[Cite as Tokes v. Dept. of Rehab. & Corr., 2018-Ohio-4149.]



ESTATE OF REAGAN TOKES                                 Case No. 2018-00846JD

       Plaintiff                                       Judge Patrick M. McGrath

       v.                                              DECISION

DEPARTMENT OF REHABILITATION
AND CORRECTION

       Defendant



        {¶1} Before the court is a Civ.R. 12(B)(6) motion filed on June 15, 2018, by
defendant Department of Rehabilitation and Correction (DRC) wherein DRC moves the
court to dismiss plaintiff’s complaint.           Plaintiff Estate of Reagan Tokes (the Estate)
opposes DRC’s Civ.R. 12(B)(6) motion. The matter is fully briefed and is before the
court for decision.

    I. Introduction
        {¶2} This wrongful-death case stems from the death of Reagan Tokes by Brian
Golsby, who has been convicted in an Ohio common pleas court for murdering Tokes
and sentenced to prison.            DRC has stated in support of its present motion: “The
kidnapping, assault and murder of Reagan Tokes was a horrible, evil, unspeakable act.”
DRC’s Civ.R. 12(B)(6) motion raises whether the Estate’s complaint sets forth a claim
upon which relief may be granted. The court is cognizant of the tragedy suffered by
Reagan Tokes, Reagan Tokes’s family, and others who have been affected by the
murder of Tokes.

    II. Background
        {¶3} On May 21, 2018, the Estate, by its administrator Gregory Utter, brought a
wrongful-death action under R.C. 2125.01 et seq. and a “survivor’s action” under
Case No. 2018-00846JD                        -2-                                 DECISION


R.C. 2305.21 against DRC. According to the Estate, Reagan Tokes “was murdered in
Columbus, Ohio by Brian Golsby on February 8, 2017.” (Complaint, ¶ 3.) The Estate
asserts in its complaint that DRC acted negligently following Golsby’s release from
prison in November 2016 after Golsby served a six-year sentence for robbery and
attempted rape. The Estate seeks a determination that DRC is liable for Tokes’s death.
       {¶4} According to the Estate, following Golsby’s release from prison, Golsby was
on mandatory post-release control and, during this time, Golsby was subject to
supervision and monitoring by the Ohio Adult Parole Authority (APA).            The Estate
asserts that, although Golsby was sanctioned twice in December 2016 for violating
terms of his release and Golsby was later sanctioned for violating a term of his release
in January 2017 (Complaint, ¶ 25-27), Golsby was not arrested or put under more
restrictive conditions. And, according to the Estate, in late January 2017 and early
February 2017, Golsby engaged in a “crime wave” in Columbus, Ohio, where he
committed multiple crimes. With respect to Reagan Tokes, the Estate asserts that, on
February 8, 2017, Golsby forcibly abducted Tokes after she left work and Golsby forced
Tokes to withdraw money from ATMs.           According to the Estate, the car containing
Golsby and Tokes entered a metro park, where Golsby raped and murdered Tokes.
The Estate asserts that Golsby was arrested, charged with several crimes relative to his
actions against Tokes, convicted, and sentenced to life imprisonment without the
possibility of parole. (Complaint, ¶ 48-49.) The Estate seeks compensatory damages in
an amount to be determined at trial, a trial by jury, and other relief as is just and proper.
(Complaint.)

   III. DRC’s motion to dismiss
       {¶5} On June 15, 2018, DRC moved the court to dismiss the Estate’s complaint
pursuant to Civ.R. 12(B)(6), urging that, under R.C. 2743.02(A)(3), DRC is not liable for
the performance of its public duties, and that general tort law principles preclude a
finding that DRC should be held liable for the criminal acts of Golsby.
Case No. 2018-00846JD                       -3-                                DECISION


       {¶6} In opposition, the Estate has asserted that it has met its pleading burden
under Civ.R. 8(A); that DRC was under a duty to exercise reasonable care to protect
Tokes when DRC took charge of Golsby and DRC knew or should have known that
Golsby was likely to cause physical harm to others if not controlled; that immunities
contained in R.C. 2743.01(E)(1) are not applicable under the allegations in the
complaint; and that a motion to dismiss should not be granted as the complaint’s
allegations assert DRC’s failure to comply with obligations under R.C. 2967.26 that are
not subject to sovereign immunity or “public duty” defense.        And, according to the
Estate, a motion to dismiss may not be granted on grounds that DRC was engaged in
“law enforcement,” “licensing,” “supervision,” or “monitoring” for the reason that “these
terms as determinants of immunity are void for vagueness.” The Estate contends that a
motion to dismiss “should not be granted on the basis of a claim of governmental
immunities as set forth in R.C. 2743.02(A)(3) and R.C. 2743.01(E)(1) for the reason that
those immunities are unconstitutional in violation of Ohio Constitution Section 16, Article
I” and that a motion to dismiss “should not be granted where the complaint alleges that
the third party/offender was on post release control, where the defendant agency had
established a curfew requirement, where the defendant agency had the power to violate
the offender, and was negligent in not violating and arresting the offender for multiple
curfew violations prior to the offender murdering the plaintiff [sic].” (Memorandum in
Opposition, 16, 20.)
       {¶7} In reply, DRC maintains that Golsby was not released pursuant to R.C.
2967.26, as the Estate indicates in its response, and that there was no statutory duty to
confine Golsby after he completed his sentence in 2016. DRC also maintains that the
“public duty rule” applies to the performance and non-performance of a public duty and
that the public duty rule contained in R.C. 2743.02(A)(3), including the definition of
public duty in R.C. 2743.01(E), is constitutional.
Case No. 2018-00846JD                        -4-                                DECISION


    IV. Law and Analysis
        A. Standard of Review
        {¶8} Civ.R. 12(B)(6) permits a party to move a court to dismiss a complaint for
failure to state a claim upon which relief may be granted. According to Civ.R. 12, every
defense, in law or fact, to a claim for relief in any pleading, whether a claim,
counterclaim, cross-claim, or third-party claim, “shall be asserted in the responsive
pleading thereto if one is required, except that the following defenses may at the option
of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can
be granted * * *.” In State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio
St.3d 545, 548, 605 N.E.2d 378 (1992), the Supreme Court of Ohio explained that a
motion to dismiss for failure to state a claim upon which relief can be granted “is
procedural and tests the sufficiency of the complaint.” And in Coleman v. Columbus
State Community College, 2015-Ohio-4685, 49 N.E.3d 832, ¶ 6 (10th Dist.), the Tenth
District Court of Appeals stated:

        In ruling on a motion to dismiss, pursuant to Civ.R. 12(B)(6), the court
        must construe the complaint in the light most favorable to the plaintiff,
        presume all factual allegations in the complaint are true, and make all
        reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co.,
        40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). The dismissal of a
        complaint for failure to state a claim is proper when it appears, beyond
        doubt, that the plaintiff can prove no set of facts entitling him to relief.
        Celeste v. Wiseco Piston, 151 Ohio App.3d 554, 2003-Ohio-703, ¶ 12,
        784 N.E.2d 1198 (11th Dist.).

Thus, by DRC’s Civ.R. 12(B)(6) motion, DRC asks the court to determine whether, after
construing the Estate’s complaint in a light most favorable to the Estate, presuming that
all factual allegations in the complaint are true, and making all reasonable inferences in
favor of the Estate, it appears beyond doubt, that the Estate can prove no set of facts
entitling it to relief.
Case No. 2018-00846JD                       -5-                                 DECISION


       B. Analysis
       {¶9} The state maintains that the public-duty doctrine precludes a finding that
DRC is liable under the circumstances of this case. The public-duty doctrine, also
termed public-duty rule, is defined as the “rule that a governmental entity * * * cannot be
held liable for an individual plaintiff’s injury resulting from a governmental officer’s or
employee’s breach of a duty owed to the general public rather than to the individual
plaintiff.” Black’s Law Dictionary 1424 (10th Ed.2014). The Supreme Court of Ohio has
explained that the public-duty rule originated in English common law. Hurst v. State
Dept. of Rehab. & Correction, 72 Ohio St.3d 325, 329, 650 N.E.2d 104 (1995),
overruled to the extent inconsistent with Wallace v. Ohio Dept. of Commerce, 96 Ohio
St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018. As stated in Hurst, the public-duty rule
“is used to determine the first element of negligence, the existence of a duty on the part
of the state. If the duty owed is general in nature, the wrong created by its breach is to
the public in general and, therefore, not individually actionable.” And in Swart v. Ohio
Dept. of Rehab. & Correction, 133 Ohio App.3d 420, 423, 728 N.E.2d 428 (10th
Dist.1999), the Tenth District Court of Appeals stated that the public-duty rule “applies to
uniquely governmental functions and, unless avoided by operation of the ‘special duty’
exception, precludes the establishment of the duty element of a negligence action.”
       {¶10} In Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-
4210, 773 N.E.2d 1018, the Supreme Court of Ohio addressed the applicability of the
public-duty doctrine in negligence suits against the state. The Wallace court held:

           The public-duty rule is incompatible with R.C. 2743.02(A)(1)’s express
       language requiring that the state’s liability in the Court of Claims be
       determined “in accordance with the same rules of law applicable to suits
       between private parties.” In negligence suits against the state, the Court of
       Claims must determine the existence of a legal duty using conventional
       tort principles that would be applicable if the defendant were a private
       individual or entity. (Hurst v. Ohio Dept. of Rehab. & Corr. [1995], 72 Ohio
       St.3d 325, 650 N.E.2d 104, and Anderson v. Ohio Dept. of Ins. [1991], 58
       Ohio St.3d 215, 569 N.E.2d 1042, overruled to the extent inconsistent
Case No. 2018-00846JD                       -6-                                 DECISION


      herewith; Sawicki v. Ottawa Hills [1988], 37 Ohio St.3d 222, 525 N.E.2d
      468, distinguished.)

Wallace at paragraph one of the syllabus. And in Wallace, the court stated:

      [N]o matter what considerations of policy support the judicial application of
      the public-duty rule, we must remember that R.C. Chapter 2743 has
      legislatively set forth the public policy of this state. That policy, expressed
      in R.C. 2743.02(A)(1), is to allow suits against the state according to the
      same rules as between private parties, “except that the determination of
      liability is subject to the limitations set forth in this chapter.” (Emphasis
      added.) As we have stated previously, the public-duty rule is neither “set
      forth” in R.C. Chapter 2743 nor a rule of law applicable to suits between
      private parties. It is inappropriate for the court to engraft the public-duty
      rule as an additional limitation on liability that the General Assembly has
      not provided. If the public-duty rule is to become a rule of substantive law
      applicable to suits in the Court of Claims, it is the General Assembly—the
      ultimate arbiter of public policy—that should make it so by way of
      legislation. It is not this court’s role to apply a judicially created doctrine
      when faced with statutory language that cuts against its applicability.

(Emphasis sic.) Wallace at ¶ 33.

      {¶11} Two years after the Supreme Court of Ohio issued Wallace, in Sub.H.B.No
316, 150 Laws of Ohio, Part IV, 5438, 5444-5446, the General Assembly enacted
R.C. 2743.01(E) (defining the term “public duty” as used in R.C. Chapter 2743) and
R.C. 2743.02(A)(3) (establishing, subject to exception, immunity for the performance or
nonperformance of a public duty). R.C. 2743.02(A)(3) provides:

              (a) Except as provided in division (A)(3)(b) of this section, the state
      is immune from liability in any civil action or proceeding involving the
      performance or nonperformance of a public duty, including the
      performance or nonperformance of a public duty that is owed by the state
      in relation to any action of an individual who is committed to the custody of
      the state.

            (b) The state immunity provided in division (A)(3)(a) of this section
      does not apply to any action of the state under circumstances in which a
      special relationship can be established between the state and an injured
Case No. 2018-00846JD                      -7-                                 DECISION


      party. A special relationship under this division is demonstrated if all of
      the following elements exist:

              (i) An assumption by the state, by means of promises or actions, of
      an affirmative duty to act on behalf of the party who was allegedly injured;

             (ii) Knowledge on the part of the state’s agents that inaction of the
      state could lead to harm;

             (iii) Some form of direct contact between the state’s agents and the
      injured party;

            (iv) The injured party’s justifiable reliance on the state’s affirmative
      undertaking.

For purposes of R.C. 2743.02(A)(3), a “public duty” “includes, but is not limited to, any
statutory, regulatory, or assumed duty concerning any action or omission of the state
involving any of the following: (a) Permitting, certifying, licensing, inspecting,
investigating, supervising * * *.” (Emphasis added.) R.C. 2743.01(E)(1).
      {¶12} The Estate has asserted that Golsby was subject to supervision and
monitoring by the APA (Complaint, ¶ 11). According to R.C. 5149.02, the APA is an
entity created in the division of parole and community services of DRC at bureau level.
Because the Estate has asserted that Golsby was subject to supervision by the APA (an
entity created within DRC), whether DRC is immune from liability based on its
performance or nonperformance of a public duty—i.e., supervising Golsby—is
implicated.
      {¶13} In this instance, unless the Estate pleads sufficient facts to establish a
special relationship between DRC and Tokes, DRC is immune from liability for its
performance or nonperformance of a public duty—i.e., for its supervising of Golsby
following Golsby’s release from prison. See Rooney v. Ohio State Hwy. Patrol, 2017-
Ohio-1123, 87 N.E.3d 777, ¶ 16 (10th Dist.) (“Unless Dr. Rooney pled sufficient facts to
overcome the state’s R.C. 2743.02(A)(3)(a) immunity to suit, the State of Ohio is not
Case No. 2018-00846JD                        -8-                                DECISION


liable in a civil action for negligence based on the performance or nonperformance of a
‘public duty,’ * * *. And unless it can be demonstrated that there exists a ‘special
relationship’ according to the four-part test set forth in R.C. 2743.02(A)(3)(b) between
the State and the injured party, immunity bars recovery”).        For the Estate to plead
sufficient facts to establish that Tokes had a special relationship with DRC in
accordance with R.C. 2743.02(A)(3)(b)(i)-(iv), the Estate is required to plead sufficient
facts alleging: (i) an assumption by DRC, by means of promises or actions, of an
affirmative duty to act on Reagan Tokes’s behalf, (ii) knowledge on the part of DRC
through its agents that inaction of DRC could lead to harm; (iii) some form of direct
contact between DRC’s agents and Reagan Tokes, and (iv) Reagan Tokes’s justifiable
reliance on DRC’s affirmative undertaking.
       {¶14} A review of the Estate’s complaint discloses that the Estate has alleged
that the “NISRE/Exit Program by contracting with the D.R.C. as a ‘facility for offenders
released from prison,’ and thereby obligating itself by contract and regulation to monitor
the resident offenders and report unusual incidents, established a ‘special relationship’
with the public at large.” Such ‘special relationship’ obligated the NISRE/Exit Program
to exercise ordinary care in protecting members of the public from violent crimes,
including murder and rape.” (Complaint, ¶ 51.) Construing the allegations in paragraph
51 in a light most favorable to the Estate, presuming that the factual allegations are true,
and making all reasonable inferences in favor of the Estate, the court does not find that
in paragraph 51 the Estate has pleaded sufficient facts to establish the elements
contained in R.C. 2743.02(A)(3)(b)(i)-(iv) to establish a special relationship existed
between DRC and Reagan Tokes.                Rather, by the allegations contained in
paragraph 51 of the Estate’s complaint, the Estate alleges that the NISRE/Exit Program
established a “special relationship” with the public at large. And, based on the court’s
review of the Estate’s entire complaint, the court does not find the Estate has pleaded
any facts that establish the first requirement of any negligence action, i.e., the existence
Case No. 2018-00846JD                        -9-                                 DECISION


of a duty to the plaintiff—the breach of which offers the possibility of a cause of action.
The only duty established is a “public duty” running to the public at large.
       {¶15} The Estate nonetheless contends that immunity should not apply in this
case because, according to the Estate, governmental immunities under R.C.
2743.02(A)(3) and 2743.01(E)(1) are unconstitutional and violate Article I, Section 16,
Ohio Constitution, and that the terms “law enforcement,” “licensing,” “supervision,” or
“monitoring” in R.C. 2743.01(E)(1) as determinants of immunity are void because they
are unconstitutionally vague. Whether R.C. 2743.02(A)(3) is constitutional and whether
certain terms contained in R.C. 2743.01(E)(1) are constitutional are issues that are not
cognizable in this court because the Tenth District Court of Appeals has determined that
constitutional claims are not actionable in this court. See White v. Ohio Dept. of Rehab.
& Correction, 10th Dist. Franklin No. 12AP-927, 2013-Ohio-4208, ¶ 17; Wassenaar v.
Ohio Dept. of Rehab. & Correction, 10th Dist. Franklin Nos. 07AP-712, 07AP-772,
2008-Ohio-1220, ¶ 28. See also White v. Dept. of Rehab. & Correction, 10th Dist.
Franklin No. 92AP-1229, 1992 Ohio App. LEXIS 6749, at *2 (Dec. 22, 1992) (“To the
extent plaintiff’s allegations are meant to assert violations of his constitutional rights
under the Ohio or United States Constitutions, the Court of Claims lacks jurisdiction”).
       {¶16} The court’s conclusion that the public-duty doctrine applies in this case
does not constitute a sea change under Ohio law.            Rather, such a conclusion is
consistent with case law that preceded the enactment of Sub.H.B.No 316, 150 Laws of
Ohio, Part IV, 5438, 5444-5446 and case law that has followed the enactment of Sub.
H.B.No. 316. For example, in 1995 in Hurst v. State Dept. of Rehab. & Correction, 72
Ohio St.3d 325, 650 N.E.2d 104 (1995), overruled to the extent inconsistent with
Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d
1018, the Ohio Supreme Court reversed an appellate court’s judgment that reversed
this court’s application of the public-duty doctrine. In Hurst, the executor of the estate of
Minnie Ruth Hurst sued the Ohio Department of Rehabilitation and Correction, alleging
Case No. 2018-00846JD                     -10-                               DECISION


claims of wrongful death, negligence, and negligence per se against the department for
its delay in processing a report concerning a parolee. The Hurst court noted that the
appellate court had expressed reservations about the continued vitality of the public-
duty rule in light of two decisions that had been issued by the Ohio Supreme Court.
However, in reversing the appellate court, the Hurst court stated: “Because appellee
has failed to establish the existence of a special duty owed the decedent by the state,
the public duty rule applies to bar liability on the part of the Adult Parole Authority.”
Hurst at 329.
      {¶17} A year after Hurst, in Bonds v. Dept. of Rehab. & Correction, 116 Ohio
App.3d 144, 158-159, 687 N.E.2d 300 (10th Dist.1996), the Tenth District Court of
Appeals affirmed this court’s determination that the Department of Rehabilitation and
Correction owed the appellant, Beulah Bonds, no duty and that the department correctly
calculated a prisoner’s release date. In that case, the department released an inmate
from prison on February 21, 1992.        About a month later the released prisoner
burglarized Bonds’s home and raped Bonds. Bonds alleged that the department was
negligent because the department miscalculated the prisoner’s release date and the
department released the prisoner, despite having received a detainer from another
state. In Bonds, the Tenth District Court of Appeals stated: “Because [the department]
did not owe appellant a special duty within the meaning of the public duty rule, [the
department] did not owe appellant any duty actionable under ordinary principles of
negligence.” Bonds at 159.
      {¶18} Three years after Bonds, in Swart v. Ohio Dept. of Rehab. & Correction,
133 Ohio App.3d 420, 728 N.E.2d 428 (10th Dist.1999) (affirming this court’s summary
judgment in favor of the Ohio Department of Rehabilitation), the Tenth District Court of
Appeals upheld this court’s determination that a duty owed by Ohio Department of
Rehabilitation was a public duty and that the appellants in that case could not show that
Case No. 2018-00846JD                       -11-                                 DECISION


the department owed Clara Stewart—the victim of a murder by a parolee—a special
duty.
        {¶19} Additionally, after the General Assembly enacted Sub.H.B.No 316, 150
Laws of Ohio, Part IV, 5438, 5444-544 (codifying the public-duty doctrine in R.C.
Chapter 2743), in Rudd v. Ohio State Hwy. Patrol, 2016-Ohio-8263, 78 N.E.3d 273
(10th Dist.), the Tenth District Court of Appeals applied the pubic-duty provisions
contained in R.C. 2743.01(E)(1)(a) and 2743.02(A)(3) in affirming this court’s dismissal
based on Civ.R. 12(B)(6). The Rudd court found that this court did not err in finding that
an amended complaint failed to state a claim upon which relief could be granted. In that
case, the plaintiffs had contended that two highway patrol employees acted negligently
in various ways and failed to apprehend two fugitive murderers, which resulted in the
murderers being left at large to shoot and seriously injure one of the plaintiffs.
        {¶20} And a year after Rudd, in Rooney v. Ohio State Hwy. Patrol, 2017-Ohio-
1123, 87 N.E.3d 777, ¶ 1 (10th Dist.), the Tenth District Court of Appeals determined
that this court properly dismissed an administrator’s complaint against the Ohio
Highway Patrol pursuant to Civ.R. 12(B)(6) for failure to overcome the patrol’s public-
duty immunity granted by R.C. 2743.02(A)(3).
        {¶21} Moreover, the court’s conclusion that DRC owed no duty in this instance is
wholly consistent with the general principle that, absent a special relationship, there is
no duty to control the conduct of a third person as to prevent the third person from
causing physical harm to another. See 2 Restatement of the Law, Torts 2d, Sections
314 and 315 (1965); Gelbman v. Second Natl. Bank, 9 Ohio St.3d 77, 79, 458 N.E.2d
1262 (1984) (“Both Sections 314 and 315 [of the Restatement of the Law, Torts 2d]
articulate the general rules of the duties imposed on third parties. Thus, unless a special
relationship between defendant-owner and plaintiff-third party is extant by statute or
judicial determination, no duty may be imposed”); Fed. Steel & Wire Corp. v. Ruhlin
Constr. Co., 45 Ohio St.3d 171, 173, 543 N.E.2d 769 (1989) (“Ordinarily, there is no
Case No. 2018-00846JD                       -12-                             DECISION


duty to control the conduct of a third person by preventing him or her from causing harm
to another, except in cases where there exists a special relationship between the actor
and the third person which gives rise to a duty to control, or between the actor and
another which gives the other the right to protection”).
       {¶22} Additionally, the court finds persuasive DRC’s contention that the Estate’s
suggestion in its memorandum in opposition that Golsby was released from prison
under R.C. 2967.26 (transitional control program) is inconsistent with the Estate’s
factual allegation in paragraph 11 of the complaint wherein the Estate alleges that
Golsby “was on parole, that is, mandatory post-release control pursuant to
R.C. 2929.19(B)(3)(c),(d) and (e) for five years” following Golsby’s release from prison
in November 2016.       See generally R.C. 2967.28 (effective September 13, 2016)
(establishing a period of post-release control for certain offenders, sanctions, and
proceedings upon violation).      Here, according to the Estate’s allegation, Golsby
completed his prison term in November 2016. Based on the Estate’s allegation, after
Golsby was released from prison, Golsby appears to have been a “releasee” for
purposes of R.C. Chapter 2967. See R.C. 2967.01(J) (effective September 22, 2000)
(defining “releasee,” as used in R.C. Chapter 2967, to mean “an inmate who has been
released from confinement pursuant to section 2967.28 of the Revised Code under a
period of post-release control that includes one or more post-release control
sanctions”). And based on the Estate’s allegation that Golsby was on post-release
control when he committed the crimes against Reagan Tokes, it does not appear to the
court that DRC had a duty to confine Golsby, absent a hearing regarding alleged
violations of post-release control sanctions. See, e.g., R.C. 2967.28(D)(3) (effective
September 13, 2016) (providing that the parole board or, pursuant to an agreement
under R.C. 2967.29, a court may hold a hearing on any alleged violation by a release of
a post-release control sanction or any conditions described in R.C. 2967.131(A) that are
imposed upon the releasee).
Case No. 2018-00846JD                      -13-                               DECISION


      {¶23} Accordingly, construing the Estate’s complaint in a light most favorable to
the Estate, presuming that all factual allegations in the complaint are true, and making
all reasonable inferences in favor of the Estate, it appears beyond doubt that the Estate
can prove no set of facts entitling it to relief with respect to DRC’s performance of a
public duty. Because the Estate has failed to plead sufficient facts to overcome the
state’s R.C. 2743.02(A)(3)(a) immunity to suit, the court determines that dismissal
pursuant to Civ.R. 12(B)(6) is required.

   V. Conclusion
      {¶24} For reasons set forth above, the court holds that after construing the
Estate’s complaint in a light most favorable to the Estate, presuming that all factual
allegations in the complaint are true, and making all reasonable inferences in favor of
the Estate, it appears beyond doubt that the Estate can prove no set of facts entitling it
to relief. The court concludes that DRC’s Civ.R. 12(B)(6) motion should be granted and
that this case should be dismissed.




                                           PATRICK M. MCGRATH
                                           Judge
[Cite as Tokes v. Dept. of Rehab. & Corr., 2018-Ohio-4149.]



ESTATE OF REAGAN TOKES                                 Case No. 2018-00846JD

        Plaintiff                                      Judge Patrick M. McGrath

        v.                                             JUDGMENT ENTRY

DEPARTMENT OF REHABILITATION
AND CORRECTION

        Defendant



         {¶25} For the reasons set forth in the decision filed concurrently herewith, the
court GRANTS defendant’s Civ.R. 12(B)(6) motion filed on June 15, 2018. Plaintiff’s
case is DISMISSED. 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.




                                                    PATRICK M. MCGRATH
                                                    Judge


Filed September 4, 2018
Sent to S.C. Reporter 10/12/18
