[Cite as Garrett v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-851.]

                                                         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

MAGISTRATE DECISION




        {¶ 1} On January 19, 2010, an evidentiary hearing was conducted in this matter
to determine whether Henry Berlin is entitled to civil immunity pursuant to R.C.
2743.02(F) and 9.86.
        {¶ 2} R.C. 2743.02(F) states, in part:
        {¶ 3} “A civil action against an officer or employee, as defined in section 109.36
of the Revised Code, that alleges that the officer’s or employee’s conduct was
manifestly outside the scope of the officer’s or employee’s employment or official
responsibilities, or that the officer or employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner shall first be filed against the state in the court
of claims, which has exclusive, original jurisdiction to determine, initially, whether the
officer or employee is entitled to personal immunity under section 9.86 of the Revised
Code and whether the courts of common pleas have jurisdiction over the civil action.”
        {¶ 4} R.C. 9.86 states, in part:
Case No. 2009-04858                         -2-                 MAGISTRATE DECISION

       {¶ 5} “[N]o officer or employee [of the state] shall be liable in any civil action that
arises under the law of this state for damage or injury caused in the performance of his
duties, unless the officer’s or employee’s actions were manifestly outside the scope of
his employment or official responsibilities or unless the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless manner.”
       {¶ 6} R.C. 109.36 provides, in part:
       {¶ 7} “(A) (1) ‘Officer or employee’ means any of the following:
       {¶ 8} “* * *
       {¶ 9} “(b) A person that, at the time a cause of action against the person,
partnership, or corporation arises, is rendering medical, nursing, dental, podiatric,
optometric, physical therapeutic, psychiatric, or psychological services pursuant to a
personal services contract or purchased service contract with a department, agency, or
institution of the state.”
       {¶ 10} At the hearing, the parties stipulated that Berlin was, at all times relevant,
an employee of Wise Medical Staffing, a corporation under contract with defendant to
provide nursing services to the Corrections Medical Center (CMC), and that Berlin thus
met the definition of “employee” as set forth in R.C. 109.36(A)(1)(b). The court agrees
and finds that Berlin was therefore an “employee” for the purposes of R.C. 2743.02(F)
and 9.86.
       {¶ 11} At all times relevant, plaintiff was an inmate in the custody and control of
defendant pursuant to R.C. 5120.16. Plaintiff alleges that on October 7, 2008, he was
at CMC awaiting transport to The Ohio State University Medical Center for surgery on
his left knee when Berlin sexually assaulted him. Plaintiff contends that Berlin was
acting within the course and scope of his employment when the assault took place and
that Berlin is therefore entitled to civil immunity. Defendant argues that Berlin was
acting manifestly outside the course and scope of his employment and is therefore not
entitled to civil immunity.
Case No. 2009-04858                          -3-                  MAGISTRATE DECISION

       {¶ 12} Plaintiff testified that he had been transported to CMC from the Ross
Correctional Institution (RCI) prior to October 7, 2008, and that his surgery was
scheduled for October 8, 2008. Plaintiff stated that he was placed in a room at CMC
with four beds and that there were two other inmates in the room with him. According to
plaintiff, on the day in question, Berlin entered the room alone while the other inmates
were asleep and told plaintiff that he was there to “check his vitals.” Plaintiff testified
that nurses usually came to the room in groups of two or three and there was always a
corrections officer with them who stood near the door. According to plaintiff, the events
then unfolded as follows: Berlin lifted plaintiff’s shirt up and used a stethoscope to listen
to his heart and lungs; Berlin then lifted the waistband of plaintiff’s, pants stuck the
stethoscope down the front, and rubbed plaintiff’s penis with his left hand; Berlin then
moved to plaintiff’s right leg and rolled up the leg of plaintiff’s pants to examine plaintiff’s
right knee; plaintiff informed Berlin that his surgery was going to be on his left knee, not
his right and Berlin replied that he needed to examine both; Berlin then stuck his left
hand up the leg of plaintiff’s pants and rubbed plaintiff’s testicles twice; Berlin then
moved to plaintiff’s left side and repeated the knee examination and then stuck his right
hand up plaintiff’s pant leg and again rubbed plaintiff’s testicles twice; Berlin then
rubbed plaintiff’s penis with his right hand and walked away making notes; Berlin then
stood at the door and briefly stared at plaintiff before leaving the area.
       {¶ 13} Plaintiff stated that during the alleged incident he said nothing to Berlin
other than to voice his concerns over which knee Berlin examined. Plaintiff further
stated that he did not tell anyone at CMC about what happened for fear of reprisals from
Berlin or other nurses, and for fear that his surgery would be postponed. According to
plaintiff, he had never seen Berlin prior to this incident and did not see him thereafter.
When plaintiff returned to RCI he voiced his concerns over the incident and submitted a
statement to Corrections Captain Price on October 13, 2008. (Defendant’s Exhibit A.)
Plaintiff also gave a statement to the Ohio State Highway Patrol on February 9, 2009.
(Defendant’s Exhibit B.) These narrative accounts are nearly identical to the testimony
Case No. 2009-04858                          -4-               MAGISTRATE DECISION

plaintiff presented at the hearing.     No evidence or testimony was presented at the
hearing to dispute plaintiff’s account of the incident.
       {¶ 14} The issue of whether an employee is entitled to immunity is a question of
law. Nease v. Medical College Hosp., 64 Ohio St.3d 396, 1992-Ohio-97, citing Conley
v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133.            The question whether the
employee acted outside the scope of his employment, or with malicious purpose, in bad
faith, or in a wanton or reckless manner is one of fact. Tschantz v. Ferguson (1989), 49
Ohio App.3d 9. Plaintiff bears the burden of proving that the state employee should be
stripped of immunity. Fisher v. Univ. of Cincinnati Med. Ctr. (Aug. 25, 1998), Franklin
App. No. 98AP-142.
       {¶ 15} “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. Bad
faith has been defined as the opposite of good faith, generally implying or involving
actual or constructive fraud or a design to mislead or deceive another. Bad faith is not
prompted by an honest mistake as to one’s rights or duties, but by some interested or
sinister motive.   Finally, reckless conduct refers to an act done with knowledge or
reason to know of facts that would lead a reasonable person to believe that the conduct
creates an unnecessary risk of physical harm and that such risk is greater than that
necessary to make the conduct negligent.              The term ‘reckless’ is often used
interchangeably with the word ‘wanton’ and has also been held to be a perverse
disregard of a known risk.” Caruso v. State (2000), 136 Ohio App.3d 616, 620-621.
(Internal citations omitted.)
       {¶ 16} This court has previously held that actions that amount to sexual
harassment are outside the scope of employment because they further only the
interests of the alleged offender and not the employer. In Jones v. Ohio Veteran’s
Home (Oct. 1, 2004), Ct. of Cl. No. 2002-03775, the court found that an employee who
Case No. 2009-04858                        -5-                MAGISTRATE DECISION

inappropriately touched a female colleague was not entitled to civil immunity. In Smith
v. Dept. of Youth Services (June 4, 2002), Ct. of Cl. No. 2000-05860, the court found
that a corrections officer who permitted an incarcerated minor to touch her breasts and
buttocks over her clothes was not entitled to civil immunity. See also Browning v. Ohio
State Highway Patrol, Franklin App. No. 02AP-814, 2008-Ohio-1108.
      {¶ 17} Based upon the foregoing, the court finds that although Berlin was
ostensibly performing his duties as a nurse when he entered plaintiff’s room at CMC, he
acted only to satisfy his own interests. Accordingly, it is recommended that the court
issue an order 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.
       A party may file written objections to the magistrate’s decision within 14 days of
the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the
decision, as required by Civ.R. 53(D)(3)(b).




                                          _____________________________________
                                          MATTHEW C. RAMBO
                                          Magistrate

cc:
Case No. 2009-04858               -6-              MAGISTRATE DECISION


Eric A. Walker                     Richard F. Swope
Assistant Attorney General         6504 East Main Street
150 East Gay Street, 18th Floor    Reynoldsburg, Ohio 43068-2268
Columbus, Ohio 43215-3130

Henry Berlin                       Thomas M. Spetnagel
7074 Chenoweth Fork Road           Paige J. McMahon
Piketon, Ohio 45661                42 East Fifth Street
                                   Chillicothe, Ohio 45601

MR/cmd
Filed February 3, 2010
To S.C. reporter March 3, 2010
