[Cite as Dearing v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-6916.]




                                      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
MARVIN DEARING

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant


Case No. 2011-09551-AD

Acting Clerk Daniel R. Borchert

ENTRY OF DISMISSAL
    THE COURT FINDS THAT:
        {¶1} On July 18, 2011, plaintiff, Marvin Dearing, filed a complaint against
defendant, Department of Rehabilitation and Correction. Plaintiff asserts on May 13,
2011, his due process rights guaranteed by the Fifth Amendment of the United States
Constitution were violated by an improper Rules Infraction Board hearing conducted by
defendant. Plaintiff seeks damages in the amount of $2,500.00, for the violation of his
rights, emotional stress, and loss of good time;
        {¶2} On July 18, 2011, plaintiff filed a request motion for permission to proceed
with discovery.
        THE COURT CONCLUDES THAT:
        {¶3} The sole issue raised by plaintiff in his complaint is whether defendant
violated plaintiff’s constitutionally protected right to due process as guaranteed by the
Fifth Amendment of the United States Constitution;
        {¶4} “The state is liable in the Court of Claims ‘in accordance with the same rules
of law applicable to suits between private parties.’                 R.C. 2743.02(A)(1).           More
particularly, the state has consented to be sued in the Court of Claims in accordance
with the same rules applicable to private persons. Since a private party cannot be held
liable for the constitutional claims appellant asserts, his complaint is not within the
jurisdiction of the Court of Claims. Thompson v. Southern State Community College
(1989), Franklin App. No. 89AP-114; Bleicher v. Univ. of Cincinnati College of Med.
(1992), 78 Ohio App. 3d 302, 306 (claims of constitutional violations and due process
are not within the jurisdiction of the Court of Claims).” Gangale v. Ohio Bur. of Motor
Vehicles, 2002-Ohio-2936;
         {¶5} The Court of Claims only has appellate jurisdiction to hear appeals of
decisions of Court of Claims commissioners. R.C. 2743.01(A)(1). In this case, plaintiff
sought to have this court determine whether defendant’s Rules Infraction Board
conducted his hearing in accordance with the due process requirements of the Fifth
Amendment. The Court of Claims does not have jurisdiction over decisions rendered by
the Rules Infraction Board.       Sears v. Department of Rehabilitation and Correction
(1975), 75-0170-AD; Maynard v. Jago (1977), 76-0581-AD;
         {¶6} Civ.R. 12(H)(3) states: “Whenever it appears by suggestion of the parties
or otherwise that the court lacks jurisdiction on the subject matter, the court shall
dismiss the action.”
         IT IS THEREFORE ORDERED THAT:
         {¶7} This court lacks subject matter jurisdiction over the issues raised in
plaintiff’s complaint;
         {¶8} This case is DISMISSED, sua sponte;
         {¶9} The court shall absorb the court costs of this case.


                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Acting Clerk
Entry cc:
Marvin Dearing, #421-030                          Ohio Department of Rehabilitation
878 Coitsville-Hubbard Road                       and Correction
Youngstown, Ohio 44505                            770 West Broad Street
                                                  Columbus, Ohio 43222
7/26
Filed 8/11/11
Sent to S.C. reporter 1/3/12
