[Cite as Armstrong v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-4796.]



                                      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




A. D. ARMSTRONG

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

        Case No. 2011-02654-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    1) Plaintiff, A. D. Armstrong, an inmate incarcerated at defendant,
Lebanon Correctional Institution (LeCI), asserted that a LeCI employee, Corrections
Officer (CO) Hinkle, entered his cell on February 9, 2011, and deliberately tore pages
from plaintiff’s Quran. Plaintiff contended that Hinkle deliberately damaged his Quran
as an act of harassment, intimidation and retaliation against plaintiff for his religious
views. Plaintiff maintained that defendant should bear responsibility for the damage to
the book and for the mental distress he has endured as a result of the actions by
Hinkle.1 Plaintiff filed this complaint seeking to recover $2,500.00. Payment of the filing
fee was waived.
        {¶2}    2) On February 28, March 4, March 10, March 29, April 8 and April 20,
2011, plaintiff filed additional documentation in support of his allegations.                          Such


        1
         Initially, it should be noted that this court does not recognize entitlement to damages for mental
distress and extraordinary damages for simple negligence involving property loss. Galloway v.
Department of Rehabilitation and Correction (1979), 78-0731-AD; Berke v. Ohio Dept. of Pub. Welfare
(1976), 52 Ohio App. 2d 271, 6 O.O. 3d 280, 369 N.E. 2d 1056. Consequently, plaintiff’s claim for
documentation included statements from several inmates housed at LeCI who had
witnessed seemingly random acts of alleged retaliation and intimidation by CO Hinkle
and other LeCI staff members on several occasions from July 2010 through April 2011.
       {¶3}    3) Defendant denied liability in this matter contending that plaintiff failed
to offer sufficient evidence to establish that his Quran was damaged as a proximate
result of negligence on the part of LeCI personnel. Defendant referenced a report from
the Inspector of Institutional Services, Lebanon Correctional Institution, wherein it was
determined that CO Hinkle “admits to a planned search of the cell but denies the
destruction of Plaintiff’s Quran.” A copy of this report was included with defendant’s
investigation report. Defendant also pointed out that plaintiff claimed his property was
intentionally destroyed by CO Hinkle and consequently, LeCI may generally not bear
liability based on the intentional acts of an employee acting outside the scope of his
authority. See Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d
303, 607 N.E.2d 103.
       {¶4}    4) Plaintiff filed a response and submitted statements from fellow
inmates, Kaufman, Phillips, and Ford, who related that they too had witnessed incidents
of property destruction, use of excessive force while subduing other          inmates, and
verbal abuse, by CO Hinkle.
                                  CONCLUSIONS OF LAW
       {¶5}    Plaintiff and his fellow inmates have contended defendant’s employee, CO
Hinkle, engaged in an intentional act when he allegedly damaged plaintiff’s property on
February 9, 2011. Defendant has contended the acts alleged on the part of CO Hinkle if
proven would constitute an intentional act outside the scope of employment and
consequently no responsibility for these intentional acts would rest with LeCI. In the
context to determine if LeCI 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. (1994), 92 Ohio App. 3d 772, 775, 637 N.E. 2d 106; Thomas v. Ohio
Dept. of Rehab. & Corr. (1988), 48 Ohio App. 3d 86, 89, 548 N.E. 2d 991; and Peppers
v. Ohio Dept. of Rehab. & Corr. (1988), 50 Ohio App. 3d 87, 90, 553 N.E. 2d 1093. It is
only where the acts of state employees are motivated by actual malice or other such

mental distress is DENIED.
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
(1980), 1 Ohio App. 3d 60, 61, 1 OBR 6, 439 N.E. 2d 437.               The act must be so
divergent that it severs the employer-employee relationship.           Elliott, at 775 citing
Thomas, at 89, and Peppers, at 90.
       {¶6}     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. (1991), 76 Ohio App. 3d 448, 453-454, 602 N.E. 2d
363, citing Teramano v. Teramano (1966), 6 Ohio St. 2d 117, 118, 35 O.O. 2d 144, 216
N.E. 2d 375; and Bush v. Kelly’s Inc. (1969), 18 Ohio St. 2d 89, 47 O.O. 2d 238, 247
N.E. 2d 745.
       {¶7}     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 (1991), 57
Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR. Co. v. Wetmore (1869), 19 Ohio
St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21 OBR 165, 486
N.E. 2d 249.
       {¶8}     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. (1992), 79 Ohio App. 3d 303,
607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103 N.E.
2d 564.       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.
                                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




A. D. ARMSTRONG

        Plaintiff

        v.

DEPARTMENT OF REHABILITATION AND CORRECTION

        Defendant

        Case No. 2011-02654-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION

        Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:

A. D. Armstrong, #489-194                        Gregory C. Trout, Chief Counsel
State Route 56                                   Department of Rehabilitation
Lebanon, Ohio 45036                              and Correction
                                                 770 West Broad Street
                                                 Columbus, Ohio 43222
SJM/laa
5/27
Filed 6/14/11
Sent to S.C. reporter 9/21/11
