[Cite as Gordon v. State Dept. Rehab. & Corr., 2018-Ohio-2272.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Dante' D. Gordon,                                   :

                Plaintiff-Appellant,                :

v.                                                  :                   No. 17AP-792
                                                                  (Ct. of Cl. No. 2017-00369)
Ohio Department of Rehabilitation and               :
Correction,                                                       (REGULAR CALENDAR)
                                                    :
                Defendant-Appellee.
                                                    :


                                           D E C I S I O N

                                     Rendered on June 12, 2018


                On brief: Dante' D. Gordon, pro se.

                On brief: Michael DeWine, Attorney General, and Stacy
                Hannan, for appellee.


                            APPEAL from the Court of Claims of Ohio

TYACK, J.
        {¶ 1} Plaintiff-appellant, Dante' D. Gordon, appeals the decision of the Court of
Claims of Ohio to dismiss his complaint pursuant to Civ.R. 12(B)(1) and 12(B)(6). For the
following reasons, we affirm the decision of the trial court.
        {¶ 2} Gordon is an inmate in the custody and control of the Ohio Department of
Rehabilitation and Correction ("ODRC").                 Gordon alleges claims of inappropriate
supervision in violation of the Ohio Administrative Code, discrimination, racial issues,
harassment, and intentional infliction of emotional distress.
        {¶ 3} Gordon filed his original complaint on April 21, 2017. On May 19, 2017,
ODRC filed a motion to dismiss the complaint pursuant Civ.R. 12(B)(1) for lack of subject-
No. 17AP-792                                                                               2


matter jurisdiction and Civ.R. 12(B)(6) for failure to state a claim upon which relief can be
granted. On June 12, 2017, Gordon filed a first amended complaint without leave of the
court. ODRC filed a motion to dismiss the first amended complaint on June 21, 2017.
       {¶ 4} After an extension was granted to Gordon to file a response to ODRC's second
motion to dismiss, Gordon filed a second amended complaint on July 20, 2017. On
August 3, 2017, ODRC filed a motion to strike Gordon's second amended complaint.
       {¶ 5} The Court of Claims in its October 12, 2017 decision denied ODRC's May 19,
2017 motion as moot, granted ODRC's motion to strike Gordon's July 20, 2017 second
amended complaint for failure to comply with Civ.R. 15(A), and the first amended
complaint was dismissed pursuant to Civ.R. 12(B)(1) and 12(B)(6).
       {¶ 6} On November 8, 2017, Gordon's notice of appeal was timely filed.
       {¶ 7} Gordon lists two assignments of error:
              [I.] The Trial court abused its discretion when it refused to
              allow the Appellant to amend his complaint pursuant to Civil
              Rule 15(A), Civil Rule (1) and without a material showing to
              support the corut's decision. Thus violating the Appellant's
              rights under O.Const.1 Sec.2 Equal protection & Benefit,
              O.Const.1 Sec. 16 Redress for injury; due process and the 14th
              amendment to the U.S. Const. to due process & equal
              protection of the laws.

              [II.] JUDGE Mcgrath errored in abusing his discretion by
              dismissing Appellant's complaint pursuant to Civ.R.12(B)(1) &
              Civ.R.12(B)(6) where prison officials admitted to violations of
              law & where the Appellant not only provided a set of facts, but
              evidence to which the appellant could recover. Thus violating
              the Appellant's rights under O.Const. 1 Sec. 2 equal protection
              & benefit, O.Cont.1 Sec.16 redress for injury, due process & 14th
              amendment to the U.S. Const. to due process & equal-
              protection of the laws.

       (Sic Passim.)

       {¶ 8} In the first assignment of error, Gordon argues the Court of Claims abused its
discretion in denying his July 20, 2017 second amended complaint for failure to comply
with Civ.R. 15(A).
       {¶ 9} Civ.R. 15(A) provides that a party may "amend its pleading once as a matter
of course within twenty-eight days after serving it * * *. In all other cases, a party may
No. 17AP-792                                                                                3


amend its pleading only with the opposing party's written consent or the court's leave." The
court shall freely give leave when justice so requires. Id. An appellate court reviews a trial
court's decision on a motion for leave to file an amended pleading under an abuse of
discretion standard. Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio
St.3d 120, 122 (1991). "The term 'abuse of discretion' connotes more than an error of law
or judgment, it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 10} Gordon filed his second amended complaint more than 28 days after serving
his first amended complaint and obtained neither ODRC's written consent nor the court's
leave. The Court of Claims further found that Gordon's request to file the second amended
complaint is for the purpose of delaying and circumventing ODRC's responses and the
Court of Claims' orders. Gordon admits in his brief that he attempted to amend his second
amended complaint more than 28 days after serving ODRC his first amended complaint
and eventually filed a motion for leave to file the second amended complaint after July 20,
2017. We find that the Court of Claims did not abuse its discretion in denying Gordon's
July 20, 2017 second amended complaint.
       {¶ 11} The first assignment of error is overruled.
       {¶ 12} In the second assignment of error, Gordon argues the Court of Claims erred
in dismissing the first amended complaint pursuant to Civ.R. 12(B)(1) and 12(B)(6).
       {¶ 13} The Court of Claims dismissed many of Gordon's claims pursuant to Civ.R.
12(B)(6). The standard for dismissing a case under Civ.R. 12(B)(6) is high. A motion to
dismiss for failure to state a claim upon which relief can be granted pursuant to Civ.R.
12(B)(6) is procedural and tests the sufficiency of the complaint. State ex rel Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In construing the complaint, the
material allegations of the complaint are taken as admitted. Jenkins v. McKeithen, 395 U.S.
411, 421 (1969). All reasonable inferences must also be drawn in favor of the nonmoving
party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). In order for the court
to dismiss the complaint "it must appear beyond doubt from the complaint that the plaintiff
can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242, syllabus.
No. 17AP-792                                                                                  4


       {¶ 14} "In resolving a Civ.R. 12(B)(6) motion to dismiss, the trial court may consider
only the statements and facts contained in the pleadings, and may not consider or rely on
evidence outside the complaint." Powell v. Vorys, 131 Ohio App.3d 681, 684 (10th
Dist.1998). Indeed, when construing the complaint in favor of the nonmoving party, a court
is " 'not bound to accept as true a legal conclusion couched as a factual allegation.' "
Carasalina, LLC v. Smith Phillips & Assocs., 10th Dist. No. 13AP-1027, 2014-Ohio-2423,
¶ 14, quoting Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Haas v. Village of
Stryker, 6th Dist. No. WM-12-004, 2013-Ohio-2476, ¶ 10 (Only factual allegations are
presumed to be true and only claims supported by factual allegations can avoid dismissal).
       {¶ 15} Decisions on Civ.R. 12(B)(6) motions are not findings of fact, but are rather
conclusions of law. State ex rel. Drake v. Athens Cty. Bd. of Elections, 39 Ohio St.3d 40,
(1988). The appellate court need not defer to a trial court's decision in Civ.R. 12(B)(6) cases.
       {¶ 16} Gordon makes the claim that ODRC was negligent.                These claims of
negligence arise from alleged violations of ODRC's internal rules and procedures including
allegations of violations of the inmate grievance protocol. Prison regulations are primarily
designed to guide correctional officials in prison administration rather than to confer rights
on inmates. State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479 (1997). Violations
will not support a cause of action by themselves, even though violations of internal rules
and policies may be used to support a claim of negligence. Triplett v. Warren Corr. Inst.,
10th Dist. No. 12AP-728, 2013-Ohio-2743, ¶ 10. "Prison inmates, therefore, have no right
to recover against ODRC when it violates administrative code provisions." Wolfe v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 15AP-128, 2015-Ohio-3985, ¶ 10, citing Peters v.
Dept. of Rehab. & Corr., 10th Dist. No. 14AP-1048, 2015-Ohio-2668, ¶ 10; Triplett at ¶ 10.
       {¶ 17} Gordon's claim of negligence only relies on alleged violations of
administrative rules and policy. Gordon cannot state a claim on which relief can be granted
because ODRC's alleged violations of the administrative code do not give rise to a cause of
action. The Court of Claims properly dismissed Gordon's negligence claim for failure to
state a claim upon which relief can be granted.
       {¶ 18} Gordon's claim of harassment stems from ODRC's violation of Ohio
Adm.Code 5120-9-4(B). The alleged violation of Ohio Adm.Code 5120-9-4(B) does not
No. 17AP-792                                                                                5


independently supply a cause of action. Peters at ¶ 10. The Court of Claims properly
dismissed Gordon's claim of harassment.
       {¶ 19} Gordon also argued a claim of intentional infliction of emotional distress.
       {¶ 20} To prevail on his claim for intentional infliction of emotional distress, a
plaintiff must prove the following four elements: (1) the defendant intended to cause
emotional distress or knew or should have known that actions taken would result in severe
emotional distress; (2) the defendant's conduct was so extreme and outrageous that it went
beyond all bounds of decency, and was such as to be considered utterly intolerable in a
civilized community; (3) the defendant's actions proximately caused plaintiff psychic
suffering; and (4) the plaintiff suffered serious mental anguish of a nature that no
reasonable man could be expected to endure. Aycox v. Columbus Bd. of Educ., 10th Dist.
No. 03AP-1285, 2005-Ohio-69, ¶ 27.
       {¶ 21} With respect to the requirement that the conduct alleged be "extreme and
outrageous," the Supreme Court of Ohio finds comment d to Section 46 of the Restatement
of the Law 2d, Torts (1965) 71 at 73, to be instructive in describing this standard:
              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. Liability has been found only where the conduct
              has been 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. 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!"

       {¶ 22} Liability for intentional infliction of emotional distress "does not extend to
mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities."
Yeager v. Local Union 20, Teamsters, 6 Ohio St.3d 369, 375 (1983). A claim requires the
alleging of distress both severe and debilitating, of a nature that no reasonable man could
be expected to endure. Paugh v. Hanks, 6 Ohio St.3d 72, 78 (1983); and Coffman v. Dept.
of Rehab. & Corr., 10th Dist. No. 12AP-816, 2013-Ohio-3829, ¶ 12.
No. 17AP-792                                                                                 6


       {¶ 23} Gordon alleges in the first amended complaint that he has suffered stress,
paranoia, and post-traumatic stress. Having reviewed de novo Gordon's allegations,
presumed all of those allegations to be true, and made all reasonable inferences in favor of
appellant, we find that the allegations do not establish a claim for intentional infliction of
emotional distress. We are not bound to accept Gordon's legal conclusion that he has
suffered from the intentional infliction of emotional distress and mental anguish.
Carasalina, LLC at ¶ 14. Gordon does not allege that the harm caused him is severe and
debilitating, nor does he present factual allegations that the emotional distress suffered rise
to the level of severe or incapacitating him in any way. See Coffman (the fear of getting
cancer as a result of perceived exposure to asbestos was not alleged to be either severe or
debilitating). Gordon has failed to allege the fourth required element of emotional distress,
that he suffered serious mental anguish of a nature that no reasonable man could be
expected to endure.
       {¶ 24} The Court of Claims properly dismissed Gordon's claim of intentional
infliction of emotional distress for failure to state a claim upon which relief could be
granted. From the complaint, Gordon can prove no set of facts entitling him to recovery.
       {¶ 25} The Court of Claims dismissed some of Gordon's claims for lack of subject-
matter jurisdiction. "The issue of subject-matter jurisdiction involves 'a court's power to
hear and decide a case on the merits and does not relate to the rights of the parties.' " Avco
Fin. Servs. Loan, Inc. v. Hale, 36 Ohio App.3d 65 (10th Dist.1987). "The issue of subject-
matter jurisdiction involves 'a court's power to hear and decide a case on the merits and
does not relate to the rights of the parties.' " Baker v. Dept. of Rehab. & Corr., 10th Dist.
No. 11AP-987, 2012-Ohio-1921, ¶ 8, quoting Vedder v. Warrensville Hts., 8th Dist. No.
81005, 2002-Ohio-5567, ¶ 14. A trial court's grant or denial of a Civ.R. 12(B)(1) motion to
dismiss is reviewed de novo. Moore v. Franklin Cty. Children Servs., 10th Dist. No. 06AP-
951, 2007-Ohio-4128, ¶ 15.
       {¶ 26} The Court of Claims concluded that it lacked subject-matter jurisdiction over
any of Gordon's constitutional and civil rights violations. It is well established that the
Court of Claims has no jurisdiction to consider constitutional claims. Bleicher v. Univ.of
Cincinnati College of Medicine, 78 Ohio App.3d 302, 307 (10th Dist.1992). We agree that
the Court of Claims lacks subject-matter jurisdiction over Gordon's constitutional claims.
No. 17AP-792                                                                                 7


       {¶ 27} "The Court of Claims has exclusive, original jurisdiction over only civil actions
against the state permitted by the waiver of immunity contained in R.C. 2743.02. R.C.
2743.02 does not confer jurisdiction to the Court of Claims to consider criminal charges
that should be adjudicated in courts of common pleas." Troutman v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 03AP-1240, 2005-Ohio-334, ¶ 10. Thus, the criminal allegations
Gordon levels at ODRC were properly dismissed by the Court of Claims for lack of subject-
matter jurisdiction.
       {¶ 28} The second assignment of error is overruled.
       {¶ 29} Having found that the claims of the first amended complaint were properly
dismissed either for a lack of subject-matter jurisdiction or for failure to state a claim upon
which relief can be granted, and finding that the Court of Claims did not abuse its discretion
in denying the second amended complaint pursuant to Civ.R. 15(A), we affirm the judgment
of the Court of Claims of Ohio.
                                                                         Judgment affirmed.

                                KLATT, J., concurs
                         DORRIAN, J., concurs in judgment only.
