Harris v. Ohio Dept. of Rehab. & Corr. , 2013 Ohio 5714 ( 2013 )

[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.