[Cite as Garrett v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-2176.]

                                                        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




RODERICK GARRETT

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-04858

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

DECISION




        {¶ 1} On February 3, 2010, the magistrate issued a decision recommending that
the court issue a determination that Henry Berlin is not entitled to civil immunity
pursuant to R.C. 9.86 and 2743.02(F) and that the courts of common pleas have
jurisdiction over any civil actions that may be filed against him based upon the
allegations in this case.           On April 5, 2010, the court adopted the magistrate’s
recommendation.
        {¶ 2} On February 25, 2010, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not file a response. Defendant’s motion is now
before the court on a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶ 3} Civ.R. 56(C) states, in part, as follows:
        {¶ 4} “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 County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶ 5} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Corrections Medical Center (CMC) pursuant to R.C. 5120.16. Plaintiff
alleges that on October 7, 2008, while he awaited transport from CMC to The Ohio
State University Medical Center, nurse Henry Berlin touched plaintiff in an inappropriate
sexual manner.       Defendant argues that inasmuch as Berlin is not entitled to civil
immunity, defendant cannot be held liable to plaintiff under the theory of respondeat
superior. The court agrees. Indeed, an employer is not liable under the doctrine of
respondeat superior for self-serving acts of employees that do not facilitate or promote
the employer’s business. Byrd v. Faber (1991), 57 Ohio St.3d 56, 59.
       {¶ 6} With regard to plaintiff’s remaining claim of negligent hiring, retention, or
supervision, the elements of such a claim are: 1) the existence of an employment
relationship; 2) the employee’s incompetence; 3) the employer’s actual or constructive
knowledge of such incompetence; 4) the employee’s act or omission causing plaintiff’s
injuries and 5) the employer’s negligence in hiring or retaining the employee as the
proximate cause of plaintiff’s injuries.   Evans v. Ohio State Univ. (1996), 112 Ohio
App.3d 724.
       {¶ 7} In support of its motion, defendant provided the affidavits of Ginny Hardin
and Cary Sayers. Hardin states in her affidavit:
       {¶ 8} “1.      I am employed as a full-time employee by Wise Medical Staffing,
Inc. (Wise) as the Staffing Manager.
       {¶ 9} “2.      I have personal knowledge of and I am competent to testify to the
facts contained in this Affidavit.
          {¶ 10} “3.      My job duties at Wise include recruiting and hiring employees to
work for various facilities, including [defendant].
          {¶ 11} “4.      Wise * * * is a staffing agency that provides medical professionals
to various facilities throughout the United States of America, including medical facilities
in Ohio such as [CMC] in Columbus, Ohio.
          {¶ 12} “5.      Henry Berlin submitted an employment application to Wise on
September 17, 2007 to work as a licensed practical nurse (LPN).                On or about
September 18, 2007, Wise began a background check to verify the credentials of Mr.
Berlin.
          {¶ 13} “6.      Wise’s background check included verification that Mr. Berlin had a
valid license with the State of Ohio as an LPN. Wise spoke with two of the professional
references Mr. Berlin listed on his application and both provided a favorable reference
for Mr. Berlin. The Ohio Bureau of Criminal Identification and Investigation performed
an investigation of criminal records which revealed no records of a criminal history by
Mr. Berlin. Wise checked the records of the Office of Inspector General, which did not
list any previous charges of abuse. Additionally, a drug test performed on Mr. Berlin
had negative results.
          {¶ 14} “7.      Mr. Berlin began his employment as an independent contractor with
Wise on December 31, 2007. He started work as an LPN on that very same day at
CMC, and shortly thereafter also performed work at CMC as a registered nurse (RN).
          {¶ 15} “8.      On October 23, 2008, CMC notified Wise that there was an
investigation surrounding a complaint made against Mr. Berlin. Also on that day, CMC
told Wise that Mr. Berlin was not to return to CMC. On October 28, 2008, Wise was
informed by the Ohio State Highway Patrol that the complaint against Mr. Berlin
involved the sexual abuse of two different inmates at CMC. Wise has no knowledge of
any other complaints whatsoever regarding Nurse Berlin prior to such date. The last
day Mr. Berlin performed work in connection with Wise was on October 22, 2008.
          {¶ 16} “* * *
          {¶ 17} “10.     Based upon Mr. Berlin’s education, licensure, prior work history,
reference checks, criminal check, and drug screening, Wise reasonably believed that
Mr. Berlin was fit and competent to perform work for CMC in his licensed capacity.
Wise had no indications and had no reason whatsoever to believe that Mr. Berlin would
sexually assault an inmate or behave in any manner other than that of a professional
LPN and RN.”
       {¶ 18} Sayers states in his affidavit:
       {¶ 19} “1.      I am currently employed as a full-time employee by [defendant] as
Corrections Warden Assistant 1, which is more commonly known as an investigator. I
work at CMC located in Columbus, Ohio.
       {¶ 20} “2.      I have personal knowledge of and I am competent to testify to the
facts contained in this Affidavit.
       {¶ 21} “3.      My job duties at [defendant] include investigating incidents
throughout the institutions, performing background checks on prospective * * *
employees, and inspector duties relating to the inmate grievance process.
       {¶ 22} “4.      [Defendant] formerly worked with [Wise] to gain referrals of
potential employees. * * * Wise referred Nurse Henry Berlin to [defendant] on or about
December 21, 2007 to work at CMC as a licensed practical nurse.
       {¶ 23} “5.      After Wise referred Mr. Berlin to [defendant] as a potential
employee, I investigated Mr. Berlin’s background utilizing the following resources:
$                   “The Department Offender Tracking System (DOTS) Portal was used
                    to determine if, in the approximately one year time period prior to the
                    date of inquiry, Mr. Berlin had been incarcerated in an Ohio prison
                    and/or had been in the visiting list of any then-current or former
                    inmates.
$                   “The Inmate Phone System was searched for the approximately one
                    year time period prior to the date of inquiry to see if any inmate in the
                    Ohio prison system had made phone calls to Mr. Berlin’s phone
                    number and whether such phone calls were accepted.
$                   “Records of the Franklin County Court of Common Pleas, the Ross
                    County Court of Common Pleas, the Scioto County Court of Common
                    Pleas, the Franklin County Municipal Court, the Chillicothe Municipal
                    Court, and the Portsmouth Municipal Court were searched for any
                    records relating to Mr. Berlin.
$                   “The Law Enforcement Automated Data System (LEADS) was
                    searched to ensure the validity of Mr. Berlin’s driver’s license and to
                    find out if there were any outstanding warrants for Mr. Berlin.
$                   “The National Crime Information Center (NCIC) was searched to find
                    out if Mr. Berlin had any records of criminal history nationwide.
       {¶ 24} “6.      Based upon my notes, nothing more than a speeding ticket was
discovered from all of the above-listed inquiries. Mr. Berlin had no criminal records or
any records that would lead me to question Mr. Berlin’s ethics or abilities.
       {¶ 25} “7.      Based upon the extensive research performed by both Wise and
[defendant] prior to Mr. Berlin’s employment at CMC and due to the absence of any
prior complaints, [defendant] had no reason to suspect that Mr. Berlin would sexually
assault an inmate.
       {¶ 26} “8.      Mr. Berlin was banned from all [of defendant’s] institutions once
[defendant] was notified of the allegations of misconduct made against him.”
       {¶ 27} Based upon the unrebutted affidavits provided by defendant, the only
reasonable conclusion to draw from the evidence is that defendant had no reason to
believe that Berlin would touch plaintiff or any other inmate in a sexually inappropriate
manner. Additionally, plaintiff presented no evidence which would call into question
either defendant’s training or supervision of nurse Berlin. Therefore, plaintiff’s claim of
negligent hiring, training, or supervision fails as a matter of law.                Accordingly,
defendant’s motion for summary judgment shall be granted and 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




RODERICK GARRETT
         Plaintiff

         v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

         Defendant
         Case No. 2009-04858

Judge Joseph T. Clark
Magistrate Matthew C. Rambo

JUDGMENT ENTRY




         A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.               For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                               _____________________________________
                                               JOSEPH T. CLARK
                                               Judge

cc:


Eric A. Walker                                     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

MR/cmd
Filed April 27, 2010
To S.C. reporter May 14, 2010
