Perry v. S. Ohio Correctional Facility
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[Cite as Perry v. S. Ohio Correctional Facility, 2007-Ohio-3859.] 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 MARQUISE PERRY Plaintiff Case No. 2006-06787 Judge J. Craig Wright Magistrate Matthew C. Rambo v. MAGISTRATE DECISION SOUTHERN OHIO CORRECTIONAL FACILITY, et al. Defendants {¶1} On November 27, 2006, defendants filed a motion for partial dismissal of plaintiff s complaint pursuant to Civ.R. 12(B)(6). Plaintiff did not file a response. On January 18, 2007, an oral hearing was held at the Southern Ohio Correctional Facility (SOCF) on defendants motion. {¶2} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190. Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242. {¶3} At all times relevant to this action plaintiff was an inmate in the custody and control of defendants at SOCF pursuant to R.C. 5120.16. Plaintiff asserts that defendants employees violated Department of Rehabilitation and Correction (DRC) Special Management Procedure 55-SPC-02. Specifically, plaintiff claims that he did not receive regularly scheduled visits from defendants employees Major Warren, SOCF Warden Edwin Voorhies, James Goodman, Cynthia Davis, Matthew Stuntebeck, an unidentified qualified health care professional, an unidentified deputy warden, an unidentified senior correctional supervisor, and the P.A.M. Plaintiff also claims that his meals were not Case No. 2006-06787 -2- MAGISTRATE DECISION served in accordance with DRC policy. Finally, plaintiff alleges that defendants employees used excessive force while restraining him. {¶4} Defendants argue that implementation of the policies cited in plaintiff s complaint involves a high degree of official discretion and that, therefore, defendants and their employees are immune from liability. {¶5} The Supreme Court of Ohio has held that [t]he language in R.C. 2743.02 that the state shall have its liability determined *** in accordance with the same rules of law applicable to suits between private parties *** means that the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. Reynolds v. State (1984), 14 Ohio St.3d 68, 70; Van Hoene v. State (1985), 20 Ohio App.3d 363, 364. Additionally, [p]rison regulations *** are primarily designed to guide correctional officials in prison administration rather than to confer rights on inmates. State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479, 1997-Ohio-139. Accordingly, plaintiff s claims based upon alleged violations of internal DRC policies must fail. {¶6} Furthermore, to the extent that plaintiff claims violations of his civil and constitutional rights, it is well-settled that such claims are not actionable in the Court of Claims. See Thompson v. Southern State Community College (June 15, 1989), Franklin App. No. 89AP-114; Burkey v. Southern Ohio Corr. Facility (1988), 38 Ohio App.3d 170. {¶7} Based upon the foregoing analysis, it is recommended that defendants motion be granted and that judgment be rendered in favor of defendants on the above-referenced claims. Plaintiff s claim alleging excessive use of force is the only claim remaining for trial. A party may file written objections to the magistrate s decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other Case No. 2006-06787 -3- MAGISTRATE DECISION party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b). _____________________________________ MATTHEW C. RAMBO Magistrate cc: Marquise Perry, #488-417 Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699 RCV/cmd Filed May 17, 2007 To S.C. reporter July 30, 2007 Daniel R. Forsythe Assistant Attorney General 150 East Gay Street, 23rd Floor Columbus, Ohio 43215-3130
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