whether the [employee] was engaged in those duties at the time of an injury.” Theobald v. Univ. of Cincinnati , 111 Ohio St.3d 5 41, 2006

- Ohio

6208, ¶ 23. “[T]he scope of em ployment is a fac t

- based in quiry that turns on proof of theCas e No. 2020

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employe e’s specific job description with the state and focuses on whether the employee’s conduct is related to and promotes the state’s in terests.” R i es v. Ohio State Univ. Med. Ctr. , 137 Ohio St .3d 151, 2013

- Ohi o - 4545, ¶ 23. {¶17} “An employee’s wrongfu l act, even if it is unnecessary, unjustified, excessive or improper, doe s not automatically ta ke the act manifestly outside the scope of employm ent. * * * T h e act must be so divergent that it severs t he employe r - employe e relation ship.” Elliott v. Ohio De pt. of Rehab. & Corr. , 92 Ohio App.3d 772, 775 (10th Dist.1994) . “The fact that the conduct constituting the tort was committed while the employ ee was on du t y and supposedly performing services for h i s employ er, does n ot render the employer lia ble wh ere the employee de viated or departed from his employer’s business to engage upon a matte r for his own personal purposes without benefit to the employ er.” Caruso v. State , 136 Ohio App.3d 616, 621 (10th D i st .2000) . The Sup reme Court of Ohio has hel d that “‘an intentional a nd wilful attack committed by an agent or employ ee, to vent his own sp leen or malevolence against the injured person, is a clear de parture from his employment and his principal or employ e r is not responsib le therefor.’ * * * In oth er wor ds, an employer is not liable for independent self

- serving acts of his employees which in no way facilitate or promote his business.” Byrd v. Faber , 57 Ohio St.3 d 56, 59 (1991), quoting Vrabel v. Acri , 15 6 O hio St . 467, 474 (1952). {¶18} For purposes of R .C. 9. 86, “[m]alicious pu rpose encompasses exercising ‘malice,’ which can be defined as the wil lful and intentional design to do injury, or the intention or desire to h a rm another, usually seriously, through con d uc t that is unlawf ul or unjustified.” Carus o at 6 20. {¶19} “Bad faith has been defined as the opposite of good faith, gene rally implying or invo lving actual or constructive fraud or a design to mislead or deceive anot h er. * * * Bad faith is not prompted by an h on est mi stake as t o one’s rights or duties, but by some interested or sinister motive.” Id. at 621.Cas e No. 2020

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{¶20} “[R]eckless cond uct refers to an act d one with knowledge or reason to know of facts that would lead a reasonabl e person to believe that the conduct create s a n
unne cessary ri sk of physical harm and th at suc h risk is greater t han that necessary to make the conduct negligent . * * * The term ‘reck less’ is often used interchangeably with the word ‘wanton’ an d has also b e en held to be a perverse disregard of a kn o wn risk. ” Id. In a similar statutory conte xt ari sing under R.C. Cha pter 2744, though, the Supreme Court held that t he terms ‘wanton’ and ‘reckless’ are not interchangeable and defined wanton miscond uct as “‘the failure to exercise any care toward those t o whom a duty of c are is owed in circumstanc es in which there is grea t probability that harm will result.’” Wrinn v. Ohio State Hwy. Patro l , 10th Dist. Franklin No. 11AP

- 1006, 2013

- Ohio

- 1141, ¶ 13, q uoting Ander

s on v. Massillon , 134 Ohio St.3d 380, 2012

- O hi o - 5711 , paragrap h three of the syllabus. {¶21} “ If the Court of Claims de termines that the employee’s acts did not furthe r the interests of the state, i.e., the employee was acting outside the scope of hi s employment , maliciously, in bad faith, or in a wanton or reckl ess manner , the state has not agreed to ac cept responsibility for the employee’s acts and the employee is per sonally answerable for his acts in a court of common pleas.” Conley v. Shearer , 64 Ohio St.3d 2 84, 287 (1992). {¶22} “The determination as to w h et her or not a per son is entitled to immunit y unde r R.C. 2743.02(F) a nd 9.86 is a question of law.” Morway v. Ohio B ur. of Workers’ Comp. , 10th Dist. Franklin No. 04AP

- 1323, 2005

- Ohio

- 5701, ¶ 17. “T o make that d etermination, however, the court must cons i de r spec ific facts .” Peachock v. Northcoast Behav ioral Health Ctr. , 10th Dist. Franklin No. 07AP

- 195, 2007

- Ohio

- 5160 , ¶ 21. At the outset of the evidentiary hearing, it was agreed that defendant, as the party s e eking to prove that personal liability sho u ld be im posed upon state employees, has the burden of proof.Cas e No. 2020

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{¶23} “The us e of force is sometimes necessary to control inm ates.” Jodrey v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 12AP

- 477, 2 013

- Ohio

- 289, ¶ 17. “Correctional officers considering th e use of force m ust evaluate the need to u se for ce based on the cir cumstances as known and perceived at the time it is considered.” Brow n v. Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 13AP

- 80 4, 2014

- Ohio

- 1810, ¶ 15, citing Ohio Adm.Code 5120

- 9

- 01 ( C) . “[T ]he precis e degree of force required to re spond to a given si tuation requires an exercise of discretion by th e corrections officer. ” Ensman v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Frankli n No. 06AP

- 59 2, 2006

- Ohio

- 6788, ¶ 23. “In Ohio Adm.Cod e 5 120

- 9

- 01, the Oh io Administrative Code set s fort h the circumstances under which correctional officers are authorize d to use force against an inmate.” Id. at ¶ 6. {¶24} Ohio Adm.Code 5120

- 9

- 01 provides, i n pertinent p art: “(C) Guidelines regarding the use of f or ce. * * * “* * *

“ (2) Less

- than

- deadly for ce. T here are six genera l circumstances in which a staff member may use force against an inmat e or third person. A staff member may use less

than

- deadly f orce against an inmate in the following circumstances:

“ (a ) Self

- defense f rom physical attack or thr eat of physical harm. “(b ) Defense of another from physical attack or thr eat of physical attack

. “(c) When necessary to control or subdue an inmate who refu ses to obey p rison rules, regulations or orders. “(d) W h en neces sary to st op an inmate from destroyi ng pro perty or engaging i n a riot or other disturbance. “(e) Prevention o f an escape or apprehe nsion of an escapee; or “(f) Controlling or subduing an inma te in order t o stop or prevent self

- inflicted harm.”Cas e No. 2020

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{¶25} “Pu r s uant to Ohio Adm. Code 5120

- 9

- 01(C)(1)(a), c orrect ional officers ‘may use force only to the extent deemed necessary t o control the situatio n.’ Additionally, correctional officers ‘should attempt to use only the a mount of force reasonably necessary under t h e circu mstances t o control the situation an d shal l attempt to minimi ze physical injury.’ Ohio Adm.Code 5120

- 9

- 01(C) (1)(b).” Brown at ¶ 1 6. Also pertinent is Ohio Adm.Code 5120

- 9

- 01(B)(3), which d efines “exces s ive force” as “an application of force whi c h , eithe r by the t ype of force employed, or the ex tent to which such force is employed, exceeds that force which reas onably appears to be n ecessary under all the circumstances surrounding the inciden t.” {¶26} The magis t rate finds that Allison is not entitled to c ivil immunity

. Allison confiscated a cigare tte fr om pl aintiff while they were on the upper floor of the housing u nit

. Allison previously had allowed plaintiff to s moke as long as he received a pop and/or a hone y bun , but on December 29, 2018, plaintiff di d not give Allison a pop and/or a honey b un

. Fi ve minutes after he co nfiscated the cigarette , Al lison app roached p laintiff in the dayroom , do wn the stairs from where Allison had previously confisca ted the cigar e tte

. Pla intiff was looking at his radio at the time and his hands were not in his poc k ets as Allison contend ed at the hearing

. Allison confronted p laintiff and engaged in a verbal altercation where Allison was face

- to

- face with plaintiff , w ho was backed up against the wall. The conversation app ea r s to quickly int en sify as s ho wn by Allison ’ s demeanor , plaintiff ’ s react ion , and how t he other d oz en inmates in the dayroom focus their attention on Al lison and plaintiff

. I t does not appear to ha ve b een a plan ned attack , a s it occurred in the open, in front of a do zen inmates, and on camera. At n o point du r ing the physical altercation did plaintiff even at tempt to harm Allison o r the other officers ; rather , plaintiff only attempted to evade the a ttack after he had been st ruck by Allison. {¶27} Allison believed that plaintiff made a sudden mov e that caused him to fear for his o wn safety ; however, the ma gistr ate finds that such testimony is not credible

. W hen Allison first struck plaintiff , pl aintiff was surrounded by Allison, Cason , and Lo ve

.Cas e No. 2020

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- DECISION

Plaintiff, who had a radio in his hands a t the time, did not pose a risk of phy sical harm

. Additionally, the vide o bel ies Allison ’ s claim that plaintiff had his hands in his pockets. Allison ’ s demeanor , along with t hat of Cason a nd Love, was not consis tent with any sort of a situ ation where they f elt threatened by plaintiff

. I n deed, prior to striking plaintiff , Allis on tu rn ed his back to plaint iff and acknowledge d Ca son and Love

. As Harris credibly explained, offic ers sh ould att empt to deescalate the situation , order that an inmate cuf f up , or d i sperse chemical mace prior to eng a ging i n a physical altercation , and the n , th e officers should only use the least amount of force ne cessary to control the situation

. A ppro ved force does not include sto mpin g, punchin g in the face, or throwing ch airs

. At

no point does Allison attempt to ha ndcuff plaintiff , deescalate the situati on , o r disperse chemical mace to gain cont rol of plaintiff

. Rather, All ison escalate d th e alterca tion by confro nting plaintiff , corner ing him, and str i king him

. {¶28} As the a tta ck cont in ues, A llison tackl e d plaintiff to t he flo or, hit plaintiff with a chair, ki ck ed plaintiff while he wa s on the ground, and slam m ed plaintiff ’ s head into the edge of the pool table

— all for ce that was e xcessive a nd unreasonable

. At no p oint during th e atta ck does Allison act ivate his man down al arm

. Af te r the attack concludes, Allis on si mply walk ed away and there wa s no attempt to handcuff plaintiff

. Allison behaved with mal icious purpose by acting with the wil lful and intentional design to ser iously in ju r e plaintiff in this unprovoked attack

. Indeed, All is on failed to ex ercise any c are t oward plaintiff in circumstances where there w a s a probability that harm wil l result. I n short, Alliso n acted with malicious pu rpose and his actions were manife stly outs i de the scope of employment

. {¶29} While ther e are circumst an ces in which employees of d efend ant are permitted to use force against an inmate when necessary to control a situation , in this case p laintiff posed no threa t of physical harm to the staff or himself , h e was not ord ere d to cuff up, he was not destroying pr operty or engaged in a dist urban ce , and he was not

es cap ing or t hreatening to e scape

. T he situation was created by Alli son ’ s actions towardsCas e No. 2020

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- DECISION

plaintiff

. Als o, the facts of this case are disting u ishable from others in whic h employees of defendant who were co nfronted with a situation i nvolv ing some perceived misconduct by an inmate reacted on the spot to that situation and u sed more force than necessary, but ne vertheless acted in furtherance of de f endant’ s interests and not with malicious purpose, in bad fai th , or in a wanton or reckles s man ner. See generally Peppers v. Ohio Dept. of Rehab. & Corr. , 50 Ohio App.3d 87 (10th D ist.1988); Tho mas v. Ohio Dept. of Re hab. & Corr. , 48 Ohio App.3d 86 (10th Dist.19 8 8); Booth v. Ohio D ept. of Rehab. & Corr. , Ct. of Cl. N o. 2004

- 01419, 2005

- Ohio

- 70 18. H ere, five minutes after Al lison confisc ated the cigarette , Allison confronted plainti ff in the day r oom, backed plaintiff u p against the wall, and struck plaint iff with ou t provocation with an apparent motive to punish plaintiff or to vent his ange r

— s el f

- s erving motive s that removes Alli son ’ s actions from the scope of his employment

. See Jo drey at ¶ 20 ( finding that a correcti ons officer ’ s only apparent motive in dumping an inm ate ou t of his wheelchair and dropping the wheelchai r on the inmate was to ve n t hi s anger ; a se lf

- serving motive that removed the officer ’ s acti ons from the scope of e mployment ). {¶30} Mo reover, the degree of f orce Allison used far exceeded that which cou ld

e ven arguably have been justified

. Such excessive force includ ed punches to the f a ce, kicks to the hea d, a cha ir used as a weapon , and slamming plaintiff ’ s fa ce into the e dge of the po ol table. Indeed , the evidence put fo rth at the h earing sho w s that Alliso n attacked plaintiff with the intention or desi re to do some harm through an unj u stif ied , punitive use of force, and the excessiveness of that force was suff iciently ma levolent and s ignificant enough in de gree as to seve r the employer

- employee relati onship

. Nix v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Frank lin No. 13AP

- 547, 2014

- Oh i o - 29 02, ¶ 22 ; A dams v. Ohio Dept. of Rehab. & Corr ., Ct. of Cl. No. 2013

- 00140 , ( July 26, 2016)

. {¶31} Reg arding the actions of C ason and Love , the magistrate finds that they did

no t act with malicious purpo se , in bad faith , or in a w an ton or reckless manner

. C a son and Love did not confi scate the cigarette or initiate t he confrontation between A llison andCas e No. 2020

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- DECISION

pla intiff

. I t was only af ter Allison confronted plaintiff that Cason a nd Love e merged from the officer ’ s stat ion

. Indeed, as sho wn on the video, Allison wa l ked up t o plaint iff and

e ngaged him in a conversation that appe ared to get heated right away

. As All ison and plaintiff were face

- to

- face, Cason and Love e xit ed the offi cer ’ s stati on and st ood by Allison

. {¶32} It was not established that Cason ’ s and Love ’ s actions were a part of a planned coordinated attack on plaintiff ; r ather, Cason and Love r esponded i n th e mom ent to the con frontation between Allison and plaintiff

. I t was not est ablished that Cason and Love had prior kno wledge of any planned confrontation in v olvi ng Allison and plaintiff

. Additionally, rather than attempting to carry out a pl anned attack i n a less visible location to conceal t heir actions , the confr ontation was c aught on vid eo surveillance and o ccurred in the dayroom surrounded by dozens of other in mates , some of whom where only a few feet from the f racas

. Cason ’ s an d Love ’ s actions were i n a id of Allison as he was engaged with plaintiff i n a verbal altercation that quickly turned physical

. Indeed, Cason and Love reacted on the spot but never theless furth ere d defendant ’ s interests in backing up a f e l low corrections officer an d not with mal icious purpose, in bad faith, or in a wanton or reckless

mann er

. See generally Peppers v. Ohio Dept. of Rehab. & Corr. , 50 Ohio App.3d 87 (10th Dist.1988); T

homas v. Ohio De

pt. of Rehab. & Corr. , 48 Ohio App.3d 86 (10th Dist.1988); Booth v. Ohio Dept. of Rehab. & Corr. , Ct. of Cl. No. 2004

- 01419, 2005

- Ohio

7018

. C ason and Love did not in itiate a physical attack , but ins tead, both Cason and Love joined the affr ay only after Al lison hit plaintiff

. A dams v. Ohio Dept. of Rehab. & Corr ., Ct. of Cl. No. 2013

- 00140 , ( July 26, 2016) (finding that officers were not entitl ed to civil immu nity where they engaged in a coordinated , planned, and unprovoked attack on the plaintif f). {¶33} Moreover , it was not established that Cason and Love w ere connected to o r
were co consp irators in a scheme to allow inmates to smoke in exchange for good s. Although Cason and Love both subsequently plead guilty to criminal violations arising ou tCas e No. 2020

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- DECISION

of thi s incident, a criminal violation alone does not automatically remove an empl oy ee from the scope a nd cou rse of employment

. McCombs v. Ohio Dept. of Dev. Dis abilities , 10th Dist. Frankl in No. 21AP

- 280, 2022

- Ohio

- 1035, ¶¶ 12

- 20

. Beca use it do es not ap pear th a t Cason and Love were co conspirators with Allison , and becaus e Cason and L ove on ly

re act ed after a ph ysica l altercation commenced between Allison and plaintiff , coming to the aid of Allison , the magistrate concludes that Cason and Love did not act with malic ious purpose, in bad faith , or in a wanton or reckless manner. {¶34} Based on t he foregoing, th e magistra te finds that, at all times relevan t, Korday R. Allison acted manifestly outside the scope of his employment. Therefore, it is recommended that the court is sue a determination that Allison i s not entitled to civil immunity pursua nt to R.C . 9.8 6 and 2743 .02 ( F) and that the courts of common pleas have jurisdiction over any civil actions tha t may be filed against him based upon the allegations of this c ase. The magi strate further finds that , at al l times relevant , Jovan Cason and Pa ris C. Love ac t ed within th e scope of th eir employment. Theref ore, it i s recommended that the court issue a determination t hat Cason and Love are entitled to civil immunity pu rsuant to R.C . 9 .86 and 2743.02(F) and that the courts of common pleas do not ha ve jurisdictio n over any ci vil actions th at may be filed agains t them ba sed upon the allegations of this case. {¶35} A party may file written objections to the magistrate’s deci sio n within 14 d ays of the filing of the decision, whether or not the court has adopt ed the decisio n during that 14

- day peri

od as p ermitted by Civ .R. 53(D)(4

)(e)(i). If any party timely files objections, any other party may also file obj ections not later tha n ten day s af ter the first objections are filed. A party shall not assign as erro r on appeal th e court’s ado p tion of any factua l finding or le gal conclus ion, 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 obj ects to that factual fin ding or legal conclusio n wi t hin 14 days of the filing of the decision,

a s required by Civ.R. 53(D)(3)(b).Cas e No. 2020

- 00718JD

- 14

- DECISION

GARY PETERSON Magistrate

Filed May 4 , 2022 Sent to S.C. Reporter 7/ 11 /22