[Cite as Evans v. Atty. Gen., 2020-Ohio-3471.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

William H. Evans, Jr., : 

 

 Plaintiff-Appellant, : No. 20AP-53 

 (Ct. of Cl. No. 2019-00505JD)

v. : 

 (REGULAR CALENDAR) 

Ohio Attorney General et al., : 

 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on June 25, 2020 

 

On brief: William H. Evans, Jr., pro se. 

On brief: Dave Yost, Attorney General, and Lauren D. Emery, 

for appellee Ohio Department of Rehabilitation and 

Correction. 

 

APPEAL from the Court of Claims of Ohio 

BROWN, J. 

{¶ 1} This is an appeal by plaintiff-appellant, William H. Evans, Jr., from an entry 

of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee, 

Ohio Department of Rehabilitation and Correction ("ODRC"). 

{¶ 2} On April 15, 2019, appellant, an inmate at the Northeast Ohio Correctional 

Center ("NEOCC"), filed a pro se complaint against ODRC and the Ohio Attorney General 

("OAG") for declaratory judgment, injunction, and damages. In the complaint, appellant 

alleged he received medical treatment while incarcerated at NEOCC, and that "the 

underlying claim regards failures by N.E.O.C.C. Warden to properlly [sic] train staff and 

ensure adequate medical care, that is to ensure that all prescribed medications are properlly 
No. 20AP-53 2 

[sic] given to the inmate without avoidable delays, and consistently." (Compl. at ¶ 6.) 

According to the complaint, an "evening pill-call" had been "delayed until later at night, due 

to security, and refills are not timely refilled." (Compl. at ¶ 8.) 

{¶ 3} The complaint also included allegations regarding a 2018 pro se complaint 

filed by appellant in the Mahoning County Court of Common Pleas against NEOCC, the 

warden of NEOCC, CoreCivic America Corporation ("CoreCivic"), and Diamond Pharmacy 

Services. Appellant alleged "[t]he Mahoning Common Pleas Court dismissed the action 

against the N.E.O.C.C. Defendants but kept the Diamond Defendants." Appellant further 

alleged that he "timely appealed," but "the 7th. District dismissed the action completely 

counter to law, and * * * that said dismissal was also in violation of criminal law." (Compl. 

at ¶ 6.) 

{¶ 4} Appellant sought to incorporate, as part of his complaint in the Court of 

Claims, exhibits from the 2018 action, including the "Complaint filed in the Mahoning 

Common Pleas Court as case no. 18CV-1446, a Supplemental Pleading * * *, a Declaration 

by an inmate verifying the problems here at Plaintiff's facility," a "Brief filed by Plaintiff in 

the 7th. District case no. 18MA-140," as well as "a response from the Mahoning Prosecutor 

declining to prosecute." (Compl. at ¶ 3.) 

{¶ 5} On May 13, 2019, ODRC filed a motion to dismiss, arguing it was not liable 

for the alleged torts of its independent contractor. On May 14, 2019, the OAG filed a motion 

to dismiss, asserting the Court of Claims lacked jurisdiction over the claims involving the 

OAG, and that appellant's complaint failed to state a claim for relief. On May 22, 2019, 

appellant filed a memorandum contra the motions to dismiss filed by ODRC and OAG. 

{¶ 6} On August 2, 2019, the Court of Claims filed an entry of partial dismissal, 

finding it lacked jurisdiction over appellant's criminal claims of conspiracy, theft, and 

obstructing justice, and that appellant's complaint failed to state a claim against OAG. The 

Court of Claims denied ODRC's motion to dismiss. 

{¶ 7} On September 3, 2019, ODRC filed a motion for summary judgment against 

appellant asserting in part that the warden and staff at NEOCC are employees of CoreCivic, 

a private corporation, and that ODRC was not liable for alleged torts of its independent 

contractor. On September 11, 2019, appellant filed a memorandum in opposition to 

summary judgment. On January 7, 2020, the Court of Claims filed a decision granting 
No. 20AP-53 3 

ODRC's motion for summary judgment, finding there was no dispute CoreCivic was an 

independent contractor and not an agent of ODRC. 

{¶ 8} On appeal, appellant, pro se, sets forth the following two assignments of error 

for this court's review: 

Error One: Is ODRC liable for wrongful acts or omissions by it's 

private contractor where that contractor is performing a 

delegated duty of ODRC? 

Error Two: Was summary judgment authorized when the issue 

of principal/agent is a question of fact in dispute? Was it 

authorized when Ohio law mandates that the contractor 

adheres to all laws and rules of ODRC and Ohio, hence 

respondeat superior applies? 

{¶ 9} Appellant's assignments of error are interrelated and will be considered 

together. Under these assignments of error, appellant challenges the decision of the Court 

of Claims granting summary judgment in favor of ODRC on the following grounds: (1) that 

ODRC is liable for the acts or omissions of its "private contractor" where such contractor is 

performing a "delegated duty" of ODRC, and (2) that issues of fact remain as to ODRC's 

liability based upon principal-agent or respondeat superior theories. 

{¶ 10} Under Ohio law, the grant of summary judgment is proper if the moving party 

demonstrates: "(1) no genuine issue of material fact exists, (2) the moving party is entitled 

to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion 

and that conclusion is adverse to the party against whom the motion for summary judgment 

is made, that party being entitled to have the evidence most strongly construed in its favor." 

Santagate v. Pennsylvania Higher Edn. Assistance Agency (PHEAA), 10th Dist. No. 19AP705, 2020-Ohio-3153, ¶ 11, citing Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations 

Bd., 78 Ohio St.3d 181, 183 (1997). This court reviews summary judgment "under a de novo 

standard." Santagate at ¶ 11. 

{¶ 11} In Wright v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-153, 2014-

Ohio-4359, this court discussed principles of agency and independent contractor law, as 

well as the doctrine of respondeat superior, holding in part: 

One who causes work to be done is not liable, ordinarily, for 

injuries that result from carelessness in its performance by the 

employees of an independent contractor, to whom he has let 

the work, without reserving to himself any control over the 
No. 20AP-53 4 

execution of it. * * * More simply, an employer is generally not 

liable for the negligent acts of an independent contractor that 

it has hired. * * * However, an employer cannot likewise evade 

liability if the negligent party is the employer's employee or 

agent. Under the doctrine of respondeat superior, an employer 

is vicariously liable for the negligence of its employees or 

agents. * * * 

The doctrine of respondeat superior depends on the existence 

of control by a principal over an agent. * * * If an employer 

retains control or the right to control the mode and manner of 

doing the work contracted for, then the relationship is one of 

principal and agent. * * * On the other hand, if the employer 

merely dictates the ultimate result to be accomplished, then the 

relationship is one of employer and independent contractor. 

In determining whether an employer has the degree of control 

necessary to establish agency, courts examine a variety of 

factors, including: whether the employer or individual controls 

the details of the work; whether the individual is performing in 

the course of the employer's business rather than in an 

ancillary capacity; whether the individual receives 

compensation from the employer, and the method of that 

compensation; whether the employer or individual controls the 

hours worked; whether the employer or individual supplies the 

tools and place of work; whether the individual offers his 

services to the public at large or to one employer at a time; the 

length of employment; whether the employer has the right to 

terminate the individual at will; and whether the employer and 

individual believe that they have created an employment 

relationship. 

Id. at ¶ 8-10. 

{¶ 12} In its motion for summary judgment on appellant's negligence action, ODRC 

asserted that NEOCC was privately owned and operated by CoreCivic; further, that 

CoreCivic was an independent contractor of ODRC and not its agent. In support, ODRC 

attached to its motion the affidavit of its Assistant Director, Stuart Hudson, who averred in 

part: 

2. I have been employed with Defendant, the Ohio Department 

of Rehabilitation and Correction ("DRC") since 1994. I 

currently serve as the Assistant Director of DRC. As Assistant 

Director, my job duties include: Direct operations of major 

divisions to include: prisons, court and community services, 

holistic services, personnel, labor relations, administration and 
No. 20AP-53 5 

training. Assist the Director in supervising all operations of the 

Department through assigning duties and responsibilities to 

various division and institutions. Define agency goals and 

objectives, formulate policies, procedures and Administrative 

Rules necessary for the efficient management and operation of 

the Department. Act on behalf of the Director in her absence. 

3. The Warden, the correctional officers, and medical staff at 

the Northeast Ohio Correctional Center (NEOCC) are 

employees or agents of CoreCivic. 

4. CoreCivic, independent from DRC and the State of Ohio, 

maintains and operates NEOCC pursuant to a contract with 

DRC. 

5. CoreCivic maintains the premises of NEOCC and is 

responsible for procuring the equipment and supplies 

necessary to operate it. 

6. While CoreCivic operates and maintains NEOCC in 

accordance with contractual and statutory criteria, it does so 

independently.1

7. DRC is not involved in CoreCivic's decision-making and does 

not control the details of the work. 

8. DRC employees are not involved in the institution's daily 

operations nor does DRC play any part in hiring, paying, 

supervising, disciplining, or terminating CoreCivic's 

employees. 

9. CoreCivic controls the hours worked and amount paid to 

each of its employees." 

{¶ 13} In its motion, ODRC also pointed to an exhibit attached to appellant's 

complaint, i.e., a copy of appellant's 2018 pro se complaint filed in the Mahoning County 

Court of Common Pleas in which he alleged that "NEOCC is a [privately] owned 

correctional corporation," and that CoreCivic "is most accurately defined as a 'Contractor' 

for ODRC, rather than an 'Agent.' " (May 23, 2018 Compl. at ¶ 3, 5.) 

 

1 In general, "the independent contractor-employee issue is one that must be determined by the trier of fact." 

Brown v. CDS Transp., Inc., 10th Dist. No. 10AP-46, 2010-Ohio-4606, ¶ 10. However, where "the evidence 

is not in conflict or where the facts are not in dispute, the issue becomes a matter of law that may be decided 

by the trial court." Id. 
No. 20AP-53 6 

{¶ 14} In granting summary judgment in favor of ODRC, the Court of Claims noted 

that appellant "did not submit evidence to rebut that submitted by [ODRC]." (Jan. 7, 2020 

Decision at 5.) The court also noted "the attachments to plaintiff's complaint, which he 

incorporated into his complaint, allege that CoreCivic is an independent contractor and not 

an agent of [ODRC] and that Diamond Pharmacy Services is an independent contractor, 

rather than an agent of CoreCivic." (Jan. 7, 2020 Decision at 5.) The Court of Claims thus 

determined the "only evidence before the court is that CoreCivic controls the daily decisionmaking and details of the work at NEOCC"; further, that ODRC "is not involved in hiring, 

paying, supervising, disciplining, or terminating CoreCivic's employees," and that 

"CoreCivic maintains the premises of NEOCC and controls the hours worked and amount 

paid to its employees." (Jan. 7, 2020 Decision at 5-6.) The Court of Claims therefore 

concluded "there is no dispute that CoreCivic is an independent contractor and not an agent 

of [ODRC, and that ODRC] cannot be held liable for the negligence of its independent 

contractors." (Jan. 7, 2020 Decision at 6.) 

{¶ 15} Based on this court's de novo review of the record, we agree with the Court of 

Claims that the only evidence submitted on summary judgment regarding the relationship 

between ODRC and CoreCivic, including evidence as to right to control the mode and 

manner of performing the work, points to that of independent contractor status. Appellant 

produced no countervailing materials that would create a genuine issue of material fact as 

to the nature of CoreCivic's relationship with ODRC. In fact, as noted by the Court of 

Claims, the attachments to appellant's complaint included a copy of his 2018 common pleas 

complaint in which he alleged that CoreCivic "is an independent contractor and not an 

agent of" ODRC. (Jan. 7, 2020 Decision at 5.) Accordingly, the record supports the Court 

of Claims' determination that CoreCivic is an independent contractor and not an agent of 

ODRC, and we therefore find no merit to appellant's contention that issues of fact remain 

as to the liability of ORDC under theories of principal-agent or respondeat superior. 

{¶ 16} Apparently conceding that CoreCivic is an independent contractor of ODRC, 

appellant asserts the Court of Claims erred in failing to find ODRC liable under the doctrine 

of non-delegable duty for the alleged negligence of its independent contractor. Appellant, 

however, failed to raise before the Court of Claims, either in his pleading or in his 

memorandum in opposition to summary judgment, the claim that ODRC was liable on the 
No. 20AP-53 7 

basis of a non-delegable duty. Under Ohio law, "[i]ssues raised for the first time on appeal 

are deemed to have been waived or forfeited through failure to assert them before the trial 

court." Premiere Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No. 18AP-736, 2019-

Ohio-4015, ¶ 7. See also Tucker v. Leadership Academy for Math & Science of Columbus, 

10th Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20, quoting Henson v. Cleveland Steel 

Container Corp., 11th Dist. No. 2008-P-0053, 2009-Ohio-180, ¶ 77 ("while this court's 

standard of review on a motion for summary judgment is de novo, that standard 'does not 

supersede [an appellate court's] settled practice of not addressing issues raised for the first 

time on appeal' "). Having failed to raise the issue before the Court of Claims, appellant is 

barred from raising this theory of liability for the first time on appeal. While we conclude 

the issue was waived, we further note that appellant, while arguing on appeal that a nondelegable duty arose by contract, failed to submit any evidence on summary judgment 

regarding contractual provisions between ODRC and CoreCivic. 

{¶ 17} Finding no genuine issue of material fact as to CoreCivic's status as an 

independent contractor, we conclude the Court of Claims did not err in granting summary 

judgment in favor of ODRC. Based on the foregoing, appellant's two assignments of error 

are overruled, and the judgment of Court of Claims of Ohio is hereby affirmed. 

Judgment affirmed. 

KLATT and DORRIAN, JJ., concur. 

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