[Cite as Brooks v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-5277.]

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 

ULIOUS BROOKS 

 Plaintiff 

 v. 

OHIO DEPT. OF REHABILITATION AND CORRECTIONS 

 Defendant 

Case No. 2012-04111-AD 

Deputy Clerk Daniel R. Borchert 

ENTRY OF DISMISSAL

{¶1} On May 21, 2012, plaintiff, Ulious Brooks, filed a complaint against 

defendant, Sergeant McCroskey, defendant’s correctional officer. On May 22, 2012, 

this court issued a pre-screening entry dismissing Sergeant McCroskey as defendant 

and requiring the plaintiff to file an amended complaint naming a state entity as a party 

defendant. Plaintiff was also required to submit either the $25 filing fee or a poverty 

statement. 

{¶2} On May 25, 2012, plaintiff filed an amended complaint. Plaintiff alleges 

that on or about April 16, 2012, his radio and headphones were stolen by Corrections 

Officer Mullins. Plaintiff asserted that when he notified Sergeant McCroskey concerning 

the theft, Sergeant McCroskey stole his CD player, altered it, wrongfully wrote him up 

for a contraband violation, forged his signature on the conduct report and destroyed his 

CD player without the benefit of a due process hearing. 

{¶3} On June 5, 2012, this court issued an entry again dismissing Sergeant 

McCroskey as defendant and finding plaintiff’s poverty statement valid for the purpose 
Case No. 2012-04111-AD - 2 - ENTRY

of waiving the filing fee only. 

{¶4} On or about June 13, 2012, defendant was served with plaintiff’s 

complaint. On August 21, 2012, this court issued an entry ordering the defendant to 

submit the investigation report within 14 days of this entry. 

{¶5} On August 20, 2012, plaintiff filed a motion for sanctions based on the 

defendant’s failure to timely file the investigation report. Only a judge of the Court of 

Claims has the authority to issue sanctions against a party. Accordingly, plaintiff’s 

motion is DENIED as the Deputy Clerk does not possess such power. 

{¶6} On August 20, 2012, plaintiff filed motions for summary judgment and 

default judgment. 

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

{¶8} “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 facts 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 to stipulation construed most strongly in the party’s favor.” See 

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

United, Inc., 50 Ohio St. 2d 317, 364 N.E. 2d 267 (1977). 

{¶9} Plaintiff asserts that summary judgment should be granted in his favor 

based on the defendant’s failure to timely submit the investigation report. However, 

defendant’s investigation report was timely submitted pursuant to this court’s order of 

May 25, 2011. A summary judgment against the defendant may not solely be granted 
Case No. 2012-04111-AD - 3 - ENTRY

based on procedural errors committed by the defendant. A review of the plaintiff’s 

pleadings and attachments reveals that there is no genuine issue as to a material fact 

and the plaintiff is not granted judgment as a matter of law. 

{¶10} Civ.R. 55(D) in pertinent part states: 

{¶11} “No judgment by default shall be entered against this state . . . or agency . 

. . unless the claimant establishes his claim by a preponderance of the evidence. 

Default judgment may not be granted against the state based solely on procedural 

errors made by the defendant. Dearing v. Ohio Department of Rehabilitation and 

Correction, 2011-09560-AD (2011). 

{¶12} On September 7, 2012, defendant filed a motion for extension of time due 

to staffing difficulties. On September 11, 2012 and October 24, 2012, plaintiff again 

filed motions for default judgment based on the defendant’s failure to timely file the 

investigation report. 

{¶13} After a review of plaintiff’s pleadings, plaintiff contends that C/O Mullins 

and C/O McCroskey engaged in intentional conduct. Plaintiff asserts C/O Mullins stole 

his radio and headphones, while C/O McCroskey stole his CD player, altered it, forged a 

conduct report, and had his CD player unlawfully destroyed. In the context to determine 

if defendant 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., 92 Ohio App. 3d 772, 775, 637 N.E. 2d 106 (10th Dist. 1994); Thomas v. Ohio 

Dept. of Rehab. & Corr., 48 Ohio App. 3d 86, 89, 548 N.E. 2d 991 (10th Dist. 1988); and 

Peppers v. Ohio Dept. of Rehab. & Corr., 50 Ohio App. 3d 87, 90, 553 N.E. 2d 1093 

(10th Dist. 1988). 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, 1 Ohio App. 3d 60, 61, 439 N.E. 2d 437 (10th Dist. 1980). The act 

must be so divergent that it severs the employer-employee relationship. Elliott, at 775 
Case No. 2012-04111-AD - 4 - ENTRY

citing Thomas, at 89, and Peppers, at 90. 

{¶14} 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. Jackson 

v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio App. 3d 448, 453-454, 602 N.E. 2d 663 

(12th Dist. 1991); citing Teramano v. Teramano, 6 Ohio St. 2d 117, 118, 216 N.E. 2d 

375 (1966); and Bush v. Kelly’s Inc., 18 Ohio St. 89, 217 N.E. 2d 745 (1969). 

{¶15} 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, 57 Ohio 

St. 3d 56, 565 N.E. 2d 584 (1991), citing Little Miami RR. Co. v. Wetmore, 19 Ohio St. 

110 (1869), and Taylor v. Doctors Hosp., 21 Ohio App. 3d 154, 486 N.E. 2d 249 (10th

Dist. 1985). 

{¶16} 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., 79 Ohio App. 3d 303, 607 

N.E. 2d 103 (10th Dist. 1992), citing Vrabel v. Acri, 156 Ohio St. 467, 103 N.E. 2d 564 

(1952). The facts of this case, taken as plaintiff asserted, 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. 

{¶17} Civ.R. 12(H)(3) states: 

{¶18} “Whenever it appears by suggestion of the parties or otherwise that the 

court lacks jurisdiction on the subject matter, the court shall dismiss the action. 

{¶19} Based on plaintiff’s pleadings which assert the sole cause of his property 

loss was defendant’s employees and since theft and forgery are actions beyond the 
Case No. 2012-04111-AD - 5 - ENTRY

scope of the employees employment, defendant as a matter of law is not responsible for 

the criminal actions of its employees. Therefore, plaintiff’s complaint is DISMISSED. 

Court costs are assessed against plaintiff. 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Ulious Brooks #453-172 Trevor Clark 

1724 State Route 728 Department of Rehabilitation 

Lucasville, Ohio 45699 770 West Broad Street 

 Columbus, Ohio 43222 

DRB/laa 

Filed 11/2/12 

sent to S.C. Reporter 11/14/12