LISA L. SADLER, JUDGE
Sent to S.C. Reporter 12/20/23
Gary Peterson, Magistrate
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
LISA L. SADLER, JUDGE
{¶1} Before the Court are Plaintiffs Motion for Default Judgment and Motion for Summary Judgment and Defendant's Motion for Summary Judgment. For the following reasons, Plaintiffs Motions are DENIED and Defendant's Motion is GRANTED.
{¶2} Plaintiff filed a Motion for Default Judgment pursuant to Civ.R. 55 based on Defendant's alleged failure to submit evidence and meet its expert disclosure deadline. However, Defendant has not failed to defend against Plaintiff's claims, as Defendant timely filed and served a responsive pleading, its Answer to Plaintiff's Complaint. See Civ.R. 55(A); see also Discover Bank v. Schiefer, 10th Dist. Franklin No. 09AP-1178, 2010-Ohio-2980, ¶ 7, quoting Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 121, 502 N.E.2d 599 (1986) ("The Supreme Court of Ohio has noted that '[d]efault, under * * * Civ.R. 55(A), is a clearly defined concept. A default judgment is a judgment entered against a defendant who has failed to timely plead in response to an affirmative pleading.'"). Moreover, Civ.R. 55(D), in relevant part, provides that "[n]o judgment by default shall be entered against this state * * * or agency * * * unless the claimant establishes his claim * * * by evidence satisfactory to the court." As such, Plaintiff must still prove the merits of his claims. Accordingly, Plaintiff's Motion for Default Judgment is DENIED. Therefore, the Court will turn its analysis to the parties' cross Motions for Summary Judgment.
{¶3} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:
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 summary 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.
"[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 material fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶4} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
{¶5} Plaintiff's Complaint alleges injuries sustained from biting into a screw that was cooked and served in his food, and subsequent related events, at North Central Correctional Complex (NCCC), a privately owned prison operated by Management and Training Corporation (MTC). Plaintiff, who is self-represented, brings his claims against Defendant, Ohio Department of Rehabilitation & Correction, based on the doctrine of respondeat superior.
{¶6} In seeking summary judgment, Plaintiff asserts that he has met his burden for summary judgment because Defendant submitted no evidence and failed to meet its expert disclosure deadline. However, Plaintiff mistakenly shifts the burden of proof to Defendant to disprove his claims. The Supreme Court of Ohio has consistently held that it is a plaintiffs burden of persuasion to establish each element in the prima facie case. See Ahmad v. AK Steel Corp., 119 Ohio St.3d 1210, 2008-Ohio-4082, 893 N.E.2d 1287, ¶ 22, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984); see also Stinson v. England, 69, Ohio St.3d 451, 455-456, 633 N.E.2d 532 (1994). Plaintiff's Motion for Summary Judgment makes no mention of the claims, or their elements, to which he is seeking summary judgment or provide any admissible Civ.R. 56(C) evidence in support. Accordingly, Plaintiff has failed to prove there are no genuine issues of material fact on a material element of any of his claims and is not entitled to judgment as a matter of law and granting of summary judgment in his favor.
{¶7} Turning to Defendant's Motion for Summary Judgment, pursuant to the doctrine of respondeat superior, vicarious liability is imposed on employers for the tortious acts of employees or agents, but not for the tortious acts of independent contractors. Wright v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-153, 2014-Ohio-4359, ¶ 8. The primary factor used to determine whether one is an employee or an independent contractor is control. See id. ¶ 9. "If an employer retains control of the right to control the mode and manner of doing the work contracted for, then the relationship is one of principal and agent." Id., citing Councell v. Douglas, 163 Ohio St. 292, 126 N.E.2d 597 (1955), paragraph one of the syllabus. However, "if the employer merely dictates the ultimate result to be accomplished, then the relationship is one of employer and independent contractor." Id., citing Councell at paragraph one of the syllabus.
{¶8} Courts look at various factors when determining whether an employer has the requisite "degree of control necessary to establish agency." Id. ¶ 10. These factors include:
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., citing
State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777,
991 N.E.2d 218, ¶ 35.
{¶9} Defendant seeks summary judgment on the basis that NCCC is a privately run prison by MTC and its employees are independent contractors and not agents of Defendant. In support of its Motion, Defendant submitted the affidavit of Edward Banks, Defendant's Assistant Director (Sept. 12, 2023 Affidavit of Edward Banks ¶¶ 1-2). In his affidavit, Banks elaborated on Defendant's relationship with MTC and NCCC. Pursuant to a contract with Defendant, NCCC is independently operated, maintained, staffed, and controlled by MTC. (Banks Aff. ¶¶ 4; 6-7). MTC maintains the premises of NCCC and procures all necessary supplies and equipment. (Banks Aff. ¶ 5). The corrections officers and staff at NCCC are employees or agents of MTC, who dictates both their hours and rate of pay. (Banks Aff. ¶ 9). Defendant has no role in their hiring, training, or supervision. (Banks Aff. ¶ 8). Moreover, Defendant is not involved in MTC's decision-making, does not control the details of MTC's work at NCCC, and is not involved in NCCC's daily operation. (Banks Aff. ¶ 7). Applying Banks' affidavit to the factors set forth in Wright, Defendant has met its initial burden, pursuant to Civ.R. 56(C), by establishing that there are no genuine issues of material fact regarding its lack of control over MTC employees and its lack of control over the operation of NCCC.
{¶10} As with any factual issue on summary judgment, "[i]f the opposing parties present evidence on both sides of the issue, then summary judgment is inappropriate, and a finder of fact must decide the issue." Wright at ¶ 11. While Plaintiff's Response states that he can "show that MTC is an agent of [Defendant]" using Wright, this unsupported assertion does not specifically address the factors set forth in Wright or otherwise create an issue of material fact regarding Defendant's lack of control over MTC employees or the operation of NCCC. Moreover, Plaintiffs Response does not provide or point to any admissible Civ.R. 56(C) evidence in support of his claims that respondeat superior should be applied in his case. Plaintiffs response is conclusory in that Plaintiff essentially asserts that he is in Defendant's custody and, therefore, that Defendant is liable for his injuries. As such, Plaintiff's Response does not demonstrate the existence of a genuine issue of material fact regarding Defendant's lack of control. As respondeat superior does not apply under the facts before the Court in this case, Defendant cannot be held vicariously liable for the actions of MTC's employees at NCCC. Accordingly, Defendant is entitled to judgment as a matter of law and granting of summary judgment in its favor.
Plaintiff's Response, filed October 4, 2023, is titled "Opposition of Defendant" and is construed by the Court as a joint Memorandum in Opposition to Defendant's Motion for Summary Judgment and Memorandum in Support of his Motion for Default Judgment and Motion for Summary Judgment.
Notably, in rendering judgment for Defendant, the Court has previously held the same conclusion that MTC at NCCC is not an agent of Defendant by applying the Wright factor analysis. See, e.g., Dent v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2014-00562JD (June 2, 2016), aff'd, Ct. of Cl. No. 2014-00562JD (July 5, 2016).
{¶11} Defendant has met its initial burden, pursuant to Civ.R. 56(C), by showing that there are no genuine issues of material fact regarding Defendant's lack of control over MTC employees or the operation of NCCC. Plaintiff failed to meet his reciprocal burden, pursuant to Civ.R. 56(E), that a genuine issue of material fact exists regarding Defendant's lack of control. Moreover, Plaintiff also failed to meet his initial burden, pursuant to Civ.R. 56(C), to properly show that there are no genuine issues of material fact on a material element of any of his claims.
{¶12} Accordingly, Plaintiff's Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED. All previously scheduled events are VACATED. Court costs are assessed against Plaintiff. The Clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.