[Cite as Evans v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-475.]




WILLIAM H. EVANS, JR                                  Case No. 2019-00505JD

       Plaintiff                                      Judge Patrick M. McGrath
                                                      Magistrate Gary Peterson
       v.
                                                      ENTRY GRANTING DEFENDANT’S
OHIO DEPARTMENT OF                                    MOTION FOR SUMMARY JUDGMENT
REHABILITATION AND CORRECTION

       Defendant
       {¶1} On September 3, 2019, defendant filed a motion pursuant to Civ.R. 56(B) for
summary judgment.             On September 11, 2019, plaintiff filed a memorandum in
opposition, wherein he asserts that, as of September 6, 2019, he had not yet received a
copy of defendant’s motion.1 Neither party filed any additional briefing. Defendant’s
motion for summary judgment is 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

         1Defendant’s motion included a certificate of service indicating that on September 3, 2019, a copy

of the motion was mailed via regular U.S. mail to plaintiff. The Civil Rules contemplate that service via
U.S. mail may require three days for delivery. Civ.R. 6(D). Therefore, it is likely that defendant’s motion
was still in the process of being delivered to plaintiff.
Case No. 2019-00505JD                            -2-                                         ENTRY


Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6,
citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
       {¶4} On April 15, 2019, plaintiff, an inmate at the Northeast Ohio Correctional
Center (NEOCC), filed a complaint against defendant, the Ohio Department of
Rehabilitation and Correction (DRC). In his complaint, plaintiff generally alleges that
irregularities and delays in the distribution of his prescription medication, prescription
refills, and prescription renewals have caused him to be injured.                 As a part of his
complaint, plaintiff attached as an exhibit, among other things, a complaint and
supplemental pleading that he filed in the Mahoning County Court of Common Pleas.
Plaintiff provides that those attachments are “wholly inclusive to this complaint, pursuant
to Civ.R. 10(C).” Complaint at page 1.2
       {¶5} In the attached complaint filed in the common pleas action, plaintiff details
occurrences and difficulties he has endured regarding obtaining his prescription
medication while at NEOCC. The common pleas action was filed against NEOCC,
CoreCivic America Corporation/Correctional Corporation of America, Mr. La Rose,
warden of NEOCC, and Diamond Pharmacy Services. Plaintiff asserts that “NEOCC is
a [privately] owned correctional corporation,” that “Diamond Pharmacy Services
Defendant,     is   a    corporation     which    contracts     further   with    Core     Civic   of
America/Corrections Corporation of America (CCA),” and that “CCA is most accurately
defined as a ‘Contractor’ for ODRC, rather than an ‘Agent.’” Complaint at page 20.
Nevertheless, plaintiff’s complaint maintains that DRC is responsible for the acts of
employees of CoreCivic and/or Diamond Pharmacy Services at NEOCC.
       {¶6} In its motion, DRC argues that the warden and medical staff at NEOCC are
employees of the private corporation CoreCivic. DRC maintains that it is not liable for
any alleged negligence of its independent contractors and that NEOCC is privately

       2Citations  to plaintiff’s complaint use the page numbers from the PDF uploaded to the court’s
docket as there are several conflicting page numbers throughout the complaint and attachments thereto.
Case No. 2019-00505JD                       -3-                                    ENTRY


owned and operated by CoreCivic.        DRC asserts that CoreCivic is an independent
contractor rather than an agent of DRC.
       {¶7} Regardless of how plaintiff characterizes the nature of his complaint, it
appears his claims arise out of allegations that employees at NEOCC failed to properly
dispense his mediation and/or failed to timely renew/refill his medications. Such claims
arise out of alleged negligence, either ordinary or medical.
       {¶8} “To recover on a negligence claim, a plaintiff must prove by a
preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a
defendant breached that duty, and (3) that the breach of the duty proximately caused a
plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP-
357, 2006-Ohio-2531, ¶ 10.
       {¶9} “Generally, an employer or principal is vicariously liable for the torts of its
employees or agents under the doctrine of respondeat superior, but not for the
negligence of an independent contractor over whom it retained no right to control the
mode and manner of doing the contracted-for work.” Clark v. Southview Hosp. & Family
Health Ctr., 68 Ohio St.3d 435, 438 (1994).
       {¶10} “The Ohio Supreme Court has set out a test to distinguish an agency
relationship (sometimes also referred to as a master-servant relationship) from an
employer-independent contractor relationship: ‘Did the employer retain control of, or the
right to control, the mode and manner of doing the work contracted for? If he did, the
relationship is that of principal and agent or master and servant. If he did not but is
interested merely in the ultimate result to be accomplished, the relationship is that of
employer and independent contractor.’” Title First Agency, Inc. v. Xpress Closing Serv.,
Inc., 10th Dist. Franklin No. 03AP-179, 2004-Ohio-242, ¶ 11, quoting Councell v.
Douglas, 163 Ohio St. 292 (1955), paragraph one of the syllabus.
       {¶11} “In determining whether an employer has the degree of control necessary
to establish agency, courts examine a variety of factors, including: whether the
Case No. 2019-00505JD                      -4-                                    ENTRY


employer or individual controls the details of the work; whether the individual is
performing in the course of the employer’s business rather than in an ancillary capacity;
whether the individual receives compensation from the employer, and the method of
that compensation; whether the employer or individual controls the hours worked;
whether the employer or individual supplies the tools and place of work; whether the
individual offers his services to the public at large or to one employer at a time; the
length of employment; whether the employer has the right to terminate the individual at
will; and whether the employer and individual believe that they have created an
employment relationship.” Wright v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin
No. 14AP-153, 2014-Ohio-4359, ¶ 10.
      {¶12} In support of its motion, DRC submitted the affidavit of Stuart Hudson.
Hudson avers as follows:
      2.     I have been employed with Defendant, the Ohio Department of
Rehabilitation and Correction (“DRC”) since 1994. I currently serve as the Assistant
Director of DRC. As Assistant Director, my job duties include: Direct operations of major
divisions to include: prisons, court and community services, holistic services, personnel,
labor relations, administration and training. Assist the Director in supervising all
operations of the Department through assigning duties and responsibilities to various
division and institutions. Define agency goals and objectives, formulate policies,
procedures and Administrative Rules necessary for the efficient management and
operation of the Department. Act on behalf of the Director in her absence.
      3.     The Warden, the correctional officers, and medical staff at the Northeast
Ohio Correctional Center (NEOCC) are employees or agents of CoreCivic.
      4.     CoreCivic, independent from DRC and the State of Ohio, maintains and
operates NEOCC pursuant to a contract with DRC.
      5.     CoreCivic maintains the premises of NEOCC and is responsible for
procuring the equipment and supplies necessary to operate it.
Case No. 2019-00505JD                       -5-                                   ENTRY


       6.     While CoreCivic operates and maintains NEOCC in accordance with
contractual and statutory criteria, it does so independently.
       7.     DRC is not involved in CoreCivic’s decision-making and does not control
the details of the work.
       8.     DRC employees are not involved in the institution’s daily operations nor
does DRC play any part in hiring, paying, supervising, disciplining, or terminating
CoreCivic’s employees.
       9. CoreCivic controls the hours worked and amount paid to each of its
employees.”
       {¶13} Plaintiff, however, did not submit evidence to rebut that submitted by
defendant. Civ.R. 56(E) provides “[w]hen a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon mere allegations
or denials of his pleadings, but the party’s response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine issue
for trial. If the party does not so respond, summary judgment, if appropriate, shall be
entered against the party.”
       {¶14} Additionally, the attachments to plaintiff’s complaint, which he incorporated
into his complaint, allege that CoreCivic is an independent contractor and not an agent
of DRC and that Diamond Pharmacy Services is an independent contractor, rather than
an agent of CoreCivic. The only evidence before the court is that CoreCivic controls the
daily decision-making and details of the work at NEOCC and that DRC is not involved in
hiring, paying, supervising, disciplining, or terminating CoreCivic’s employees.
CoreCivic maintains the premises of NEOCC and controls the hours worked and
amount paid to its employees. Therefore, there is no dispute that CoreCivic is an
independent contractor and not an agent of DRC. DRC cannot be held liable for the
negligence of its independent contractors. Clark at 438.
Case No. 2019-00505JD                       -6-                                    ENTRY


        {¶15} For the foregoing reasons, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. 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.




                                           PATRICK M. MCGRATH
                                           Judge


Filed January 7, 2020
Sent to S.C. Reporter 2/12/20
