[Cite as Brooks v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-5277.]



                                                        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




ULIOUS BROOKS

       Plaintiff

       v.

OHIO DEPT. OF REHABILITATION AND CORRECTIONS

       Defendant

        Case No. 2012-04111-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF DISMISSAL

        {¶1}    On May 21, 2012, plaintiff, Ulious Brooks, filed a complaint against
defendant, Sergeant McCroskey, defendant’s correctional officer. On May 22, 2012,
this court issued a pre-screening entry dismissing Sergeant McCroskey as defendant
and requiring the plaintiff to file an amended complaint naming a state entity as a party
defendant. Plaintiff was also required to submit either the $25 filing fee or a poverty
statement.
        {¶2}    On May 25, 2012, plaintiff filed an amended complaint. Plaintiff alleges
that on or about April 16, 2012, his radio and headphones were stolen by Corrections
Officer Mullins. Plaintiff asserted that when he notified Sergeant McCroskey concerning
the theft, Sergeant McCroskey stole his CD player, altered it, wrongfully wrote him up
for a contraband violation, forged his signature on the conduct report and destroyed his
CD player without the benefit of a due process hearing.
        {¶3}    On June 5, 2012, this court issued an entry again dismissing Sergeant
McCroskey as defendant and finding plaintiff’s poverty statement valid for the purpose
Case No. 2012-04111-AD                    -2-                                     ENTRY

of waiving the filing fee only.
       {¶4}   On or about June 13, 2012, defendant was served with plaintiff’s
complaint. On August 21, 2012, this court issued an entry ordering the defendant to
submit the investigation report within 14 days of this entry.
       {¶5}   On August 20, 2012, plaintiff filed a motion for sanctions based on the
defendant’s failure to timely file the investigation report. Only a judge of the Court of
Claims has the authority to issue sanctions against a party.        Accordingly, plaintiff’s
motion is DENIED as the Deputy Clerk does not possess such power.
       {¶6}   On August 20, 2012, plaintiff filed motions for summary judgment and
default judgment.
       {¶7}   Civ.R. 56(C) states, in part, as follows:
       {¶8}   “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material facts and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can 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 to stipulation construed most strongly in the party’s favor.” See
Gilbert v. Summit Cty., 104 Ohio St. 3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St. 2d 317, 364 N.E. 2d 267 (1977).
       {¶9}   Plaintiff asserts that summary judgment should be granted in his favor
based on the defendant’s failure to timely submit the investigation report. However,
defendant’s investigation report was timely submitted pursuant to this court’s order of
May 25, 2011. A summary judgment against the defendant may not solely be granted
Case No. 2012-04111-AD                    -3-                                    ENTRY

based on procedural errors committed by the defendant. A review of the plaintiff’s
pleadings and attachments reveals that there is no genuine issue as to a material fact
and the plaintiff is not granted judgment as a matter of law.
       {¶10} Civ.R. 55(D) in pertinent part states:
       {¶11} “No judgment by default shall be entered against this state . . . or agency .
. . unless the claimant establishes his claim by a preponderance of the evidence.
Default judgment may not be granted against the state based solely on procedural
errors made by the defendant.       Dearing v. Ohio Department of Rehabilitation and
Correction, 2011-09560-AD (2011).
       {¶12} On September 7, 2012, defendant filed a motion for extension of time due
to staffing difficulties. On September 11, 2012 and October 24, 2012, plaintiff again
filed motions for default judgment based on the defendant’s failure to timely file the
investigation report.
       {¶13} After a review of plaintiff’s pleadings, plaintiff contends that C/O Mullins
and C/O McCroskey engaged in intentional conduct. Plaintiff asserts C/O Mullins stole
his radio and headphones, while C/O McCroskey stole his CD player, altered it, forged a
conduct report, and had his CD player unlawfully destroyed. In the context to determine
if defendant should bear responsibility for an employee’s wrongful act, a finding must be
made, based on the facts presented, whether or not the injury causing act was
manifestly outside the course and scope of employment. Elliott v. Ohio Dept. of Rehab.
& Corr., 92 Ohio App. 3d 772, 775, 637 N.E. 2d 106 (10th Dist. 1994); Thomas v. Ohio
Dept. of Rehab. & Corr., 48 Ohio App. 3d 86, 89, 548 N.E. 2d 991 (10th Dist. 1988); and
Peppers v. Ohio Dept. of Rehab. & Corr., 50 Ohio App. 3d 87, 90, 553 N.E. 2d 1093
(10th Dist. 1988). It is only where the acts of state employees are motivated by actual
malice or other such reasons giving rise to punitive damages that their conduct may be
outside the scope of their state employment. James H. v. Dept. of Mental Health and
Mental Retardation, 1 Ohio App. 3d 60, 61, 439 N.E. 2d 437 (10th Dist. 1980). The act
must be so divergent that it severs the employer-employee relationship. Elliott, at 775
Case No. 2012-04111-AD                     -4-                                        ENTRY

citing Thomas, at 89, and Peppers, at 90.
       {¶14} Malicious purpose encompasses exercising “malice,” which can be
defined as the willful and intentional design to do injury, or the intention or desire to
harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson
v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio App. 3d 448, 453-454, 602 N.E. 2d 663
(12th Dist. 1991); citing Teramano v. Teramano, 6 Ohio St. 2d 117, 118, 216 N.E. 2d
375 (1966); and Bush v. Kelly’s Inc., 18 Ohio St. 89, 217 N.E. 2d 745 (1969).
       {¶15} The Supreme Court of Ohio has established that an employer is liable for
the tortious conduct of its employee only if the conduct is committed within the scope of
employment and if the tort is intentional, the conduct giving rise to the tort must facilitate
or promote the business of which the employee was engaged. Byrd v. Faber, 57 Ohio
St. 3d 56, 565 N.E. 2d 584 (1991), citing Little Miami RR. Co. v. Wetmore, 19 Ohio St.
110 (1869), and Taylor v. Doctors Hosp., 21 Ohio App. 3d 154, 486 N.E. 2d 249 (10th
Dist. 1985).
       {¶16} Further, an intentional and willful tort committed by an employee for his
own purposes constitutes a departure from the employment, so that the employer is not
responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr., 79 Ohio App. 3d 303, 607
N.E. 2d 103 (10th Dist. 1992), citing Vrabel v. Acri, 156 Ohio St. 467, 103 N.E. 2d 564
(1952).   The facts of this case, taken as plaintiff asserted, would constitute an
intentional tort committed by defendant’s employee performed for his own personal
purpose. Following this rationale, plaintiff cannot maintain a cause of action against
defendant for the intentional malicious act of its employee.
       {¶17} Civ.R. 12(H)(3) states:
       {¶18} “Whenever it appears by suggestion of the parties or otherwise that the
court lacks jurisdiction on the subject matter, the court shall dismiss the action.
       {¶19} Based on plaintiff’s pleadings which assert the sole cause of his property
loss was defendant’s employees and since theft and forgery are actions beyond the
Case No. 2012-04111-AD                   -5-                                  ENTRY

scope of the employees employment, defendant as a matter of law is not responsible for
the criminal actions of its employees. Therefore, plaintiff’s complaint is DISMISSED.
Court costs are assessed against plaintiff.




                                               ________________________________
                                               DANIEL R. BORCHERT
                                               Deputy Clerk

Entry cc:

Ulious Brooks #453-172                         Trevor Clark
1724 State Route 728                           Department of Rehabilitation
Lucasville, Ohio 45699                         770 West Broad Street
                                               Columbus, Ohio 43222
DRB/laa
Filed 11/2/12
sent to S.C. Reporter 11/14/12
