[Cite as Scott v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-6326.]




                                                         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



AARON SCOTT
    Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


        AND


LARRY SOLOMON
    Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


        AND


ANTHONY MOODY
    Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant

        AND

JAMEEL HAAMID
    Plaintiff

       v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


JOHN W. FORESTER
     Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


THOMAS STALLINGS
    Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


LAVANCE TURNAGE
    Plaintiff

    v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


FRANK E. TYSON
    Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
      Defendant


      AND


JOSEPH N. WILLIAMS
     Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


      AND


MICHAEL EVANS
    Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant

Case Nos. 2011-11157, 2011-11165, 2011-11173, 2011-11432, 2011-12056, 2011-
12137, 2011-13061, 2011-13249, 2012-01554, 2012-02089

Judge Alan C. Travis
Magistrate Matthew C. Rambo

DECISION

      {¶ 1} On April 27, 2012, the parties filed cross-motions for summary judgment
pursuant to Civ.R. 56(A) and (B).      On May 22, 2012, plaintiffs filed a response to
defendant’s motion. On June 15, 2012, defendant filed a response to plaintiffs’ motion.
On June 22, 2012, plaintiffs filed a reply. The motions are now before the court for a
non-oral hearing pursuant to L.C.C.R. 4(D).
      {¶ 2} Civ.R. 56(C) states, in part, as follows:
      {¶ 3} “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 fact 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 or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶ 4} Plaintiffs are ten inmates in the custody and control of defendant at the
Mansfield Correctional Institution (ManCI) who allege that defendant is responsible for
the release of private medical information. Plaintiffs are either being treated for the
human immunodeficiency virus (HIV) or are “chronic care” patients and they allege that
ManCI negligently released a list of all such inmates “to the general population” at
ManCI. Plaintiffs assert that the list at issue was widely circulated at ManCI, that they
suffer “taunts, harassment, threats, emotional distress, anxiety, and fear” as a result,
and that other inmates now believe that all of the patients on the list, including the
chronic care patients, are HIV positive.
       {¶ 5} Plaintiffs argue that defendant committed an invasion of plaintiffs’ privacy by
disclosing private medical information to a third party without the authorization or
privilege to do so.    Plaintiffs further argue that defendant’s security and disposal
procedures with respect to confidential medical records are inadequate and that they do
not comply with the “Stipulation for Injunctive Relief” agreement that defendant entered
into in Fussell v. Wilkinson, S.D.Ohio No. 1:03-cv-704 (Nov. 5, 2005).           Defendant
argues that plaintiffs have asserted constitutional claims over which this court lacks
jurisdiction and, in the alternative, that plaintiffs’ claims fail because defendant’s
employees did not “disclose” the information.
       {¶ 6} The deposition transcripts of Sharon Welch and inmates Phillip Kukla and
Kenneth Kirks were filed by plaintiffs. Kirks testified that while picking up trash in the
loading dock area as part of his kitchen duties, he found a list of names and numbers of
other inmates who were identified as having received treatment for HIV.              (Kirks
Deposition Exhibit 2.) According to Kirks, he was using a power washer to clean under
a dumpster and the list “blew out” from underneath. Kirks stated that he then showed
the list to Kukla, whose cellmate was on the list, and who then made copies of the list
that were disseminated throughout the ManCI inmate population.1
        {¶ 7} Kukla offered a different version of the circumstances surrounding the
discovery of the list. In his deposition, Kukla testified that Kirks lied about giving him the
list and that he has never possessed a copy of the list. According to Kukla, he and
Kirks were not cleaning the area when Kirks found the list, but were loading food into a
freezer truck because the freezers in the kitchen were shut off. Kukla stated that Kirks
showed him the list after they were finished working, told him he found it on the loading
dock and described it as a “gold mine” that he could use to extort the inmates on the list.
Kukla testified that while he and Kirks were working, he witnessed Alice Cain, who was
then the ManCI Healthcare Administrator, escort an inmate worker who threw a large
bag of trash into the dumpster and that there was “always paper flying” in the loading
dock area. He further testified that Kirks would go into the dumpster and look through
the trash “all the time” for contraband that had been thrown away by corrections officers.
        {¶ 8} Sharon Welch worked at ManCI as a pharmacy technician filling inmate
prescriptions in June 2011. Welch testified at her deposition that she used a list with
inmates’ names on it to fill prescriptions for both HIV and chronic care patients. She
stated that the list in question was one such list that she had used to fill prescriptions
and then thrown into the trash can in the pharmacy. According to Welch, she then
emptied the trash can into a trash bag, set the bag outside the back door of the
pharmacy, then an inmate worker collected it and took it to the dumpster, at which point
“any inmate” would have access to it. Welch testified that there was no specific policy
or procedure in place at the time regarding the disposal of the list, but that one has
since been implemented. Welch stated that Ms. Cain made her aware that the list had
been circulated among the inmates, but that she is unaware of any other incidents
regarding inmate medical records in her prior 16 years of employment at ManCI.2




        1
         Additionally, plaintiff Tyson amended his complaint to include a claim whereby another ManCI
inmate came into possession of the documents relating to Tyson’s mental health treatment, made copies
of those documents, and posted them to the ManCI library and recreation areas. He does not allege how
the inmate came into possession of the documents.
        2
         Plaintiffs also provided the affidavit of Haamid; however, it is clear that none of the averments
contained therein, other than his identification and authentication of a copy of the list previously identified
by Kirks, are based on his personal knowledge and will not be considered by the court.
       {¶ 9} In support of its motion, defendant filed affidavits from Alice Cain, E.
Hermann, and Welch. Cain states she was employed at ManCI as the Healthcare
Administrator at the time of the incident and that:
       {¶ 10} “3. On January 7, 2011, Marilyn Christopher, RN2, generated a chronic
care list of inmates receiving medications normally prescribed to individuals with [HIV];
       {¶ 11} “4. Not all the inmates named on the chronic care list were HIV positive.
Some inmates are on the list only because they receive the same or similar
medications;
       {¶ 12} “5. The chronic care list is not part of the inmates’ medical record;
       {¶ 13} “6. It is very important for HIV patients to closely follow their drug
regimens, and so the pharmacy reviews this list to ensure that these inmates are
regularly receiving their medications;
       {¶ 14} “7. Also, these medications represent some of the [most] costly
medications administered by [defendant]. Maintaining a chronic care list of inmates
receiving these medications allows [defendant] to control its stock, adjust inventory
accordingly, and help control costs of treating these inmates;
       {¶ 15} “8. It is the typical practice of [defendant’s] pharmacy to dispose of its
trash with other trash from the health care center;
       {¶ 16} “9. Trash to be disposed is kept in a back hallway, and a [member of
defendant’s staff] must unlock the door that leads to an outside dumpster. That staff
person would either dispose of the trash him/herself or supervise the inmate porters
disposing of the trash. The door to the outside dumpster would then be relocked;
       {¶ 17} “10.                        That dumpster would then be taken to a locked
dumpster, where its contents would be disposed of again;
       {¶ 18} “11.                        Inmates Kirks and Kukla were not inmates
working in the health care center;
       {¶ 19} “12.                        Inmates [Kirks and Kukla] would have had to
go through the dumpster of trash bags, opened the trash bags, and then searched
through the trash bags to find the chronic care list that they later disseminated.”
       {¶ 20} In her affidavit, Welch clarifies that at the time her deposition was taken
she did not have personal knowledge of the trash collection procedures at ManCI
beyond placing the trash bag outside of the pharmacy door and that her statement that
“any inmate” had access to the trash was speculation.
        {¶ 21} Corrections Officer E. Hermann averred that as part of his regular duties
he supervises inmates taking trash carts to the trash compactor for disposal. In his
affidavit, Hermann testified as to the regular trash disposal practice at ManCI, but did
not aver that the practice was in place during June 2011. Therefore, his affidavit will not
be considered by the court.
        {¶ 22} While it is well-settled that the Court of Claims lacks subject matter
jurisdiction over claims based upon alleged violations of a constitutionally guaranteed
right to privacy, see Thompson v. S. State Community College, 10th Dist. No. 89AP-114
(June 15, 1989); Burkey v. S. Ohio Corr. Facility, 38 Ohio App.3d 170 (10th Dist.1988),
“[i]n Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a
third party of nonpublic medical information that a physician or hospital has learned
within a physician-patient relationship.” Biddle v. Warren Gen. Hosp., 86 Ohio St.3d
395, 1999-Ohio-115, paragraph one of the syllabus.                   The Supreme Court of Ohio
recognized the tort in Biddle based upon the policy that “[i]n general, a person’s medical
records are confidential. Numerous state and federal laws recognize and protect an
individual's interest in ensuring that his or her medical information remains so.”
Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, ¶ 9.
“Indeed, even a prison inmate’s personal medical records are qualifiedly protected from
disclosure and are not ‘public’ records per se.” Wilson v. Ohio Dept. of Rehab. & Corr.,
73 Ohio App.3d 496, 499 (1991).
        {¶ 23} This court has previously found liability where an employee of defendant
voluntarily disclosed an inmate’s private medical information to a third party without
authorization or privilege. See MacConnell v. Ohio Dept. of Rehab. & Corr., Ct. of Cl.
No. 2008-10528, 2012-Ohio-283.
        {¶ 24} The list at issue identifies plaintiffs Scott, Solomon, Moody, Haamid,
Stallings, and Williams as patients receiving HIV “protocol.”3 With              regard     to    these
plaintiffs, the court finds that the evidence presented establishes that nonpublic medical
information about such plaintiffs was obtained from defendant by third parties. The
question is whether the actions of defendant’s employees with regard to that information
constituted an “unauthorized, unprivileged disclosure” of that information. Indeed, the


        3
          The names and identifying information of plaintiffs Forester, Turnage, Tyson, and Evans does
not appear on the list at issue. Thus, no private information about such plaintiffs was disclosed and the
court finds that their claims are without merit.
court finds that MacConnell, Biddle, and Hageman hinged on whether there was an
affirmative act of disclosure of privileged information.              In this case, Welch did not
commit an affirmative act of disclosure, inasmuch as she merely placed the list in the
trash can, as she had done on numerous prior occasions. Therefore, the court finds
that defendant did not “disclose” private medical information to a third party without the
authorization or privilege to do so as it relates to the claims of these plaintiffs.4
        {¶ 25} To the extent that plaintiffs argue that defendant was negligent in the way
it disposed of the list and in its handling of trash in general, the Supreme Court of Ohio
has held that “[t]he language in R.C. 2743.02 that ‘the state’ shall ‘have its liability
determined * * * in accordance with the same rules of law applicable to suits between
private parties * * *’ means that the state cannot be sued for its legislative or judicial
functions or the exercise of an executive or planning function involving the making of a
basic policy decision which is characterized by the exercise of a high degree of official
judgment or discretion.” Reynolds v. State, 14 Ohio St.3d 68, 70 (1984); Von Hoene v.
State, 20 Ohio App.3d 363, 364 (1st Dist.1985). Prison administrators are provided
“wide-ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979).
        {¶ 26} The court finds that defendant’s decisions with respect to the procedures
for disposing of documents used by the pharmacy are characterized by the exercise of
a high degree of official judgment and discretion and that defendant is entitled to
discretionary immunity for claims arising therefrom.
        {¶ 27} Addressing plaintiffs’ arguments that defendant violated the “Stipulation for
Injunctive Relief,” entered into in Fussell, supra, the court finds that such agreement
was wide-ranging and dealt with a plethora of issues relating to the conditions under
which inmates in the state of Ohio are incarcerated. Included in the stipulation are
provisions to “assure the confidentiality” of inmates’ “health records.” Fussell, ¶ 119.
The stipulation remained in force until June 22, 2012, and included a mandatory dispute
resolution process for any dispute arising thereunder as to whether defendant was in
compliance with the stipulation. Fussell, ¶ 140-142; see also Greene v. Mohr, S.D.


        4
        Plaintiff Tyson failed to allege any improper disclosure of his mental health records, and did not
provide any evidence to establish that such a disclosure took place. Accordingly, his claim is without
merit.
Ohio No. 1:12-cv-144 (April 11, 2012).     Thus, this court is without jurisdiction to
adjudicate any claims arising from the Fussell agreement.
      {¶ 28} Based upon the foregoing, plaintiffs’ motion for summary judgment shall be
denied and defendant’s motion for summary judgment shall be granted. Judgment shall
be rendered in favor of defendant.
                                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



AARON SCOTT
    Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


LARRY SOLOMON
    Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


ANTHONY MOODY
    Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


    AND
JAMEEL HAAMID
    Plaintiff

     v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


JOHN W. FORESTER
     Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


THOMAS STALLINGS
    Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND

LAVANCE TURNAGE
    Plaintiff

    v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


     AND


FRANK E. TYSON
    Plaintiff

     v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant
      AND


JOSEPH N. WILLIAMS
     Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant


      AND

MICHAEL EVANS
    Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
     Defendant

Case Nos. 2011-11157, 2011-11165, 2011-11173, 2011-11432, 2011-12056, 2011-
12137, 2011-13061, 2011-13249, 2012-01554, 2012-02089

Judge Alan C. Travis
Magistrate Matthew C. Rambo

JUDGMENT ENTRY

      {¶ 29} A non-oral hearing was conducted in this case upon the parties’ motions
for summary judgment. For the reasons set forth in the decision filed concurrently
herewith, plaintiffs’ motion for summary judgment is DENIED and defendant’s motion for
summary judgment is GRANTED. Judgment is rendered in favor of defendants. All
previously scheduled events are VACATED.            Court costs are assessed against
plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.


                                         _____________________________________
                                         ALAN C. TRAVIS
                                         Judge
cc:


Kristin S. Boggs                    Richard F. Swope
Assistant Attorney General          6480 East Main Street, Suite 102
150 East Gay Street, 18th Floor     Reynoldsburg, Ohio 43068
Columbus, Ohio 43215-3130

005
Filed August 1, 2012
To S.C. Reporter January 17, 2013
