[Cite as Hughley v. Southeastern Corr. Inst., 2011-Ohio-5332.]



                                                        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

KEVIN HUGHLEY

       Plaintiff

       v.

SOUTHEASTERN CORRECTIONAL INSTITUTION

       Defendant         Case No. 2010-12036

Judge Clark B. Weaver Sr.

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT



        {¶1} On January 20, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On January 26, 2011, plaintiff filed a response and a cross-
motion for summary judgment pursuant to Civ.R. 56(A). On January 28, 2011, plaintiff
filed a second response to defendant’s motion for summary judgment. On February 2,
2011, defendant filed a response to plaintiff’s motion for summary judgment. On March
23, 2011, a non-oral hearing was held on the cross-motions for summary judgment
pursuant to L.C.C.R. 4(D).1
        {¶2} As an initial matter, on March 24, 2011, plaintiff filed a “motion to amend
summary judgment request via granted amendment of complaint.” On March 29, 2011,
defendant filed a motion to strike plaintiff’s March 24, 2011 motion. On April 4, 2011,
plaintiff filed a response. A review of plaintiff’s amended complaint does not reveal any
new operative facts or additional claims for relief that would justify an amendment to
plaintiff’s motion for summary judgment.               Accordingly, plaintiff’s motion to amend is
DENIED and defendant’s motion to strike is GRANTED.
        {¶3} Civ.R. 56(C) states, in part, as follows:
Case No. 2010-12036                               -2-                                         ENTRY

        {¶4} “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 Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
        {¶5} Plaintiff was formerly an inmate in the custody and control of defendant
pursuant to R.C. 5120.16. Plaintiff alleges that defendant was without legal authority to
confine him inasmuch as convictions of misdemeanor offenses must be served in jail
rather than prison pursuant to R.C. 2929.26(D).
        {¶6} “False imprisonment occurs when a person confines another intentionally
‘without lawful privilege and against his consent within a limited area for any appreciable
time * * *.’” Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109,
quoting Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71. The elements of a false
imprisonment claim are: 1) expiration of the lawful term of confinement; 2) intentional
confinement after the expiration; and 3) knowledge that the privilege initially justifying
the confinement no longer exists. Corder v. Ohio Dept. of Rehab. & Corr. (1994), 94
Ohio App.3d 315, 318.
        {¶7} In support of its motion for summary judgment, defendant filed the affidavit
of Melissa Adams, who states:

1
 Plaintiff’s March 9, 2011 “motion to rule on plaintiff’s February 2, 2011 filing to amend complaint with
request to change summary judgment hearing to oral hearing” is DENIED as moot.
Case No. 2010-12036                           -3-                               ENTRY

       {¶8} “1. I am the Chief of the Bureau of Sentence Computation (BOSC) of the
Ohio Department of Rehabilitation and Correction (“DRC”) and have held this position
for one year. My job duties include but are not limited to direct responsibility for the
BOSC, direct supervision of 45 staff members, review of sentence computations to
ensure accuracy and compliance with Ohio law, monitor, review and enforce BOSC
policies, develop procedures relevant to inmate records, and oversee the training for
BOSC staff.
       {¶9} “2. I have personal knowledge and I am competent to testify to the facts
contained in this Affidavit.
       {¶10}      “* * *
       {¶11}      “7.      BOSC questioned the order to serve misdemeanor charges in
prison and contacted the court Bailiff Halle for clarification. * * *
       {¶12}      “8. BOSC calculated the terms of Plaintiff’s sentences and determined
the date for the expiration of his sentences based upon the court’s sentencing orders
and the information pertaining to the amount of jail time credit that BOSC received.”
       {¶13}      In opposition to defendant’s motion and in support of his motion,
plaintiff has attached numerous exhibits; however, none of the exhibits are properly
authenticated nor has plaintiff provided the court with an affidavit in support of his
motion.
       {¶14}      “[A]n action for false imprisonment cannot be maintained when the
imprisonment is in accordance with the judgment or order of a court, unless it appears
such judgment or order is void on its face.” Bradley v. Ohio Dept. of Rehab. & Corr.,
Franklin App. No. 07AP-506, 2007-Ohio-7150, ¶10; Fryerson v. Dept. of Rehab. &
Corr., Franklin App. No. 02AP-1216, 2003-Ohio-2730, ¶17; Diehl v. Friester (1882), 37
Ohio St. 473, 475.         Thus, the state is immune from a common law claim of false
imprisonment when the plaintiff was incarcerated pursuant to a facially-valid judgment
or order, even if the facially-valid judgment or order is later determined to be void.
Bradley, supra, at ¶11; Likes v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 05AP-
Case No. 2010-12036                             -4-                                       ENTRY

709, 2006-Ohio-231, ¶10.          Facial invalidity does not require the consideration of
extrinsic information or the application of case law. Gonzales v. Ohio Dept. of Rehab. &
Corr., Franklin App. No. 08AP-567, 2009-Ohio-246, ¶10.
       {¶15}       Plaintiff did not file an affidavit or any other admissible evidence either
in support of his own motion for summary judgment or in opposition to defendant’s
motion for summary judgment. Based upon the undisputed affidavit of Melissa Adams,
the court finds that defendant at all times confined plaintiff pursuant to a valid court
order.2 The law does not require defendant to question a facially valid order of the
sentencing court. McKinney v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 09AP-
960, 2010-Ohio-2323.        The burden is upon plaintiff to challenge his conviction and
sentence in the appropriate court.
       {¶16}       Moreover, even if defendant had a duty to question the validity of the
sentencing entry in this instance, defendant did contact the sentencing court regarding
plaintiff’s sentence. Finally, there is also no question that plaintiff served only the term
of confinement set forth in the sentencing entry, less jail time credit, and that he was
released at the expiration of that term.
       {¶17}       In short, the only reasonable conclusion to draw from the undisputed
evidence is that plaintiff was not falsely imprisoned by defendant. Accordingly, plaintiff’s
motion for summary judgment is DENIED and defendant’s motion for summary
judgment is GRANTED. 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.



                                              _____________________________________
2
 The court notes that defendant’s answer does not include res judicata as an affirmative defense. See
Hughley v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 09AP-562, 2010-Ohio-1768, ¶9 (“We note,
however, that the sentencing entries forming the basis of appellant’s claims have already been
determined to be valid. See State v. Hughley, 8th Dist. No. 92588, 2009-Ohio-5824, ¶22, discretionary
appeal not allowed by 124 Ohio St.3d 1477, 2010-Ohio-354 * * *.”)
Case No. 2010-12036                  -5-                           ENTRY

                                    CLARK B. WEAVER SR.
                                    Judge

cc:


Amy S. Brown                          Kevin Hughley
Stephanie D. Pestello-Sharf           16410 Scottsdale
Assistant Attorney General            Shaker Heights, Ohio 44120
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

GWP/dms
Filed September 12, 2011
To S.C. reporter October 13, 2011
