[Cite as Harris v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-5714.]




                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Herman Harris, Jr.,                                    :

                 Plaintiff-Appellant,                  :
                                                                         No. 13AP-466
v.                                                     :             (Ct. of Cl. No. 2012-7587)

Ohio Department of Rehabilitation                      :            (REGULAR CALENDAR)
and Correction,
                                                       :
                 Defendant-Appellee.
                                                       :




                                           D E C I S I O N

                                   Rendered on December 24, 2013


                 Herman Harris, Jr., pro se.

                 Michael DeWine, Attorney General, and Frank S. Carson, for
                 appellee.

                             APPEAL from the Court of Claims of Ohio

KLATT, P.J.
        {¶ 1} Appellant, Herman Harris, Jr., appeals from a judgment of the Court of
Claims of Ohio granting summary judgment in favor of appellee, Ohio Department of
Rehabilitation and Correction.             Because reasonable minds can only conclude that
appellant's theory of proximate causation is premised solely on speculation and
conjecture, we affirm.
Facts and Procedural History
No. 13AP-466                                                                          2

      {¶ 2} Appellant is an inmate at the Hocking Correctional Facility ("HCF").
Appellant received a haircut at the HCF barber facility from inmate barber, William
Barnett. Approximately two or three days after his haircut, appellant's scalp became
tender in several places. Appellant received and applied an antibiotic ointment, but the
condition worsened over time.     Ultimately, appellant was diagnosed with a staph
infection—methicillin-resistant staphylococcus arueus infection ("MRSA").
      {¶ 3} Appellant filed a complaint in the Court of Claims of Ohio alleging that
appellee was negligent in maintaining sanitary conditions in the HCF barber facility and
that this negligence proximately caused appellant's injury. Ultimately, appellant and
appellee filed cross-motions for summary judgment. The trial court granted appellee's
motion for summary judgment and denied appellant's motion for summary judgment.
      {¶ 4} Appellant, appearing pro se, appeals assigning the following errors:
             [1.] THE PLAINTIFF/APPELLANT, HERMAN HARRIS, JR.,
             IN PRO SE, WAS DENIED "PROCEDURE DUE PROCESS"
             AND "EQUAL PROTECTION" OF LAWS BY THE
             MAGISTRATE JUDGE OF THE COURT OF CLAIMS OF
             OHIO.     PROCEDURE DUE PROCESS AND EQUAL
             PROTECTION OF LAWS WAS DENIED TO THE
             PLAINTIFF/APPELLANT WHEN THE COURT GRANTED
             SUMMARY JUDGMENT TO THE DEFENDANT/APPELLEE,
             WHEN THE DEFENDANT'S/APPELLEE'S WAS NOT
             ENTITLED TO SUMMARY JUDGMENT BY LAW. THERE
             IS A REAL DISPUTE AS TO WHETHER OR NOT THE
             OPERATION OF THE INMATE BARBERSHOP FACILITY
             AT THE HOCKING CORRECTIONAL FACILITY BEING
             OPERATED WITHOUT AN ADEQUATE SUPPLY OF HOT
             RUNNING WATER WAS A CONTRIBUTING FACTOR OF
             THE PLAINTIFF/APPELLANT BEING INFECTED WITH
             MRSA (STAPH) INFECTION AFTER RECEIVING A HAIR
             CUT IN THE INMATE BARBER SHOP FACILITY BEING
             OPERATED BY VIOLATION OF STATE LAWS.           THE
             PLAINTIFF/APPELLANT WAS DENIED "DUE PROCESS OF
             LAW AND EQUAL PROTECTION OF LAWS AS
             GUARANTEED BY THE FOURTEENTH AMENDMENT OF
             THE UNITED STATES CONSTITUTION, OHIO BILL OR
             RIGHTS: ARTICLE I, §§ 2 and 16, THEREBY COMMITTING
             REVERSIBLE ERROR.

             [2.] THE PLAINTIFF/APPELLANT   WAS    DENIED
             "PROCEDURE    DUE"   PROCESS   AND    "EQUAL
             PROTECTION" OF LAW WHEN THE MAGISTRATE JUDGE
No. 13AP-466                                                                           3

                FAILED TO ACCEPT AND/OR FAILED TO CONSIDER
                PLAINTIFF'S/APPELLANT'S ATTACHED EXHIBITS "A"
                THROUGH "G" ATTACHED TO HIS FORM COMPLAINT
                AND FAILED TO ACCEPT AND/OR FAILED TO CONSIDER
                PLAINTIFF'S/APPELLANT'S ATTACHED EXHIBIT "H" ON
                THE PLAINTIFF'S CONTRA MOTION TO DISMISS AND
                MOTION FOR SUMMARY JUDGMENT OHIO RULES OF
                CIVIL PROCEDURE 8 (D) AND 56 (c). THE MAGISTRATE
                JUDGE FAILING TO CONSIDER AND/OR FAILING TO
                ACCEPT PLAINTIFF'S/APPELLANT'S EXHIBITS AS SUP-
                PORTING EVIDENCE AND/OR ADMISSIBLE EVIDENCE
                AGAINST THE DEFENDANT'S/APPELLEE'S, THEREBY
                DENYING PLAINTIFF/APPELLANT THE FOUNDMENTAL
                FAIRNESS IN A CIVIL PROCEEDING IN DIRECT
                VIOLATION OF THE FOURTEENTH AMENDMENT OF
                THE UNITED STATES CONSTITUTION, OHIO BILL OF
                RIGHTS: ARTICLE I, §§ 2 AND 16.

                [3.] THE MAGISTRATE JUDGE ROBERT VAN SCHOYCK,
                OF THE COURT OF CLAIMS OF OHIO CREATED A
                STRUCTURAL DEFECT IN THE CONSTITUTION OF THE
                NON-ORAL SUMMARY JUDGMENT HEARING.            THE
                MAGISTRATE JUDGE, FAILED TO ACCEPT AND/OR
                CONSIDER     PLAINTIFF'S/APPELLANT'S  ATTACHED
                EXHIBIT "A" THROUGH "G" THAT ACCOMPANY HIS
                FORM COMPLAINT FILED IN THE COURT OF CLAIMS.
                THE MAGISTRATE JUDGE REFUSSAL TO ACKNOW-
                LEDGE AND/OR ACCEPT PLAINTIFF'S/APPELLANT'S
                EXHIBITS "A" THROUGH "G AS ADMISSIBLE EVIDENCE
                AND/OR     MATERIAL    EVIDENCE,   DENIED     THE
                PLAINTIFF/APPELLANT THE RIGHT TO PETITION
                AND/OR REDRESS THE COURT(S), AND DENIED THE
                PLAINTIFF/APPELLANT PROCEDURE DUE PROCESS,
                AND THE EQUAL PROTECTION OF LAWS AS
                GUARANTEED BY THE FIRST AND FOURTEENTH
                AMENDMENTS       OF     THE    UNITED     STATES
                CONSTITUTION, OHIO BILL OF RIGHTS: ARTICLE I, §§ 2,
                3, and 16.

(Sic passim.)
      {¶ 5} Because appellant's three assignments of error are interrelated, we will
address them together.     We note that in his assignments of error, appellant has
characterized his claims as constitutional violations—procedural due process and equal
protection. Appellant's complaint does not allege constitutional violations. Nor does the
Court of Claims have jurisdiction to decide constitutional claims. Therefore, we will
No. 13AP-466                                                                                4

interpret appellant's assignments of error as challenging appellee's right to summary
judgment on his negligence claims.
       {¶ 6} We review a summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc.,
94 Ohio App.3d 579, 588 (8th Dist.1994), citing Brown v. Scioto Cty. Bd. of
Commissioners, 87 Ohio App.3d 704, 711 (4th Dist.1993). When an appellate court
reviews a trial court's disposition of a summary judgment motion, it applies the same
standard as the trial court and conducts an independent review, without deference to the
trial court's determination. Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107
(10th Dist.1992); Brown at 711.
       {¶ 7} Pursuant to Civ.R. 56(C), 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." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3)
viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
       {¶ 8} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on any material
element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
Once the moving party meets its initial burden, the nonmovant must set forth specific
facts demonstrating a genuine issue for trial. Id. at 293. Because summary judgment is a
procedural device to terminate litigation, courts should award it cautiously after resolving
all doubts in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,
358-59 (1992), quoting Norris v. Ohio Standard Oil Co., 70 Ohio St.2d 1, 2 (1982).
       {¶ 9} To    establish   actionable   negligence,    appellant   must    prove   by   a
preponderance of the evidence that the state owed him a duty, that the state's acts or
omissions resulted in a breach of that duty, and that the breach proximately caused his
injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 8, citing
No. 13AP-466                                                                            5

Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). " 'In the context of a
custodial relationship between the state and its prisoners, the state owes a common-law
duty of reasonable care and protection from unreasonable risks.' " Franks v. Ohio Dept.
of Rehab. & Corr., 10th Dist. No. 12AP-442, 2013-Ohio-1519, ¶ 17, quoting Woods v.
Ohio Dept. of Rehab. & Corr., 130 Ohio App.3d 742, 745 (10th Dist.1998). The state,
however, is not an insurer of inmates' safety and owes the duty of ordinary care only to
inmates who are foreseeably at risk. Id.
          {¶ 10} In one form or another, appellant's arguments all address the duty and/or
breach elements of his negligence claim. None of his arguments address the ground upon
which the trial court granted summary judgment in favor of appellee—the absence of any
evidence demonstrating that the alleged breach of duty proximately caused appellant's
injury.
          {¶ 11} In support of its motion for summary judgment, and to demonstrate the
absence of genuine issues of material fact, appellee relied upon the allegations in
appellant's complaint and two affidavits attached to its motion. Appellee notes that the
sole basis for appellant's negligence claim is his allegation that he contracted MRSA from
unsanitary conditions in the prison barbershop. However, appellee attached an affidavit
from the prison barber, William Barnett, which indicates the following:
                (1) Mr. Barnett is employed as a barber at HCF and has been
                 employed as a barber since 1967;
                (2) Before entering prison, Mr. Barnett was a licensed barber
                 in Ohio and completed beautician and barber school;
                (3) He is trained in the proper sanitation and disinfecting
                 techniques      of   the     entire       barbershop,   including
                 sanitation/disinfecting clipper blades;
                (4) After he was incarcerated at HCF, he received further
                 training     from      prison       staff     on    the    proper
                 sanitation/disinfecting techniques that must be used while
                 working as a barber at HCF;
                (5) While working as a barber at HCF, Mr. Barnett used
                 chemicals barbicide, H-42 clipper cleaner and marvacide to
                 sanitize clipper blades, which is what all barbers use;
                (6) His training as a barber indicates that these chemicals are
                 used on clipper blades to kill all types of disease and bacteria;
                (7) Mr. Barnett sanitizes the clipper blades and all equipment
                 used on clients prior to every haircut;
No. 13AP-466                                                                         6

                  (8) Mr. Barnett washes his hands with soap and water prior
                  to cutting clients hair;
                 (9) Hot water is never used in the sanitation process of
                  clipper blades;
                 (10) Only the chemicals noted above are used;
                 (11) On August 5, 2012, appellant came to Mr. Barnett for a
                  haircut, requesting that Mr. Barnett shave appellant's head;
                 (12) Mr. Barnett sanitized the clipper blade that he used to
                  shave appellant's head with the chemicals noted above;
                 (13) The only haircutting tool that Mr. Barnett used on
                  appellant's head was the 0000 clipper blade which was
                  properly sanitized;
                 (14) Appellant's haircut was completed without any incident
                  or complaint;
                 (15) At no point in time did Mr. Barnett cut appellant's head
                  with the clipper blade;
                 (16) At no point in time did appellant's head bleed or have an
                  open wound during his haircut;
                 (17) At no point in time did appellant complain of any injury
                  during his haircut.

       {¶ 12} Appellee also attached to its motion an affidavit from Jeffery Oxley, who
testified that:
                 (1) He is employed as the safety and sanitation officer by
                  appellee at HCF;
                 (2) Mr. Oxley is trained and familiar with appellee's policy
                  and procedure on the sanitation requirements of the prison
                  barber facility;
                 (3) Mr. Oxley was responsible for training and supervising
                  inmate-barber, William Barnett, Jr.;
                 (4) Mr. Oxley trained Mr. Barnett on the proper use of
                  sanitation generally and the use of sanitation chemicals when
                  cutting an inmate's hair;
                 (5) Mr. Barnett was trained in the proper sanitation and
                  disinfecting techniques of the entire barbershop, including
                  sanitation/disinfecting clipper blades;
                 (6) The HCF barbershop was properly stocked with all of the
                  necessary disinfecting/sanitation chemicals, including
                  barbicide, H-42 clipper cleaner and marvacide;
                 (7) The above chemicals are the only chemicals required to
                  properly sanitize all the tools that come into contact with an
                  inmate's body during a haircut;
                 (8) Hot water is not used in the barbershop for the sanitation
                  of clipper blades or any other instrument that is used on an
                  inmate's body;
No. 13AP-466                                                                                7

              (9) If an inmate was cut during the process of a haircut, it is
               the Ohio Department of Rehabilitation and Correction's policy
               to immediately send that inmate to medical.

       {¶ 13} Based upon appellant's theory of negligence, we conclude that appellee has
met its burden on summary judgment on the issues of breach and proximate cause, thus
giving rise to appellant's reciprocal burden as required by Civ.R. 56(E).
       {¶ 14} Appellant responded to appellee's motion with his own affidavit.
Essentially, appellant simply swore to the truthfulness of the allegations in his
complaint—that unsanitary conditions during his haircut at the HCF barber facility
caused his injury. He also attached unauthenticated documents that purport to support
his contention that the barbershop lacked a source of hot water as required by state
regulations. Notably absent from appellant's response is any evidence disputing the
factual assertions contained in the affidavits of Barnett and/or Oxley. Nor did appellant
present any expert evidence that his injury was proximately caused by the haircut he
received at the HCF barbershop facility. Lastly, appellant presented no evidence that the
absence of hot water in the barbershop proximately caused his injury.             Essentially,
appellant relies solely upon the fact that there was no hot water available in the
barbershop when he received his haircut; he experienced soreness on his scalp in several
places two or three days following his haircut; that the condition worsened over time
despite the application of an antibiotic ointment; and that he was diagnosed with MRSA
approximately six weeks later.
       {¶ 15} Although     a   plaintiff   may   establish   proximate    causation   through
circumstantial evidence " 'there must be evidence of circumstances which will establish
with some degree of certainty that the alleged negligent acts caused the injury.' " Mills v.
Best Western Springdale, 10th Dist. No. 08AP-1022, 2009-Ohio-2901, ¶ 20, quoting
Woodworth v. New York Cent. R.R. Co., 149 Ohio St. 543, 549 (1948). It is well-
established that when only speculation and conjecture is presented to establish proximate
causation, the negligence claim has failed as a matter of law. Mills at ¶ 20.
       {¶ 16} Generally, where an issue involves a question of scientific inquiry that is not
within the knowledge of a layperson, expert testimony is required. Stacey v. Carnegie-
Illinois Steel Corp., 156 Ohio St. 205 (1951). As this court stated in Mills:
No. 13AP-466                                                                                8

              Unless a matter is within the comprehension of a layperson,
              expert testimony is necessary. Evid.R. 702 and 703. Experts
              have the knowledge, training and experience to enlighten the
              jury concerning the facts and their opinion regarding the
              facts. McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d
              77.

Id. at ¶22 quoting Ramage v. Cent. Ohio Emergency Servs. Inc., 64 Ohio St.3d 97, 102
(1992).
       {¶ 17} The mechanisms for contracting MRSA are not within the knowledge of a
layperson. Proper sanitation techniques in a barbershop are not within the knowledge of
a layperson. As previously noted, appellant failed to submit any expert testimony on the
issues of breach or proximate causation. Appellant's theory of liability is premised solely
on speculation and conjecture. Appellant submitted no evidence regarding how MRSA is
transmitted; whether the chemicals used in the barbershop kill the MRSA bacteria;
whether it is possible to contract MRSA in the manner appellant alleges; how long it takes
for the MRSA infection to manifest itself after exposure; and whether the absence of hot
water has any bearing on the transmission of MRSA. Even if we assume that appellant
created an issue of fact regarding appellee's breach of a duty due to the absence of hot
water, appellant points to nothing beyond conjecture and speculation to establish
proximate causation. The documents appellant has submitted do not address the issue of
proximate cause. Given the unrefutted evidence presented by appellee in support of its
motion for summary judgment, we conclude that a reasonable fact finder could only
conclude that appellant has failed to create a material issue of fact on an essential element
of his negligence claim. Therefore, we agree with the trial court that appellee is entitled to
summary judgment.
       {¶ 18} Accordingly, we overrule appellant's assignments of error, and affirm the
judgment of the Court of Claims of Ohio.
                                                                        Judgment affirmed.

                            BROWN and CONNOR, JJ., concur.
