[Cite as Dearing v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-7066.]



                                                        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. 2011-09560-AD

Deputy Clerk Daniel R. Borchert

ENTRY OF DISMISSAL

        {¶1} On August 5, 2011, this court granted plaintiff’s motion for discovery. On
October 11, 2011, this court issued an order requiring defendant to submit the
investigation report within 14 days of the entry. On October 11, 2011 and October 26,
2011, plaintiff filed motions for default judgment. Plaintiff asserts he should be granted
default judgment based on defendant’s failure to timely file the investigation report.
        {¶2} Civ.R. 55(D) in pertinent part states:
        {¶3} “No judgment by default shall be entered against this state . . . or agency . .
. unless the claimant establishes his claim . . . by evidence satisfactory to the court.”
        {¶4} A default judgment may not be rendered against the state solely for
procedural errors committed by defendant. A review of plaintiff’s pleadings does not
present sufficient evidence to prove his claim by a preponderance of the evidence.
Upon review, the plaintiff’s motions for default judgment are DENIED.
        {¶5} On October 25, 2011, defendant filed a motion for extension of time to
submit the investigation report. Defendant requested the investigation report be due on
or before November 21, 2011.
Case No. 2011-09560-AD                      -2-                                       ENTRY

       {¶6} On October 28, 2011, defendant filed a motion to dismiss pursuant to Civ.R.
B(1), lack of subject matter jurisdiction and Civ.R. 12(B)(6), failure to state a claim upon
which relief can be granted.
       {¶7} In support of the motion to dismiss, defendant stated in pertinent part:
       {¶8} “The plaintiff is not asserting a claim for negligence. It is clear that the
plaintiff is attempting to assert a civil rights claim for violation of the 8th amendment.
The law is well established that this court does not have jurisdiction to hear claims of
civil rights violations brought against the state. The state is not a ‘person’ for purposes
of 42 USC1983 actions and has not otherwise submitted to the jurisdiction of this court
for claims such as this. Burkey v. SOCF 38 Ohio App3d 170, 528 NE2d 607 (1988);
Glover v. CCI 202-02809-AD, 2003 WL21350552 (Ohio Ct. Cl. 2003).
       {¶9} “Furthermore, the plaintiff has alleged that the defendant’s employee acted
with ‘malicious intent.’ Such intentional actions would be clearly outside the scope of
their employment. The state is not liable for actions of their employees that are outside
the scope of their employment. (See ORC 2743.02) Therefore, whether the complaint
is considered as alleging civil rights violations or not, it is still beyond the jurisdiction of
this Court. Glover (supra).”
       {¶10}      Plaintiff maintained that CO Richards refused to provide him with a
vegetarian meal, even though plaintiff had requested a vegetarian meal. When plaintiff
expressed his displeasure with CO Richardson’s lack of concern, Richardson pepper
sprayed the plaintiff.    To determine if defendant should bear responsibility for an
employee’s wrongful act, a finding must be made, based on the facts presented,
whether or not the injury-causing act was manifestly outside the course and scope of
employment. Elliott v. Ohio Dept. of Rehab. & Corr. (1994), 92 Ohio App. 3d 772, 775,
637 N.E. 2d 1086 Thomas v. Ohio Dept. of Rehab. & Corr. (1988), 48 Ohio App. 3d 86,
89, 548 N.E. 2d 991; and Peppers v. Ohio Dept. of Rehab. & Corr. (1988), 50 Ohio App.
3d 87, 90, 553 N.E. 2d 1093. It is only where the acts of state employees are motivated
Case No. 2011-09560-AD                    -3-                                    ENTRY

by actual malice or other such reasons giving rise to punitive damages that their
conduct may be outside the scope of their state employment. James H. v. Dept. of
Mental Health and Mental Retardation (1980), 1 Ohio App. 3d 60, 61, OBR 6, 439 N.E.
2d 437.     The act must be so divergent that it severs the employer-employee
relationship. Elliott, at 775 citing Thomas, at 89, and Peppers, at 90.
       {¶11}     Malicious purpose encompasses exercising “malice,” which can be
defined as the willful and intentional design to do injury, or the intention or desire to
harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson
v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App. 3d 448, 453-454, 602 N.E. 2d
363, citing Teramano v. Teramano (1966), 6 Ohio St. 2d 117, 118, 35 O.O. 2d 144, 216
N.E. 2d 375; and Bush v. Kelly’s Inc. (1969), 18 Ohio St. 2d 89, 47 O.O. 2d 238, 247
N.E. 2d 745.
       {¶12}     The Supreme Court of Ohio has established that an employer is liable
for the tortious conduct of its employee only if the conduct is committed within the scope
of employment and if the tort is intentional, the conduct giving rise to the tort must
facilitate or promote the business of which the employee was engaged. Byrd v. Faber
(1991), 57 Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR Co. v. Wetmore
(1869), 19 Ohio St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21
OBR 165, 486 N.E. 2d 1249.
       {¶13}     Further, an intentional and willful tort committed by an employee for his
own purposes constitutes a departure from the employment, so that the employer is not
responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d 303,
607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103 N.E.
2d 564.    The facts of this case, taken as plaintiff asserted, would constitute an
intentional tort committed by defendant’s employee performed for his own personal
purposes. Following this rationale, plaintiff cannot maintain a cause of action against
defendant for the intentional malicious act of its employee.
Case No. 2011-09560-AD                     -4-                                   ENTRY

         {¶14}        Plaintiff also asserts defendant violated his rights under the 8th
Amendment of the United States Constitution. However, it is well-settled that this court
lacks jurisdiction to hear claims that assert constitutional violations. Gersper v. Ohio
Dept. of Hwy. Safety (1994), 95 Ohio App. 3d 1, 641 N.E. 29 113.
         {¶15}        Upon review, defendant’s motion to dismiss is GRANTED. Plaintiff’s
claim is DISMISSED for lack of subject matter jurisdiction and the failure to state a claim
upon which relief can be granted. All pending motions are MOOT. The court shall
absorb the court costs of this case.




                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

cc

Marvin Dearing, #421-030                          T. Austin Stout
878 Coitsville-Hubbard Road                       Department of Rehabilitation
Youngstown, Ohio 44505                            and Correction
                                                  770 Broad Street
                                                  Columbus, Ohio 43222
DRB/laa
Filed 11/8/11
Sent to S.C. reporter 4/5/12
