Claren v. Grafton Correctional Inst.
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[Cite as Claren v. Grafton Correctional Inst., 2005-Ohio-5070.]
IN THE COURT OF CLAIMS OF OHIO
www.cco.state.oh.us
PAUL ROBERT CLAREN
:
Plaintiff
:
v.
:
GRAFTON CORRECTIONAL INSTITUTE :
Defendant
CASE NO. 2005-07305-AD
Judge J. Craig Wright
Magistrate Steven A. Larson
DECISION
:
: : : : : : : : : : : : : : : : :
{¶ 1} On July 5, 2005, defendant filed a motion to dismiss
plaintiff’s complaint pursuant to Civ.R. 12(B)(1) and (6).
On
August 2, 2005, plaintiff filed a response.
{¶ 2} Defendant asserts that the court lacks subject matter
jurisdiction to hear many of plaintiff’s claims.
Defendant argues
that plaintiff’s remaining claims are barred by the applicable
statutes of limitations.
{¶ 3} The standard to apply for a dismissal pursuant to Civ.R.
12(B)(1)
for
lack
of
subject
matter
jurisdiction
is
whether
plaintiff has alleged any cause of action cognizable by the forum.
See Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio
App.3d 65.
A motion to dismiss a complaint under Civ.R. 12(B)(6)
based upon the bar of the statute of limitations may be granted
only if the face of plaintiff’s complaint conclusively establishes
such a bar.
Scheer v. Air-Shields, Inc. (1979), 61 Ohio App.2d
205.
{¶ 4} It is not disputed that at all times relevant to this
action plaintiff was an inmate at Grafton Correctional Institution
in the custody and control of defendant pursuant to R.C. 5120.16.
Plaintiff’s complaint alleges claims for conversion, retaliation,
and medical negligence.
{¶ 5} To
the
extent
that
plaintiff
alleges
that
defendant
retaliated against him for filing a federal lawsuit, his claims are
to be treated as violations of Section 1983, Title 42, U.S.Code.
See Deavors v. Ohio Dept. of Rehab. & Corr. (May 20, 1999),
Franklin App. No. 98AP-1105.
Actions against the state under
Section 1983, Title 42, U.S.Code may not be brought in the Court of
Claims because the state is not a “person” within the meaning of
Section 1983.
Id.
See, also, Burkey v. Southern Ohio Correctional
Facility (1988), 38 Ohio App.3d 170.
Thus, this court is without
jurisdiction to hear plaintiff’s claim for retaliation.
{¶ 6} To the extent that plaintiff alleges that he did not
receive adequate medical care in May 2004, a cause of action for
medical
negligence
is
governed
by
the
limitations as set forth in R.C. 2305.11.
one-year
statute
of
The complaint in this
action was not filed until June 6, 2005, more than one year after
his cause of action accrued.
Therefore, plaintiff’s claim for
medical negligence is barred by the statute of limitations.
{¶ 7} With
respect
to
plaintiff’s
claim
of
conversion,
he
alleges that on or about February 12, 2003, while he was being held
in isolation, defendant stole four “Maxim” magazines belonging to
plaintiff.
Claims based upon the wrongful taking of personal
property are generally subject to the four-year limitations of
action period set forth in R.C. 2305.09.
However, R.C. 2743.16(A)
provides:
{¶ 8} “(A) Subject to division (B) of this section, civil
actions against the state permitted by sections 2743.01 to 2743.20
of the Revised Code shall be commenced no later than two years
after the date of accrual of the cause of action or within any
shorter period that is applicable to similar suits between private
parties.”
{¶ 9} Thus, plaintiff’s conversion claim is governed by the
two-year
statute
of
limitations
set
forth
in
R.C.
2743.16.
Applying R.C. 2743.16, the statutory period for plaintiff to file
his conversion claim against the state ended on February 14, 2005.
Plaintiff contends, however, that his claim is subject to the
savings provisions of R.C. 2305.19.
{¶ 10}
R.C. 2305.19 provides in relevant part:
{¶ 11}
“In an action commenced, or attempted to be commenced,
if in due time a judgment for the plaintiff is reversed, or if the
plaintiff fails otherwise than upon the merits, and the time
limited for the commencement of such action at the date of reversal
or failure has expired, the plaintiff, or, if he dies and the cause
of action survives, his representatives may commence a new action
within one year after such date.
{¶ 12}
dismiss,
***”
In his memorandum in opposition to the motion to
plaintiff
states
that
he
timely
filed
his
claim
of
conversion on January 4, 2005, in the United States District Court,
Northern District of Ohio, Case No. 1:05CV0012, and that on April
7, 2005, the district court dismissed his claim for reasons other
than on the merits.
Although plaintiff’s assertions regarding his
district court case are not set forth in the complaint, the court
is reluctant to dismiss the claim as being time-barred under
circumstances where the savings statute may apply.
{¶ 13}
For
the
foregoing
reasons,
defendant’s
motion
to
dismiss shall be granted, in part, as to plaintiff’s claims of
retaliation and medical negligence.
Additionally, the court finds
that plaintiff’s remaining claim for conversion of Maxim magazines
is a claim of $2,500 or less.
Accordingly, this case shall be
transferred to the administrative determination docket. See R.C.
2743.10.
IN THE COURT OF CLAIMS OF OHIO
www.cco.state.oh.us
PAUL ROBERT CLAREN
:
Plaintiff
:
v.
:
GRAFTON CORRECTIONAL INSTITUTE :
CASE NO. 2005-07305-AD
Judge J. Craig Wright
Magistrate Steven A. Larson
Defendant
JUDGMENT ENTRY
:
: : : : : : : : : : : : : : : : :
The court has considered the evidence and, for the reasons set
forth in the decision filed concurrently herewith, defendant’s
motion to dismiss is GRANTED, in part, as to plaintiff’s claims of
retaliation and medical negligence.
Additionally, the court finds that the value of plaintiff’s
remaining claim is $2,500 or less.
Accordingly, this case is
hereby TRANSFERRED to the administrative docket.
The case shall be
processed accordingly.
___________________________________
J. CRAIG WRIGHT
Judge
Entry cc:
Paul Robert Claren, #421-270
Grafton Correctional Institute
2500 S. Avon-Belden Road
Grafton, Ohio 44044
Plaintiff, Pro se
Eric A. Walker
Assistant Attorney General
Attorney for Defendant
150 East Gay Street, 23rd Floor
Columbus, Ohio 43215-3130
LP/AS/cmd/Filed
September 13, 2005/To S.C. reporter September 26, 2005
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