[Cite as Henley v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-5593.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Brian D. Henley,                                      :

                Plaintiff-Appellant,                  :                   No. 16AP-168
                                                                     (Ct. of Cl. No. 2014-00275)
v.                                                    :
                                                                    (REGULAR CALENDAR)
Ohio Department of                                    :
Rehabilitation and Correction,
                                                      :
                Defendant-Appellee.
                                                      :



                                           D E C I S I O N

                                    Rendered on August 30, 2016


                On brief: Brian D. Henley, pro se.

                On brief: Michael DeWine, Attorney General, and Velda K.
                Hofacker, for appellee.

                            APPEAL from the Court of Claims of Ohio

LUPER SCHUSTER, J.
          {¶ 1} Plaintiff-appellant, Brian D. Henley, appeals from a judgment of the Court
of Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and
Correction ("ODRC"), on Henley's claim of negligence, which was based on his allegation
that a correctional lieutenant used excessive force on him. For the following reasons, we
affirm.
I. Facts and Procedural History
          {¶ 2} Henley, who is in ODRC's custody, sued ODRC in March 2014. Henley
alleged that Drew Crago, a correctional lieutenant at the Richland Correctional
Institution, used excessive force on him on November 20, 2013. According to Henley,
Lieutenant Crago negligently used unnecessary and excessive force when he pepper
No. 16AP-168                                                                             2


sprayed Henley in the face after Henley already had been handcuffed and taken to the
prison's "captain's office" in connection with his dispute with other officers. (Mar. 19,
2014 Compl. at 1.) ODRC asserted that the pepper spray was used to subdue Henley after
he became aggressive toward an officer.         The issues of liability and damages were
bifurcated, and the matter proceeded to a trial on the issue of liability before a Court of
Claims magistrate in May 2015. In August 2015, the magistrate recommended the court
find that Henley failed to prove his claim by a preponderance of the evidence and
therefore enter judgment in favor of ODRC. Additionally, the magistrate recommended
the court find that Lieutenant Crago is entitled to civil immunity pursuant to R.C. 9.86
and 2743.02(F).
       {¶ 3} Henley filed objections to the magistrate's decision and, pursuant to Civ.R.
53(D)(3)(b)(iii), requested leave to use alternative technology in the form of an audio
recording of the trial to support his objections. Finding Henley indigent, the Court of
Claims granted his Civ.R. 53(D)(3)(b)(iii) request and, thus, reviewed the audio recording
as part of its review of the objections. The Court of Claims overruled Henley's objections
and adopted the magistrate's decision in its entirety.
       {¶ 4} Henley timely appeals.
II. Assignments of Error
       {¶ 5} Henley assigns the following errors for our review:
               [1.] The trial court's finding that Defendant was not negligent
               is against the manifest weight of the evidence.

               [2.] The Defendant must be held liable where the Defendant's
               employees acted in violation of either R.C. 2921.44(C) or Ohio
               Admin. Code 5120-9-04.

               [3.] Lt. Crago is not entitled to civil immunity pursuant to R.C.
               2743.02(F) and 9.86.

III. Discussion
       {¶ 6} For ease of discussion, we address Henley's first and third assignments of
error together. Henley's first assignment of error alleges the Court of Claims's finding
that ODRC was not negligent was against the manifest weight of the evidence. His third
No. 16AP-168                                                                             3


assignment of error alleges that the Court of Claims erred in finding that Lieutenant Crago
is entitled to civil immunity pursuant to R.C. 9.86 and 2743.02(F).
       {¶ 7} It is well-established that an appellant seeking reversal of a trial court's
judgment has the burden of demonstrating error by reference to matters in the record.
Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-965, 2012-Ohio-1665, ¶ 16.
Pursuant to App.R. 9, an appellant must submit to the court of appeals a transcript of the
trial court proceedings deemed necessary for appellate review. However, if a transcript is
unavailable, an appellant may utilize App.R. 9(C) or (D). See App.R. 9(B)(4). A transcript
is considered unavailable when an appellant is indigent and unable to bear the cost of
providing a transcript. State ex rel. Motley v. Capers, 23 Ohio St.3d 56, 58 (1986).
App.R. 9(C)(1) provides that if a transcript of lower court proceedings is unavailable, an
appellant may prepare a statement of the evidence "from the best available means,
including the appellant's recollection."   As to cases initially heard by a trial court
magistrate, App.R. 9(C)(2) states that "a party may use a statement under this division in
lieu of a transcript if the error assigned on appeal relates solely to a legal conclusion."
However, "[i]f any part of the error assigned on appeal relates to a factual finding, the
record on appeal shall include a transcript or affidavit previously filed with the trial
court." App.R. 9(C)(2). App.R. 9(D) permits the filing of an agreed statement of the case
in lieu of a record transcript. When portions of the transcript necessary for resolution of
assigned errors are omitted from the record and the appellant has provided no acceptable
alternative to a transcript, "the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower
court's proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199
(1980).
       {¶ 8} Henley's first and third assignments of error challenge the Court of Claims's
immunity finding as to Lieutenant Crago and its determination that the facts do not
demonstrate that ODRC was negligent. In accordance with R.C. 2743.02(F), the Court of
Claims "has exclusive jurisdiction to determine whether a state employee is immune from
liability under R.C. 9.86." Johns v. Univ. of Cincinnati Med. Assocs., 101 Ohio St.3d 234,
2004-Ohio-824, syllabus. Immunity is a question of law, but determination of the issue
requires consideration of the specific facts of the case. Siegel v. State, 10th Dist. No.
No. 16AP-168                                                                               4


14AP-279, 2015-Ohio-441, ¶ 29. Furthermore, to prove actionable negligence, a plaintiff
must show the existence of a duty, breach of that duty, and injury proximately caused by
the breach. Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). The state owes a duty to
inmates to reasonably care for the inmates' health, care, and well-being. Miller v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 12AP-12, 2012-Ohio-3382, ¶ 12. Whether there is
a breach of that duty is determined based on the factual circumstances of the case. See
Beck v. Camden Place at Tuttle Crossing, 10th Dist. No. 02AP-1370, 2004-Ohio-2989
(breach of an imposed duty is a question of fact). Because these determinations are
contingent on the underlying facts of each case, our review of the Court of Claims's
conclusions on these issues requires a review of the evidence presented at trial. However,
the record before this court does not include a transcript of the Court of Claims
proceedings or a permissible substitute under either App.R. 9(C) or (D). As a result, we
must presume the evidence supported the Court of Claims's determinations. Therefore,
we overrule Henley's first and third assignments of error.
       {¶ 9} In his second assignment of error, Henley asserts the Court of Claims erred
in not finding ODRC liable because its employees violated R.C. 2921.44(C) and Ohio
Adm.Code 5120-9-04. According to Henley, this court's decision in Peters v. Dept. of
Rehab. & Corr., 10th Dist. No. 14AP-1048, 2015-Ohio-2668, combined with his allegation
of negligence, required the Court of Claims to determine ODRC's liability under R.C.
2921.44(C). Henley also argues that Lieutenant Crago violated Ohio Adm.Code 5120-9-
04 and that the Court of Claims should have considered that violation as proving his claim
of negligence against ODRC. Henley's arguments are unpersuasive.
       {¶ 10} As to Henley's negligence claim, the primary issue before the Court of
Claims was whether ODRC breached its duty of reasonable care as to Henley's health,
care, and well-being. The statute and administrative code provision Henley cites do not
create a separate civil cause of action against the state, nor does Henley allege that they
alter the state's common-law duty to exercise reasonable care as it relates to prisoners.
R.C. 2921.44(C) is a criminal statute prohibiting dereliction of duty by a detention facility
officer, and Ohio Adm.Code 5120-9-04 sets forth ODRC's administrative regulations
concerning "[a]ppropriate supervision, discrimination and racial issues." In Peters, the
plaintiff argued that ODRC was liable because its officer violated R.C. 2921.44(C). This
No. 16AP-168                                                                                5


court determined that the plaintiff's reference to that criminal statute was unavailing
because the plaintiff made no allegation of common law negligence and the statute does
not create a separate civil action. Peters at ¶ 12-13, citing Allen v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 14AP-619, 2015-Ohio-383. Here, as Henley notes, he did allege
negligence. While this case is distinguishable from Peters on that fact, it does not alter the
underlying principle that R.C. 2921.44(C) does not create a separate cause of action.
Similarly, the violation of prison regulations like those set forth in Ohio Adm.Code 5120-
9-04 does not create a separate cause of action. Peters at ¶ 9-10. Because the statute and
administrative code provision Henley cites do not create a separate cause of action, and
because they do not alter the state's common law duty of care toward prisoners, the Court
of Claims engaged in the proper analysis as to Henley's negligence claim when it
determined that the degree of force Lieutenant Crago used was not excessive and satisfied
ODRC's duty of reasonable care. Thus, Henley's reliance on R.C. 2921.44(C) and Ohio
Adm.Code 5120-9-04 is unavailing.
       {¶ 11} Because Henley fails to demonstrate that the Court of Claims erred in
rejecting his arguments relating to R.C. 2921.44(C) and Ohio Adm.Code 5120-9-04, we
overrule his second assignment of error.
IV. Disposition
       {¶ 12} Having overruled all three of Henley's assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                        Judgment affirmed.

                         DORRIAN, P.J., and BROWN, J., concur.
