[Cite as Duff v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-859.]

                                                        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




DENNIS DUFF

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-02260

Judge Clark B. Weaver Sr.
Magistrate Matthew C. Rambo

DECISION




        {¶ 1} On August 25, 2009, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the
court on a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶ 4} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at the Marion Correctional Institution (MCI) pursuant to R.C. 5120.16.
Plaintiff’s claims arise out of an incident that occurred on June 17, 2008.        Plaintiff
alleges that shortly before 1:00 p.m., he and other inmates assigned to work in the MCI
dining hall finished eating and attempted to take a “smoke break” before beginning
work. Plaintiff alleges that Corrections Officer (CO) Marvin Arnett improperly refused
the request for a smoke break. Plaintiff alleges that he and several other inmates then
proceeded to the captain’s office to complain and that the captain permitted the other
inmates to have a smoke break, but placed plaintiff in “punitive segregation” for 21 days
for rules violations. According to plaintiff, these charges were overturned on appeal.
Plaintiff further alleges that his being denied a smoke break came in retaliation for prior
complaints that he filed against Arnett. Plaintiff asserts that defendant was negligent in
its training and supervision of Arnett and asserts claims for monetary, injunctive, and
declaratory relief.
       {¶ 5} In support of its motion for summary judgment, defendant provided the
affidavit of Arnett, wherein he states:
       {¶ 6} “1.      My name is Marvin Arnett and I am employed by [defendant] as a
[CO] at [MCI].
       {¶ 7} “2.      I have personal knowledge, and I am competent to testify to the facts
contained in this Affidavit.
       {¶ 8} “3.      On June 17, 2008 at 1:13 PM, the sanctioned inmates finished eating
in the café.     At this time I indicated that they should begin their work in the café.
[Plaintiff] asked about a smoke break, to which I answered that he could have a smoke
break once his work was completed. [Plaintiff] then indicated that he would liked to see
a “white shirt” to which I responded he could see a “white shirt” once his work was
completed.
       {¶ 9} “4.       [Plaintiff] spoke to the other inmates present about going to see a
“white shirt” so that they could get their smoke break. [Plaintiff] then left the café with
about seven other inmates following him. No work was completed before he left.
       {¶ 10} “5.      [Plaintiff] and other sanctioned inmates proceeded to the Captain’s
Office where they were told they could take their smoke break after their work was
completed.
       {¶ 11} “6.      I wrote a conduct report against [plaintiff] for violating prison rule #16
and #21. Attachment A is a true and accurate copy of the conduct report I filled out
against [plaintiff].
       {¶ 12} “7.      Prison rule #16 is engaging in or encouraging a group demonstration
or work stoppage. Prison rule #21 is disobedience of a direct order.
       {¶ 13} “8.      Based on my senses, knowledge, and experience as a [CO], I wrote
the conduct report on [plaintiff] for violating the above stated rules.
       {¶ 14} “9.      The conduct report was written as part of my duty, on behalf of
[defendant], to maintain the safety and security of MCI.
       {¶ 15} “10. When I wrote the conduct report, it was my belief that [plaintiff] has
violated the rules listed in the conduct report.
       {¶ 16} “11. I was properly trained and supervised regarding the writing of
conduct reports.
       {¶ 17} “12. I followed the policies and procedures of MCI and [defendant] when I
wrote the conduct report.
       {¶ 18} “13. I maintain a professional demeanor in conducting my duties as [CO].
At no time relative to this Complaint, nor at any other time, have I harassed, retaliated
against, or singled out [plaintiff].”
       {¶ 19} The court construes plaintiff’s claim that Arnett harassed him as a claim
for intentional infliction of emotional distress. In order to sustain such a claim, plaintiff
must show that: “(1) defendant intended to cause emotional distress, or knew or should
have known that actions taken would result in serious emotional distress; (2)
defendant’s conduct was extreme and outrageous; (3) defendant’s actions proximately
caused plaintiff’s psychic injury; and (4) the mental anguish plaintiff suffered was
serious.” Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 82; citing Pyle
v. Pyle (1983), 11 Ohio App.3d 31, 34.
       {¶ 20} To constitute conduct sufficient to give rise to a claim of intentional
infliction of emotional distress, the conduct must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.” Yeager v. Local Union 20,
Teamsters (1983), 6 Ohio St.3d 369, 375, quoting 1 Restatement of the Law 2d, Torts
(1965) 73, Section 46, Comment d.
       {¶ 21} “It has not been enough that the defendant has acted with an intent which
is tortious or even criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by ‘malice,’ or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. * * * Generally, the case
is one in which the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ The
liability clearly does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Id. at 374-375.
       {¶ 22} Upon review, the court finds that no reasonable trier of fact could find the
conduct alleged by plaintiff to be of such extreme and outrageous character necessary
to support a claim for intentional infliction of emotional distress. Accordingly, plaintiff’s
claim of “harassment” must fail.
       {¶ 23} To the extent that plaintiff asserts that Arnett improperly issued him a
conduct report, such a claim raises the issue of discretionary immunity. 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. Prison administrators are provided “wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional security.”      Bell v. Wolfish
(1979), 441 U.S. 520, 547.
       {¶ 24} The court finds that Arnett’s decision to issue a conduct report to plaintiff
for the violation of institutional rules is characterized by a high degree of official
judgment or discretion and that defendant is therefore entitled to discretionary immunity
for claims arising therefrom.
       {¶ 25} With regard to plaintiff’s retaliation claim, such a claim arises under 42
U.S.C. 1983. State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 91, 1994-Ohio-37;
Deavors v. Ohio Dept. of Rehab. & Corr. (May 20, 1999), Franklin App. No. 98AP-1105.
It is well-settled that such claims and other claims alleging violations of constitutionally
guaranteed rights 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. Accordingly, that claim is
DISMISSED for lack of subject matter jurisdiction.
       {¶ 26} In order for plaintiff to prevail on a claim for negligent hiring or retention,
he must prove: 1) the existence of an employment relationship; 2) the employee’s
incompetence; 3) the employer’s actual or constructive knowledge of such
incompetence; 4) the employee’s act or omission causing plaintiff’s injuries and 5) the
employer’s negligence in hiring or retaining the employee as the proximate cause of
plaintiff’s injuries. Evans v. Ohio State Univ. (1996), 112 Ohio App.3d 724.
       {¶ 27} Based upon the affidavit provided by defendant, and the fact that plaintiff
has not provided the court with any evidence to the contrary, the only reasonable
conclusion to draw from the evidence is that defendant’s employee, CO Arnett, was not
incompetent. Therefore, plaintiff’s claim of negligent hiring, training, and supervision
fails as a matter of law.
       {¶ 28} To the extent that plaintiff asserts claims for injunctive and declaratory
relief, that arise out of the same circumstances as his claim for money damages, claim
for declaratory and injunctive relief also must fail.
       {¶ 29} As stated above, plaintiff did not file a response to defendant’s motion, nor
did he provide the court with any affidavit or other permissible evidence to support his
allegations.
       {¶ 30} Civ.R. 56(E) states, in part, as follows:
       {¶ 31} “When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials
of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.”
       {¶ 32} Based upon the foregoing, the court finds that defendant is entitled to
judgment as a matter of law. Accordingly, defendant’s motion for summary judgment
shall be granted and judgment shall be rendered in favor of defendant.




                                                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




DENNIS DUFF

      Plaintiff

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

      Defendant
      Case No. 2009-02260

Judge Clark B. Weaver Sr.
Magistrate Matthew C. Rambo

JUDGMENT ENTRY
         A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.                For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                                _____________________________________
                                                CLARK B. WEAVER SR.
                                                Judge

cc:


Jennifer A. Adair                                   Dennis Duff, #447-439
Assistant Attorney General                          P.O. Box 69
150 East Gay Street, 18th Floor                     London, Ohio 43140
Columbus, Ohio 43215-3130

MR/cmd
Filed February 19, 2010
To S.C. reporter March 3, 2010
