Summary
In Mason v. Ohio Department of Rehabilitation and Corrections, 62 Ohio Misc. 2d 96, 102, 593 N.E.2d 482, 487 (Ct. Cl. 1990), the force used against the plaintiff was minor but there was also no excessive force found.
Summary of this case from James v. EmmensOpinion
No. 89-05937.
Decided September 17, 1990.
Stephen S. Mazzei, for plaintiff. Anthony J. Celebrezze, Jr., Attorney General, and Sally Ann Walters, Assistant Attorney General, for defendant.
On March 12, 1990, this matter came to trial before a referee of this court. On July 30, 1990, the referee issued a report, attached hereto as an appendix, wherein he found that the plaintiff failed to sustain his burden of proof and recommended that judgment be rendered for defendant.
Civ.R. 53 states that "[a] party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report." Plaintiff filed an objection to said report and requested an oral hearing on said objections. The court does not deem an oral hearing necessary and DENIES plaintiff's request.
Upon review of the record, and the referee's report, it is the court's finding that the referee was correct in his analysis of the issues and application of the law. Accordingly, this court adopts the referee's report and recommendation as its own.
Judgment is hereby rendered for defendant. Defendant shall pay the court costs of this action. The Clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
Judgment accordingly.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.
APPENDIX
R. MICHAEL SMITH, Referee.
Findings of Fact and Conclusions of Law
This case arises from events which occurred on May 18, 1988. On that date, plaintiff James Mason was incarcerated at the Ohio State Reformatory ("OSR"), located in Mansfield, Ohio. This prison facility is owned and operated by defendant Ohio Department of Rehabilitation and Correction. Plaintiff was assigned to perform tasks in the prison furniture factory supervised by Corrections Officer William L. Crouthers. Crouthers was the assigned floor supervisor for that area. On the morning of May 18, 1988, an unknown inmate placed individual signs on the backs of several other inmates. These signs ascribed various insulting attributes to the wearers and were placed upon their backs without their knowledge or acquiescence. Eventually, a similar sign was placed upon the back of Crouthers.
Shortly thereafter, an inmate informed Crouthers that plaintiff and/or inmate William Cooper were the persons responsible for such unauthorized activities. Crouthers immediately approached the pair and, after ordering Cooper back to his assigned work area, instructed plaintiff to go into the shop area's central office. Plaintiff apparently inquired as to the nature of his offense. Crouthers turned plaintiff in the direction of the office and then began to push him along using a short piece of furniture wood. As they walked toward the office, Crouthers swung the piece of furniture wood so that it struck a door frame at the level of plaintiff's head, just as plaintiff passed through the frame. Once inside the office area, Crouthers forced plaintiff to sit down onto a wooden bench.
On March 26, 1989, plaintiff filed the within action, asserting that he had been injured both emotionally and physically by Crouthers' conduct. The complaint avers that Crouthers struck plaintiff in the back with a stick, swung repeatedly at plaintiff's head and "grabbed violently and tore at plaintiff's person." As to injuries, it was alleged that plaintiff received "acute contusions and injury to his person that will require medical attention into the future," and also that he experienced, and continues to suffer, pain and psychological trauma.
Pursuant to Civ.R. 53(A), a referee was appointed by a judge of the Court of Claims to hear the matter. On March 12, 1990, the cause was heard at OSR. Additional testimony was taken on April 18, 1990 at the offices of the Court of Claims in Columbus, Ohio. The following determination is based upon the evidence presented, construed in light of the applicable law.
The first issue to be considered is whether the alleged acts of defendant constituted the proximate cause of the injuries asserted by plaintiff. Plaintiff contended at trial that he sustained a broken tailbone when he was forced down onto the wooden bench. It was also declared that certain observed and documented mid-back injuries, apparently inflicted by defendant's employee, were the direct cause of plaintiff's lower back pain.
The evidence at trial established that, on the day following the incident at issue, plaintiff reported to medical authorities and complained of pain in the upper middle part of his back. An examination by the prison physician, Dr. Francisco Buendia, indicated that plaintiff had sustained a slight contusion (bruise) and also a slight abrasion (scraping of skin), both of which were located in the middle part of his back. The doctor ordered that Tylenol be given to plaintiff.
The medical records and testimony of prison medical personnel indicate that on May 28, 1989, more than one year after the incident at issue, plaintiff complained of pain in the lower part of his back. However, plaintiff testified that he had made regular complaints of the lower back pain to the medical staff from the time of his initial injury until the first mention of such in the official medical records.
After being advised that plaintiff claimed to be experiencing pain in the lower back area, Dr. Buendia referred plaintiff to several outside specialists. He was examined by them and subjected to a number of tests including X-ray and bone scan. They determined conclusively that plaintiff had not sustained a physical injury, certainly not a broken tailbone. Also, no specific source of the lower back pain could be identified.
The only medical opinion presented by plaintiff was that of Dr. Buendia. The physician stated that there was no causal relationship between plaintiff's lower back pain complaints and the events of May 18, 1988. Further, there was considerable evidence that, over the course of the following year, plaintiff had been involved in other incidents of violence during which he was personally assaulted and injured. It is therefore concluded, based upon the preponderance of the credible evidence, that no relationship exists between the events of May 18, 1988 and plaintiff's subsequent complaints of lower back pain. Moreover, it is concluded that plaintiff's sole physical injuries were those relatively minor ones for which he was treated on May 19, 1988.
A broad reading of the complaint, in conjunction with certain statements made at trial, indicates that plaintiff alleges both emotional injury and/or a cause of action for the infliction (intentional or negligent) of serious emotional distress. See, generally, Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666; Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4 OBR 376, 447 N.E.2d 109. In plaintiff's view, the slight bruising and scraping of the middle part of his back, associated with the claimed excessive use of force, constitute sufficient injury to support an award of damages for emotional trauma. Also, the mere act of swinging toward plaintiff's head, which resulted in a loud noise on the door frame, is asserted to have been sufficient to cause him to fear for his safety.
As to the cause of action based upon the intentional infliction of serious emotional distress, the cases are in accord that liability cannot be imposed unless the defendant has committed an "extreme and outrageous act." Yeager, supra. Such an act is characterized as more than merely intentional or tortious, and must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Yeager, supra, 6 Ohio St.3d at 375, 6 OBR at 426, 453 N.E.2d at 671, quoting Restatement of the Law 2d, Torts (1965) 71, Section 46(1).
A review of the evidence presented at trial indicates that no such act occurred. In the context and circumstances presented here, it is not unusual that physical contact will occur between guards and inmates. It cannot be said that the force used caused so great a harm or was of such a degree as to be considered extreme. Likewise, plaintiff was not possessed of some particular susceptibility or weakness which defendant specially exploited. Consequently, Crouthers' actions in handling the situation cannot here be characterized as extreme or outrageous and the preponderance of the evidence indicates that no intentional infliction of serious emotional distress occurred.
Turning now to the requirements of negligent infliction of serious emotional distress, it would appear that, pursuant to Binns v. Friedendall (1987), 32 Ohio St.3d 244, 513 N.E.2d 278, a plaintiff need not prove severe and debilitating injury when he suffers a contemporaneous physical injury. In the present case, plaintiff appears to have suffered such contemporaneous harm, even though very slight, as would invoke the rule of Binns. Nevertheless, plaintiff must show some degree of psychic injury which may be described as "serious," for that is the very essence of the distinction between damages which are psychological and a cause of action premised upon an emotional impact. As set forth in Schultz, supra, as well as the Restatement, supra, and many other cases, the very definition of this cause of action includes the requirement that the negligence must cause " serious emotional distress." (Emphasis added.) Schultz, supra, at paragraph one of the syllabus; Jackson v. Wooster Bd. of Edn. (1985), 29 Ohio App.3d 210, 29 OBR 254, 504 N.E.2d 1144.
A review of the evidence presented at trial indicates that plaintiff's asserted psychic injury was not so grave as to constitute "serious emotional distress." Plaintiff did not indicate any particular emotional or mental crisis which may be said to have resulted from the incident. Nor did he experience any of a number of symptoms associated with such injury. Furthermore, no medical or psychological testimony was presented on this issue. It is therefore concluded that, while admittedly plaintiff may have suffered some fear during the incident, such was of the temporary variety and soon passed. The preponderance of the evidence indicates that defendant did not negligently inflict serious emotional distress upon plaintiff.
The question remains whether Officer Crouthers used an excessive amount of force, that is, force which is characterized as excessive under the circumstances. Plaintiff's central contention is that Officer Crouthers, without privilege to do so, used force upon plaintiff's person which was excessive. A review of the applicable law indicates that corrections officers have a privilege to use force upon inmates under certain conditions. See, e.g., Thomas v. Ohio Dept. of Rehab. Corr. (1988), 48 Ohio App.3d 86, 548 N.E.2d 991; Ohio Adm. Code 5120-9-01. 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. Skinner v. Brooks (1944), 74 Ohio App. 288, 42 Ohio Law Abs. 216, 29 O.O. 437, 58 N.E.2d 697. Force may be used to control or subdue an inmate in order to enforce the institution's rules and regulations. Ohio Adm. Code 5120-9-01(C) and (E). 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. Thomas, supra, 48 Ohio App.3d at 89, 548 N.E.2d at 994.
The evidence upon the precise amount of force used was well established at trial. After ordering plaintiff into the office, Crouthers forced plaintiff to turn toward the office, pushed him in that direction with a piece of furniture wood, swung the wood so that it struck near plaintiff, creating a loud noise, and pushed him down upon the bench. Ohio Adm. Code 5120-9-02(A)(4) defines the term "slight force" as consisting of a struggle with an inmate, pushing or exerting physical control over an inmate or physically restraining an inmate. Based upon the small injuries which plaintiff sustained and in light of the minor actions taken by Officer Crouthers, it is concluded that he used only slight force.
It must next be considered whether the use of such force was excessive under the circumstances. Upon the evidence, it appears that the events of that morning had created a tense situation, one that posed a risk to the physical safety of both Officer Crouthers and plaintiff. The evidence at trial indicated that there were forty to fifty other inmates present in the furniture shop and within proximity of plaintiff at the time of the incident. All of these inmates were free to move about and had access to tools and lengths of wood. Additional guards were not within the immediate work area. A corrections officer in such a situation is justified in fearing that a violent situation may develop from a single inmate's rebellion. Should the officer lose control of a confrontation, real or apparent, between an officer and an inmate, other inmates could easily become involved. Moreover, in the present case, insulting labels had been affixed to a number of prisoners and there was some likelihood that they would have sought retaliation, given an immediate opportunity.
The evidence indicated that plaintiff failed to immediately comply with the officer's command to go into the office. Therefore, Officer Crouthers was faced with a situation which required an immediate decision and response. As a matter of law, his response was not excessive under the circumstances as to the amount or type of force used. The preponderance of the evidence indicates that the officer's intent was to move plaintiff toward the office and to keep him moving in that direction. It is likely that plaintiff may only have been protesting his innocence. Nevertheless, by not immediately complying with the officer's order and, perhaps worse, by deliberately contending at that time with the officer's conclusions, plaintiff inmate created a risk that the immediate situation would escalate and involve other inmates. Accordingly, it is recommended that judgment be entered in favor of defendant.