[Cite as Scott v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-6326.]

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

AARON SCOTT 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

LARRY SOLOMON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

ANTHONY MOODY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND

JAMEEL HAAMID 

 Plaintiff 

 v. 
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

JOHN W. FORESTER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

THOMAS STALLINGS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND

LAVANCE TURNAGE 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

FRANK E. TYSON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 
 Defendant 

 AND 

JOSEPH N. WILLIAMS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND

MICHAEL EVANS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant

Case Nos. 2011-11157, 2011-11165, 2011-11173, 2011-11432, 2011-12056, 2011-

12137, 2011-13061, 2011-13249, 2012-01554, 2012-02089 

Judge Alan C. Travis 

Magistrate Matthew C. Rambo 

DECISION

{¶ 1} On April 27, 2012, the parties filed cross-motions for summary judgment 

pursuant to Civ.R. 56(A) and (B). On May 22, 2012, plaintiffs filed a response to 

defendant’s motion. On June 15, 2012, defendant filed a response to plaintiffs’ motion. 

On June 22, 2012, plaintiffs filed a reply. The motions are now before the court for a 

non-oral hearing pursuant to L.C.C.R. 4(D). 

{¶ 2} Civ.R. 56(C) states, in part, as follows: 

{¶ 3} “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. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can 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 or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶ 4} Plaintiffs are ten inmates in the custody and control of defendant at the 

Mansfield Correctional Institution (ManCI) who allege that defendant is responsible for 

the release of private medical information. Plaintiffs are either being treated for the 

human immunodeficiency virus (HIV) or are “chronic care” patients and they allege that 

ManCI negligently released a list of all such inmates “to the general population” at 

ManCI. Plaintiffs assert that the list at issue was widely circulated at ManCI, that they 

suffer “taunts, harassment, threats, emotional distress, anxiety, and fear” as a result, 

and that other inmates now believe that all of the patients on the list, including the 

chronic care patients, are HIV positive. 

{¶ 5} Plaintiffs argue that defendant committed an invasion of plaintiffs’ privacy by 

disclosing private medical information to a third party without the authorization or 

privilege to do so. Plaintiffs further argue that defendant’s security and disposal 

procedures with respect to confidential medical records are inadequate and that they do 

not comply with the “Stipulation for Injunctive Relief” agreement that defendant entered 

into in Fussell v. Wilkinson, S.D.Ohio No. 1:03-cv-704 (Nov. 5, 2005). Defendant 

argues that plaintiffs have asserted constitutional claims over which this court lacks 

jurisdiction and, in the alternative, that plaintiffs’ claims fail because defendant’s 

employees did not “disclose” the information. 

{¶ 6} The deposition transcripts of Sharon Welch and inmates Phillip Kukla and 

Kenneth Kirks were filed by plaintiffs. Kirks testified that while picking up trash in the 

loading dock area as part of his kitchen duties, he found a list of names and numbers of 

other inmates who were identified as having received treatment for HIV. (Kirks 

Deposition Exhibit 2.) According to Kirks, he was using a power washer to clean under 

a dumpster and the list “blew out” from underneath. Kirks stated that he then showed 
the list to Kukla, whose cellmate was on the list, and who then made copies of the list 

that were disseminated throughout the ManCI inmate population.1

 

{¶ 7} Kukla offered a different version of the circumstances surrounding the 

discovery of the list. In his deposition, Kukla testified that Kirks lied about giving him the 

list and that he has never possessed a copy of the list. According to Kukla, he and 

Kirks were not cleaning the area when Kirks found the list, but were loading food into a 

freezer truck because the freezers in the kitchen were shut off. Kukla stated that Kirks 

showed him the list after they were finished working, told him he found it on the loading 

dock and described it as a “gold mine” that he could use to extort the inmates on the list. 

Kukla testified that while he and Kirks were working, he witnessed Alice Cain, who was 

then the ManCI Healthcare Administrator, escort an inmate worker who threw a large 

bag of trash into the dumpster and that there was “always paper flying” in the loading 

dock area. He further testified that Kirks would go into the dumpster and look through 

the trash “all the time” for contraband that had been thrown away by corrections officers. 

{¶ 8} Sharon Welch worked at ManCI as a pharmacy technician filling inmate 

prescriptions in June 2011. Welch testified at her deposition that she used a list with 

inmates’ names on it to fill prescriptions for both HIV and chronic care patients. She 

stated that the list in question was one such list that she had used to fill prescriptions 

and then thrown into the trash can in the pharmacy. According to Welch, she then 

emptied the trash can into a trash bag, set the bag outside the back door of the 

pharmacy, then an inmate worker collected it and took it to the dumpster, at which point 

“any inmate” would have access to it. Welch testified that there was no specific policy 

or procedure in place at the time regarding the disposal of the list, but that one has 

since been implemented. Welch stated that Ms. Cain made her aware that the list had 

been circulated among the inmates, but that she is unaware of any other incidents 

regarding inmate medical records in her prior 16 years of employment at ManCI.2

 1

Additionally, plaintiff Tyson amended his complaint to include a claim whereby another ManCI 

inmate came into possession of the documents relating to Tyson’s mental health treatment, made copies 

of those documents, and posted them to the ManCI library and recreation areas. He does not allege how 

the inmate came into possession of the documents. 2

Plaintiffs also provided the affidavit of Haamid; however, it is clear that none of the averments 

contained therein, other than his identification and authentication of a copy of the list previously identified 

by Kirks, are based on his personal knowledge and will not be considered by the court. 
{¶ 9} In support of its motion, defendant filed affidavits from Alice Cain, E. 

Hermann, and Welch. Cain states she was employed at ManCI as the Healthcare 

Administrator at the time of the incident and that: 

{¶ 10} “3. On January 7, 2011, Marilyn Christopher, RN2, generated a chronic 

care list of inmates receiving medications normally prescribed to individuals with [HIV]; 

{¶ 11} “4. Not all the inmates named on the chronic care list were HIV positive. 

Some inmates are on the list only because they receive the same or similar 

medications; 

{¶ 12} “5. The chronic care list is not part of the inmates’ medical record; 

{¶ 13} “6. It is very important for HIV patients to closely follow their drug 

regimens, and so the pharmacy reviews this list to ensure that these inmates are 

regularly receiving their medications; 

{¶ 14} “7. Also, these medications represent some of the [most] costly 

medications administered by [defendant]. Maintaining a chronic care list of inmates 

receiving these medications allows [defendant] to control its stock, adjust inventory 

accordingly, and help control costs of treating these inmates; 

{¶ 15} “8. It is the typical practice of [defendant’s] pharmacy to dispose of its 

trash with other trash from the health care center; 

{¶ 16} “9. Trash to be disposed is kept in a back hallway, and a [member of 

defendant’s staff] must unlock the door that leads to an outside dumpster. That staff 

person would either dispose of the trash him/herself or supervise the inmate porters 

disposing of the trash. The door to the outside dumpster would then be relocked; 

{¶ 17} “10. That dumpster would then be taken to a locked 

dumpster, where its contents would be disposed of again; 

{¶ 18} “11. Inmates Kirks and Kukla were not inmates 

working in the health care center; 

{¶ 19} “12. Inmates [Kirks and Kukla] would have had to 

go through the dumpster of trash bags, opened the trash bags, and then searched 

through the trash bags to find the chronic care list that they later disseminated.” 

{¶ 20} In her affidavit, Welch clarifies that at the time her deposition was taken 

she did not have personal knowledge of the trash collection procedures at ManCI 

beyond placing the trash bag outside of the pharmacy door and that her statement that 

“any inmate” had access to the trash was speculation. 
{¶ 21} Corrections Officer E. Hermann averred that as part of his regular duties 

he supervises inmates taking trash carts to the trash compactor for disposal. In his 

affidavit, Hermann testified as to the regular trash disposal practice at ManCI, but did 

not aver that the practice was in place during June 2011. Therefore, his affidavit will not 

be considered by the court. 

{¶ 22} While it is well-settled that the Court of Claims lacks subject matter 

jurisdiction over claims based upon alleged violations of a constitutionally guaranteed 

right to privacy, see Thompson v. S. State Community College, 10th Dist. No. 89AP-114 

(June 15, 1989); Burkey v. S. Ohio Corr. Facility, 38 Ohio App.3d 170 (10th Dist.1988), 

“[i]n Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a 

third party of nonpublic medical information that a physician or hospital has learned 

within a physician-patient relationship.” Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 

395, 1999-Ohio-115, paragraph one of the syllabus. The Supreme Court of Ohio 

recognized the tort in Biddle based upon the policy that “[i]n general, a person’s medical 

records are confidential. Numerous state and federal laws recognize and protect an 

individual's interest in ensuring that his or her medical information remains so.” 

Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, ¶ 9. 

“Indeed, even a prison inmate’s personal medical records are qualifiedly protected from 

disclosure and are not ‘public’ records per se.” Wilson v. Ohio Dept. of Rehab. & Corr., 

73 Ohio App.3d 496, 499 (1991). 

{¶ 23} This court has previously found liability where an employee of defendant 

voluntarily disclosed an inmate’s private medical information to a third party without 

authorization or privilege. See MacConnell v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. 

No. 2008-10528, 2012-Ohio-283. 

{¶ 24} The list at issue identifies plaintiffs Scott, Solomon, Moody, Haamid, 

Stallings, and Williams as patients receiving HIV “protocol.”3

 With regard to these 

plaintiffs, the court finds that the evidence presented establishes that nonpublic medical 

information about such plaintiffs was obtained from defendant by third parties. The 

question is whether the actions of defendant’s employees with regard to that information 

constituted an “unauthorized, unprivileged disclosure” of that information. Indeed, the 

 3

The names and identifying information of plaintiffs Forester, Turnage, Tyson, and Evans does 

not appear on the list at issue. Thus, no private information about such plaintiffs was disclosed and the 

court finds that their claims are without merit. 
court finds that MacConnell, Biddle, and Hageman hinged on whether there was an 

affirmative act of disclosure of privileged information. In this case, Welch did not 

commit an affirmative act of disclosure, inasmuch as she merely placed the list in the 

trash can, as she had done on numerous prior occasions. Therefore, the court finds 

that defendant did not “disclose” private medical information to a third party without the 

authorization or privilege to do so as it relates to the claims of these plaintiffs.4 

{¶ 25} To the extent that plaintiffs argue that defendant was negligent in the way 

it disposed of the list and in its handling of trash in general, the Supreme Court of Ohio 

has held that “[t]he language in R.C. 2743.02 that ‘the state’ shall ‘have its liability 

determined * * * in accordance with the same rules of law applicable to suits between 

private parties * * *’ means that the state cannot be sued for its legislative or judicial 

functions or the exercise of an executive or planning function involving the making of a 

basic policy decision which is characterized by the exercise of a high degree of official 

judgment or discretion.” Reynolds v. State, 14 Ohio St.3d 68, 70 (1984); Von Hoene v. 

State, 20 Ohio App.3d 363, 364 (1st Dist.1985). Prison administrators are provided 

“wide-ranging deference in the adoption and execution of policies and practices that in 

their judgment are needed to preserve internal order and discipline and to maintain 

institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). 

{¶ 26} The court finds that defendant’s decisions with respect to the procedures 

for disposing of documents used by the pharmacy are characterized by the exercise of 

a high degree of official judgment and discretion and that defendant is entitled to 

discretionary immunity for claims arising therefrom. 

{¶ 27} Addressing plaintiffs’ arguments that defendant violated the “Stipulation for 

Injunctive Relief,” entered into in Fussell, supra, the court finds that such agreement 

was wide-ranging and dealt with a plethora of issues relating to the conditions under 

which inmates in the state of Ohio are incarcerated. Included in the stipulation are 

provisions to “assure the confidentiality” of inmates’ “health records.” Fussell, ¶ 119. 

The stipulation remained in force until June 22, 2012, and included a mandatory dispute 

resolution process for any dispute arising thereunder as to whether defendant was in 

compliance with the stipulation. Fussell, ¶ 140-142; see also Greene v. Mohr, S.D. 

 4

Plaintiff Tyson failed to allege any improper disclosure of his mental health records, and did not 

provide any evidence to establish that such a disclosure took place. Accordingly, his claim is without 

merit. 
Ohio No. 1:12-cv-144 (April 11, 2012). Thus, this court is without jurisdiction to 

adjudicate any claims arising from the Fussell agreement. 

{¶ 28} Based upon the foregoing, plaintiffs’ motion for summary judgment shall be 

denied and defendant’s motion for summary judgment shall be granted. Judgment shall 

be rendered in favor of defendant. 

 
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 

AARON SCOTT 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

LARRY SOLOMON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

ANTHONY MOODY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND

JAMEEL HAAMID 

 Plaintiff 

 v. 
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

JOHN W. FORESTER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

THOMAS STALLINGS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND

LAVANCE TURNAGE 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND 

FRANK E. TYSON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 
 AND 

JOSEPH N. WILLIAMS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant 

 AND

MICHAEL EVANS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION 

 Defendant

Case Nos. 2011-11157, 2011-11165, 2011-11173, 2011-11432, 2011-12056, 2011-

12137, 2011-13061, 2011-13249, 2012-01554, 2012-02089 

Judge Alan C. Travis 

Magistrate Matthew C. Rambo 

JUDGMENT ENTRY

{¶ 29} A non-oral hearing was conducted in this case upon the parties’ motions 

for summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, plaintiffs’ motion for summary judgment is DENIED and defendant’s motion for 

summary judgment is GRANTED. Judgment is rendered in favor of defendants. All 

previously scheduled events are VACATED. Court costs are assessed against 

plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of 

entry upon the journal. 

 

 _____________________________________ 

 ALAN C. TRAVIS 

 Judge 
cc: 

 

Kristin S. Boggs 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Richard F. Swope 

6480 East Main Street, Suite 102 

Reynoldsburg, Ohio 43068 

005 

Filed August 1, 2012 

To S.C. Reporter January 17, 2013