[Cite as Moorer v. Trumbull Correctional Inst., 2009-Ohio-7177.]

                                      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




MARCUS BRANDON MOORER

       Plaintiff

       v.

TRUMBULL CORRECTIONAL INSTITUTION

       Defendant

        Case No. 2009-05633-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On October 1, 2008, plaintiff, Marcus Brandon Moorer, an inmate
incarcerated at defendant, Trumbull Correctional Institution (TCI), was transferred from
his housing range on the local control segregation unit to a psychiatric observation cell
along with other inmates from local control. According to plaintiff, a TCI employee,
identified as Officer Black, was assigned to pack the personal property of inmates who
had been transferred from the local control range. Plaintiff contended Officer Black
entered his cell on the TCI local control range and instead of packing the property left
there, intentionally discarded all his personal property into a trash can. Plaintiff related
Officer Black “has a history of such unprofessional conduct.” Plaintiff claimed his legal
material, personal books, Quran, address book, family photographs, and recently
purchased commissary items were thrown away by Officer Black. Plaintiff asserted the
discarded property items were never recovered and he maintained defendant should
bear responsibility for the loss of the property that he alleged was intentionally
discarded.       Plaintiff filed this complaint seeking to recover $515.00, the stated
replacement value of the alleged discarded property. Payment of the filing fee was
waived.
      {¶ 2} Plaintiff submitted an affidavit from a fellow inmate, Abdul Bari, who was
housed in the same TCI local control range as plaintiff and witnessed events on the
range on October 1, 2008. Bari stated, “I observed CO Black and CO Klatka (sp?)
come down the LC range with a trash container and enter several of the cells of the
individuals who were moved to the strip cells, enter their cells and throw their
belongings from their cells into the trash container.” Bari recalled he observed property
being discarded from plaintiff’s cell. Bari further recalled he had witnessed on prior
occasions “CO Black enter cells on the LC Unit to ‘shake down’ those prisoners he may
have had words with, and trash all of their property.” Bari noted he heard CO Black on
October 1, 2008 “laughing and making a joke” in reference to the intentional discarding
of property from cells on the TCI local control range. Bari stated he “had personally
spoken to Administrative Assistant, Ms. Ware, on her rounds through the LC Unit, and
explained to her what I had observed with regards to the actions of CO Black.”
      {¶ 3} Defendant specifically denied Officer Black was directed to throw away
plaintiff’s property on October 1, 2008. Defendant explained Officer Black’s supervisor,
TCI employee Captain Franklin, denied “ordering the officer to destroy plaintiff’s
property.” Defendant pointed out that plaintiff claimed his property was intentionally
destroyed by Officer Black and consequently, TCI may generally not bear liability based
on the intentional acts of an employee acting outside the scope of his authority. See
Flourney v. Dept. of Rehabilitation and Correction (1987), 84-09365-AD.
      {¶ 4} Alternatively, defendant contended plaintiff failed to offer evidence to
prove he actually owned the claimed discarded property. Defendant submitted a copy
of plaintiff’s property record dated July 3, 2008 incident to plaintiff being placed in a
security control unit. Property items listed on this record relevant to the instant action
include books and papers. No religious book, address book and photographs are listed.
The record bears plaintiff’s signature acknowledging it as a “complete and accurate
inventory of all” his personal property. This record bears plaintiff’s signature dated
November 3, 2008 acknowledging he received all the items listed.             Defendant’s
submitted records show plaintiff purchased items from the TCI commissary on July 18,
2008, August 20, 2008 and September 17, 2008.
      {¶ 5} Plaintiff filed a response insisting his books, photographs, Quran, address
book, legal documents, and personal hygiene articles were in his possession in his cell
and not in the TCI segregation vault on October 1, 2008. Plaintiff explained defendant’s
internal regulations permit inmates who are housed in segregation “Special
Management Housing Unit” to possess the above mentioned items along with other
personal property. Plaintiff reasserted Officer Black discarded personal property from
his cell. Plaintiff submitted a written statement from a fellow inmate, Ingram #461-205,
who noted “Officer Black threatened to destroy my personal property the same way he
did Inmate Moorer’s.” Ingram expressed the opinion “Officer Black acts discriminately
towards Muslim inmates.”
      {¶ 6} Plaintiff and his fellow inmates have contended defendant’s employee,
Officer Black, engaged in an intentional act when he allegedly discarded plaintiff’s
property on October 1, 2008. Defendant has contended the acts alleged on the part of
Officer Black if proven would constitute an intentional act outside the scope of
employment and consequently no responsibility for these intentional acts would rest
with TCI. In the context to determine if TCI 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 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.
      {¶ 7} Malicious purpose encompasses exercising “malice,” which can be
defined as the willful and intentional design to do injury, or the intention to 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.
       {¶ 8} 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.
       {¶ 9} 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 in the context of the situation, 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




MARCUS BRANDON MOORER

      Plaintiff

      v.

TRUMBULL CORRECTIONAL INSTITUTION

      Defendant

       Case No. 2009-05633-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:

Marcus Brandon Moorer, #405-528                   Gregory C. Trout, Chief Counsel
5701 Burnett Road                                 Department of Rehabilitation
Leavittsburg, Ohio 44430                          and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
10/29
Filed 12/2/09
Sent to S.C. reporter 3/18/10
