Gibbs v. Ross Correctional Inst.
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[Cite as Gibbs v. Ross Correctional Inst., 2005-Ohio-6281.] IN THE COURT OF CLAIMS OF OHIO DERRICK GIBBS : Plaintiff : v. : CASE NO. 2005-07925-AD : ENTRY OF DISMISSAL ROSS CORRECTIONAL INST. Defendant : : : : : : : : : : : : : : : : : : {¶ 1} On June 30, 2005, plaintiff filed a complaint against defendant, Ross Correctional Institution. Plaintiff alleges on May 4, 2005, his radio was confiscated by defendant as the result of a conduct report. Plaintiff asserts when the radio was confiscated it was damaged by one of defendant s agents. confiscation, plaintiff was ordered to As a result of the send the radio home. Plaintiff seeks damages in the amount of $73.00 for the radio, postage incurred to send the radio home, and reimbursement of the $25.00 filing fee which plaintiff submitted on July 8, 2005. {¶ 2} On September 2, 2005, defendant filed a motion to dismiss. Defendant asserts plaintiff s claim should be dismissed pursuant to Civ.. 12, lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Defendant asserts plaintiff by filing this action is seeking to appeal the decision of the hearing officer relating to the finding that his radio was contraband and should be sent home. Furthermore, defendant contends plaintiff has no right to assert a claim for contraband property he has no right to possess. {¶ 3} On September 14, 2005, plaintiff filed a response to Case No. 2005-07925-AD -2- ENTRY defendant s motion to dismiss, however, he did not serve this motion on defendant and the motion contained no certificate of service as required by Civ. R. 5. Accordingly, plaintiff s response is stricken. {¶ 4} Evidence in the claim file reveals plaintiff was found guilty of a rule 21 violation, disobedience of a direct order by a hearing officer on May 10, 2005. The hearing officer ordered the radio to be sent home at plaintiff s expense. the right to appeal this report. appealed the decision Infraction Board. of the Plaintiff was given There is no evidence plaintiff hearing officer to the Rules Also, defendant conducted an investigation and concluded the radio was not damaged prior to being sent home, only the back cover was missing. {¶ 5} The basis of plaintiff s case is an appeal of the decision rendered by the hearing officer with respect to his radio. Plaintiff should have sought recourse with an appeal to the Rules Infraction Board not this court. plaintiff, of his own administrative remedies. No redress can be given where violation, failed to exhaust his Foy v. Department of Rehabilitation and Correction (1985), 85-01732-AD. Assuming arguendo that plaintiff appealed to the Rules Infraction Board, such an appeal does not relate to civil Accordingly, law. this court Maynard does v. not Jago have decisions of the Rules Infraction Board. Rehabilitation and Correction (1985), (1977), 76-0581-AD. jurisdiction over the Chatman v. Dept. of 84-06323-AD; Ryan v. Chillicothe Institution (1981), 81-05181-AD; Rierson v. Department of Rehabilitation (1981), 80-00860-AD. {¶ 6} Having considered all the evidence in the claim file and, for the reasons set forth above, defendant s motion to dismiss is Case No. 2005-07925-AD GRANTED. -2- ENTRY Plaintiff s case is DISMISSED. the court costs of this case. The court shall absorb The clerk shall serve upon all parties notice of this entry of dismissal and its date of entry upon the journal. ____________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Derrick Gibbs, #458-893 P.O. Box 7010 Chillicothe, Ohio 45601 Plaintiff, Pro se Stephen A. Young, Staff Counsel Department of Rehabilitation and Correction 1050 Freeway Drive North Columbus, Ohio 43229 For Defendant DRB/laa 10/26 Filed 11/10/05 Sent to S.C. reporter 11/22/05
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