[Cite as Jones v. Chillicothe Corr. Inst., 2012-Ohio-1762.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ardell P. Jones,
:
Plaintiff-Appellant,
:
No. 11AP-758
v.
:
Chillicothe Correctional Institution,
:
Defendant-Appellee.
(Ct. of Cl. No. 2011-05866)
(ACCELERATED CALENDAR)
:
D E C I S I O N
Rendered on April 19, 2012
Ardell P. Jones, pro se.
Michael DeWine, Attorney General, and Amy S. Brown, for
appellee.
APPEAL from the Court of Claims of Ohio
KLATT, J.
{¶ 1} Plaintiff-appellant, Ardell P. Jones, appeals the judgment of the Court of
Claims of Ohio dismissing his complaint against defendant-appellee, the Chillicothe
Correctional Institution, pursuant to Civ.R. 12(B)(6). Because appellant's claims are
barred by the two-year statute of limitations contained in R.C. 2743.16(A), we affirm.
{¶ 2} Appellant alleges that on October 11, 2006 he was injured while
incarcerated in the Chillicothe Correctional Institution when a plexiglass window from a
corrections officer's observation area fell on him while he was taking a shower. On
April 12, 2011, appellant filed a complaint against appellee in the Court of Claims of Ohio
No. 11AP-758
alleging negligence.1
2
Thereafter, appellant filed a first and then a second amended
complaint, again asserting negligence claims.
Appellee filed a motion to dismiss
contending that appellant's negligence claims were barred by the two-year statute of
limitations contained in R.C. 2743.16(A). The trial court agreed and granted appellee's
motion.
{¶ 3} Appellant now appeals, assigning the following error:
THE COURT OF CLAIMS DISMISSAL OF PLAINTIFF'S
COMPLAINT FOR NEGLIGENCE BY DEFENDANTS
CONSTITUTES AN ABUSE OF DISCRETION WHEN THE
COURT MISCONTRUES RELEVANT CASELAW.
{¶ 4} This court applies a de novo standard when reviewing a trial court's grant of
a motion to dismiss pursuant to Civ.R. 12(B)(6). Perrysburg Twp. v. Rossford, 103 Ohio
St.3d 79, 2004-Ohio-4362, ¶ 5; Hill v. Pfeiffer, 10th Dist. No. 11AP-295, 2011-Ohio-5623,
¶ 5. 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 nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d
190 (1988). Then, before the court may dismiss the complaint, it must appear beyond
doubt that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v.
Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975). Dismissal pursuant to
Civ.R. 12(B)(6) based upon a statute of limitations is proper only when the complaint
conclusively shows that the action is time barred.
Leichliter v. Natl. City Bank of
Columbus, 134 Ohio App.3d 26 (10th Dist.1999).
{¶ 5} Section 2743.16(A) of the Ohio Revised Code provides, in relevant part, that
"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." Appellant alleges that his claims arose on October 11, 2006, when a plexiglass
window fell on him while he was showering.
Therefore, appellant had to file his
negligence claim against appellee no later than October 11, 2008. Appellant filed his
1 Appellant's initial complaint was against various individuals including the former Warden of the
Chillicothe Correctional Institution. In his subsequent first amended complaint, appellant substituted the
Chillicothe Correctional Institution as the sole defendant.
No. 11AP-758
3
complaint against appellee on September 16, 2011. Therefore, on the face his complaint,
appellant's negligence claims are time barred.
{¶ 6} Appellant alleges that his negligence claims are not time barred because he
timely filed a federal court action based upon the same operative facts. Although his
federal court action was ultimately dismissed, appellant argues that the statute of
limitations was extended pursuant to R.C. 2305.19, Ohio's Savings Statute. We disagree.
{¶ 7} R.C. 2305.19 provides in relevant part:
In any action that is commenced * * * if the plaintiff fails
otherwise than upon the merits, the plaintiff * * * may
commence a new action within one year after the date of * * *
the plaintiff’s failure otherwise than upon the merits or within
the period of the original applicable statute of limitations,
whichever occurs later.
{¶ 8} By its express terms, the savings provision in R.C. 2305.19 only applies to
previously filed claims that fail otherwise than on the merits. Appellant alleged in his
complaint that the federal district court granted summary judgment in favor of the
defendants in that action. The Sixth Circuit Court of Appeals affirmed that decision.
Because appellant's federal court action failed on its merits, the savings provision in R.C.
2305.19 does not apply.2
{¶ 9} For these reasons, we overrule appellant's sole assignment of error and
affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
BROWN, P.J., and FRENCH, J., concur.
Even if appellant's federal court action had failed otherwise than upon the merits, R.C. 2305.19 still would
not have applied. The Ohio Savings Statute only applies when the original suit and the new action are
"substantially the same." Wilhem v. Ohio Dept. of Natural Resources, Ct. of Cl. No. 2006-07902, 2009Ohio-7061, citing Heilprin v. Ohio State Univ. Hosps., 31 Ohio App.3d 35 (10th Dist.1986); Children's Hosp.
v. Ohio Dept. of Public Welfare, 69 Ohio St.2d 523 (1982). Two actions are not considered "substantially the
same" when the claims or parties in the first action are different than the claims or parties in the subsequent
action. Id. In his federal action, appellant sued a number individuals based upon alleged constitutional
violations. The state of Ohio was not a party in the federal action. Appellant's suit in the court of claims is
for negligence against the Chillicothe Correctional Institution (state of Ohio). Therefore, the actions are not
substantially the same.
2
