[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 SUPPORTING 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 ACKNOWLEDGE 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 wellestablished 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. CarnegieIllinois 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.