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Appellate court orders new trial in prison killing case

Special to the Legal News

Published: February 17, 2016

In the 10th District Court of Appeals recently, a panel of three judges reversed a claims court judgment and ordered a new trial in a case brought by an inmate’s estate against the Ohio Department of Rehabilitation and Correction.

The estate of Mark Wayne Frash appealed the judgment of the Ohio Court of Claims, which ruled in favor of the Department of Rehabilitation and Correction on a claim arising from the death of Frash at the hands of fellow inmate, Eugene Groves.

Specifically, the court of appeals ruled that the ODRC had constructive notice that an attack from Groves was imminent and it had a duty to protect the inmates it housed from the likely actions of the violent inmate.

The reviewing court also held that the court of claims applied immunity to claims that were really about negligence and it improperly placed the burden of proving relevance on Frash’s estate when it came to psychiatric records that the claims court refused to admit into evidence.

In an opinion authored by Judge Jennifer Brunner and with the agreement of Frash’s estate, the appellate panel accepted the Court of Claims’ factual findings as true for the purposes of its review.

According to those records, Frash and Groves were both housed as inmates at the Ross Correctional Institution in September 2010.

On Sept. 12, Frash, who worked as a dog handler, was walking his dog out in the recreation yard when Groves threatened to kill the animal.

According to another inmate, Frash responded by stating he would kill Groves if he killed the dog.

Later, Frash sought Groves out and apologized but Groves walked away and went to his cell.

Shortly thereafter, Groves entered the day room and began attacking Frash with a shank that he fashioned out of a long screw.

The corrections officer in the unit at the time was Christopher Hawk, a relief officer who had started working at RCI only two weeks prior.

Upon seeing the fight and noticing that Groves had a weapon in hand, Hawk ordered the inmate to stop and drop the weapon.

Since he was relatively new and unfamiliar with the institution, Hawk was unaware of the proper number to call for backup — he pulled his man down alarm and waited for assistance but the fight was over by the time another CO arrived.

Hawk would later testify that he believed he was supervising a block of Level 2 inmates when, in fact, the security in the area was Level 3.

The entire incident lasted less than a minute but Frash died from traumatic brain injury caused by blunt force trauma to the head and an autopsy report noted several hematomas and a cerebral hernia.

According to court documents, Groves has a long history of violence and psychiatric issues.

In 1976, he was incarcerated for murder and several other related charges and an intake screening indicated that he “could be unstable” and had a “severe paranoid personality.”

From 1984 to 1999, Groves assaulted five other prisoners. In 1984, he stabbed an inmate in the chest with upholstery shears and was found not guilty by reason of insanity.

That same year, a psychologist suggested that Groves be very closely observed because he possibly suffered from paranoid schizophrenia.

In 1988, Groves stabbed his cellmate and bit off his lower lip, resulting in an attempted murder conviction. In 1994, he assaulted another inmate by using a can lid to cut his face and then attempted to slit his throat and throw him off a prison balcony.

Finally, in 1999, he used a shank to stab yet another inmate.

By the time Groves attacked Frash, he had not had a violent episode for 10 years and his security classification had been gradually lowered from a Level 5 to a Level 3 with a permanent single cell assignment.

Still, other inmates at the prison testified that Groves had a reputation for being a “crazy man.”

Considering the evidence, the court of appeals concluded that “the Court of Claims’ recitation of the facts leaves little room for disagreement on the issue of actual notice.”

Because prison officials had no knowledge or information that Groves held animosity toward Frash and it had been more than a decade since he had attacked anyone, the appellate panel agreed with the lower court that the ODRC did not have actual notice that an attack by Groves was impending.

However, with regard to constructive notice, the court of appeals was at odds with the claims court, holding that a number of problems within the institution made it easier for Groves to carry out his fatal attack.

“The corrections officer who was on duty at the time the attack commenced was an inexperienced relief officer who had started working at RCI only two weeks prior,” Brunner wrote, noting that Hawk did not know the correct phone numbers to call or even the proper security level of the block.

“In the context of these failings, Groves has a very extensive history of hurting his fellow inmates and was incarcerated in 1976 for violently injuring and killing other persons.”

The appellate panel noted that, as recently as Sept. 13, 2006, Groves threatened a female staff member at the prison when he stated that her life could be taken “in a split second.”

“Taken together, these circumstances bespeak a catastrophe waiting to happen,” Brunner wrote. “While it is true that Groves had not been involved in a physical altercation for approximately a decade, we have previously recognized that persons who suffer from paranoid schizophrenia have periods of relative quiescence and stability as well as periods of deterioration which, if not carefully monitored, can lead to episodic violence.”

Under the circumstances, the court of appeals held that the ODRC had constructive notice that, at any moment, an attack from Groves was likely and that it had a duty to protect its inmates from him.

The appellate panel also ruled that the Court of Claims erred by applying discretionary immunity to the ODRC because the situation illustrated a failure to follow policy and procedure.

Frash’s estate alleged that Hawk, an inexperienced guard, “acted improperly and fearfully in reacting to a fight and that the ODRC violated its policies in deciding to house an unstable and dangerous inmate like Groves in a Level 3 area.”

“While we recognize that Hawk, like all implementing employees, must exercise some discretion in carrying out his duties, we have previously explained the problem in finding immunity in these situations,” Brunner wrote. “Were we to find that discretionary immunity applies every time a state employee exercises discretion in performing his or her job, we would be vastly expanding the scope of the discretionary immunity doctrine.

“The appellate panel held that “insofar as the Court of Claims applied immunity to claims that are really about negligence in adhering to policies related to training, supervision and inmate placement, it erred.”

The reviewing court went on to uphold the estate’s final assignment of error, ruling that the lower court should have held an in camera inspection regarding the admission of Grove’s medical and psychiatric records.

By declining to admit them without a hearing, the court of appeals held that the claims court placed a burden on the estate “that was not its to carry.”

After sustaining all three of the estate’s assignments of error, the court of appeals reversed the judgment of the Court of Claims and remanded the case for a new trial.

Judge Gary Tyack concurred to form the majority and Presiding Judge Julia Dorrian dissented in part, disagreeing with the majority on the matter of constructive notice.

The case is cited Frash v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-360.

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