[Cite as Dhalow v. Dept. of Rehab. & Corr., 2010-Ohio-3749.]

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

ABDURAHMAN MOHAMED DHALOW 

 Plaintiff 

 v. 

DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

Case No. 2009-05137 

Judge Alan C. Travis 

Magistrate Matthew C. Rambo 

MAGISTRATE DECISION

{¶ 1} Plaintiff brought this action alleging that an employee of defendant 

assaulted him. 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 April 23, 2010, defendant filed a motion to quash 

the subpoena issued to Larry Greene. On April 26, 2010, defendant filed an affidavit 

from Greene in support of the motion, wherein he states that he received the subpoena 

on April 26, 2010, one day before trial, but that he was scheduled to attend a mandatory 

training seminar on the day of trial. Upon review, defendant’s motion is GRANTED and 

the subpoena issued to Larry Greene is hereby quashed. 

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

defendant at the Southern Ohio Correctional Facility (SOCF) pursuant to R.C. 5120.16. 

Plaintiff testified that on February 17, 2009, a “commissary day,” he was permitted to 

purchase food items from the SOCF commissary. According to plaintiff, after he 

purchased several items from the commissary, an inmate in the cell above his lowered 
Case No. 2009-05137 - 2 - MAGISTRATE DECISION

a “line,” consisting of a sock tied to the end of a string, so that the two could exchange 

and share commissary items. Plaintiff admitted that such a line is considered 

contraband and not permitted under defendant’s rules. Plaintiff stated that during the 

transaction, corrections officer (CO) Philip Markins walked by his cell, saw the line, and 

“snatched” it before the other inmate had a chance to pull it back. Plaintiff testified that 

as a result of Markins’ actions, he “disrespected” Markins by calling him “every name I 

could think of.” According to plaintiff, Markins returned to the area shortly thereafter and 

sprayed him with two cans of chemical mace. Plaintiff asserts that Markins’ actions 

were unwarranted and excessive. 

{¶ 4} Plaintiff further testified that after the incident Markins wrote a conduct 

report wherein he alleged that after he passed plaintiff’s cell, he heard plaintiff call for 

“help”; that when he returned to plaintiff’s cell, plaintiff attempted to throw a cup of 

unknown liquid on him; that he sprayed plaintiff with a short burst of mace; that plaintiff 

again tried to throw the liquid at him; that he administered another short burst of mace; 

and that plaintiff then dropped the cup. (Plaintiff’s Exhibit 2.) The Rules Infraction 

Board (RIB) subsequently found plaintiff guilty of violating institutional rules by 

attempting to throw an unknown substance on Markins. However, on appeal, the 

warden’s assistant, Larry Greene, overturned the RIB decision. (Plaintiff’s Exhibit 1.) In 

his written decision, Greene found that the video recording of the incident showed 

Markins spray plaintiff without provocation; that the video did not show plaintiff 

attempting to throw liquid on Markins. Greene also states that the RIB withheld the 

video from plaintiff even though it was used by defendant as evidence against him. 

{¶ 5} A review of the video shows the “line” described by plaintiff hanging in 

front of his cell; a CO picking up the line and walking away from plaintiff’s cell; the CO 

returning to plaintiff’s cell less than 10 seconds later; the CO raising his arm and 

pointing it into plaintiff’s cell twice; and the CO leaving the area. From beginning to end 

the incident lasted approximately 30 seconds. Neither plaintiff nor the interior of his cell 
Case No. 2009-05137 - 3 - MAGISTRATE DECISION

can be observed on the video and the court is unable to precisely determine what 

occurred. (Defendant’s Exhibit L.) 

{¶ 6} Markins testified that after he picked up the line and walked away from 

plaintiff’s cell, he heard plaintiff “holler” for help. According to Markins, yelling for help is 

a well-known tactic that inmates use to get COs to come to the front of their cells, but 

that he nevertheless responded out of concern that plaintiff may have been harming 

himself. Markins testified that when he arrived in front of plaintiff’s cell, plaintiff was 

holding a cup containing an unknown liquid and stated “that’s my line bitch,” “eat this 

shit bitch.” Markins stated that he then administered “reactive force” and sprayed 

plaintiff with mace to stop him from throwing the unknown liquid. According to Markins, 

plaintiff made a second attempt to throw the liquid and he administered a second burst 

of mace whereupon plaintiff dropped the cup and Markins left the range. 

{¶ 7} Markins further testified that after he left the range, he notified his 

supervisor of the incident and that plaintiff was subsequently removed from his cell and 

taken to a segregation cell. Markins stated that the medical department was notified of 

the incident and that a member of the medical staff examined plaintiff while he was in 

segregation. (Defendant’s Exhibit J.) Markins testified that he then filed both a conduct 

report and an incident report, and that he also filled out a use-of-force cover sheet. 

(Plaintiff’s Exhibit 2, Defendant’s Exhibits D, E.) According to Markins, a use-of-force 

committee reviewed the incident and found that he used appropriate force during the 

incident and that the deputy warden of operations concurred with that finding. 

(Defendant’s Exhibit F.) 

{¶ 8} Linnea Mahlman is the Institutional Inspector for SOCF. Mahlman testified 

that her duties include reviewing inmate complaints and grievances. She stated that 

plaintiff filed a grievance following the incident and that she denied the grievance 

because the incident was pending before both the RIB and the use-of-force committee. 

According to Mahlman, the grievance process, the RIB, and the use-of-force committee 

are separate processes within the institution. However, she also stated that she 
Case No. 2009-05137 - 4 - MAGISTRATE DECISION

reviewed the video recording and conduct reports and that it was her opinion that 

Markins acted properly. 

{¶ 9} 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: 

{¶ 10} “(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: 

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

{¶ 12} “(b) Defense of another from physical attack or threat of physical attack; 

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

prison rules, regulations or orders; 

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

engaging in a riot or other disturbance; 

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

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

{¶ 17} 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.) 

{¶ 18} Based upon the evidence adduced at trial, the court finds that Markins 

was more credible than plaintiff. As a result, the court finds that Markins acted in self 
Case No. 2009-05137 - 5 - MAGISTRATE DECISION

defense when he administered chemical mace against plaintiff and that such force was 

not excessive. Accordingly, 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 

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 

Kristin S. Boggs 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Abdurahman Mohamed Dhalow, #527-094 

P.O. Box 45699 

Lucasville, Ohio 45699 

MR/cmd

Filed July 22, 2010 

To S.C. reporter August 11, 2010