[Cite as Burse v. Dept. of Rehab. & Corr., 2019-Ohio-2882.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Perrin Burse,                                        :

                 Plaintiff-Appellant,                :
                                                                       No. 17AP-452
v.                                                   :            (Ct. of Cl. No. 2017-00149)

Ohio Department of                                   :        (REGULAR CALENDAR)
Rehabilitation and Correction,
                                                     :
                 Defendant-Appellee.
                                                     :



                                           D E C I S I O N

                                      Rendered on July 16, 2019


                 On brief: Perrin Burse, pro se.

                 On brief: [Dave Yost], Attorney General, Howard H.
                 Harcha, IV, for appellee.

                             APPEAL from the Court of Claims of Ohio

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Perrin Burse, appeals from a judgment of the Court of
Claims of Ohio dismissing Burse's complaint pursuant to the motion of defendant-appellee,
the Ohio Department of Rehabilitation and Correction ("ODRC"). For the following
reasons, we affirm the judgment of the Court of Claims.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} According to the complaint, Burse was incarcerated at the Chillicothe
Correctional Institution ("CCI"), operated by ODRC. At CCI, Burse had three boxes of legal
materials concerning his multiple pending legal actions. Burse had seven actions pending
as of February 1, 2015. On February 13, 2015, Burse was temporarily transferred from the
A-1 housing unit to the E-2 housing unit of CCI due to asbestos removal. Burse pleads in
his complaint that he had authorization to move the three legal boxes. However, on
No. 17AP-452                                                                              2


February 17, 2015, Unit Manager Shane Clark and Sergeant Farrar told Burse to reduce his
legal materials to one box, after Sergeant Farrar stated, "I'm going to make an example out
of him." (Feb. 13, 2017 Compl. at ¶ 23.)
         {¶ 3} Burse then mailed some of his documents and discarded others and reduced
the materials to two boxes. Burse returned the empty box to Sergeant Farrar and was told
to put the remaining two boxes under his bed and to report to Inspector Corby Free's office
the next morning. However, the next morning, Inspector Free did not report to work.
Burse attempted to pick up his legal mail, which consisted of trial transcripts, attorney
notes, and a DVD from the police interview conducted by the Springfield Township Police
Department, sent to him by the Ohio Innocence Project. According to Burse, included were
instructions to review the DVD, write a motion and to include relevant references to the
interview on the DVD as newly discovered exculpatory evidence for his new trial hearing
which was scheduled for March 17, 2015. Only the written materials were released to Burse
because the DVD could only be released to a Unit Manager. Burse could not find the Unit
Manager for his temporary housing, Unit Manager Clark, so he informed the Case Manager
for the D-4 dormitory, Ms. Alford, who attempted to convey the message to Unit Manager
Clark.
         {¶ 4} The next day, on February 20, 2015, Unit Manager Clark yelled at Burse
because he had more than one box of legal materials and Unit Manager Clark told Burse he
had until the end of the day to reduce the materials to one box. Burse attempted to explain
that Sergeant Farrar told Burse to put the two boxes under his bed. Burse was attempting
to condense his materials approximately 15 minutes later, Unit Manager Clark told him he
was being placed in segregation.
         {¶ 5} While in segregation, Burse was unable to view or access any legal materials.
On March 3, 2015, Burse was released from segregation "with no conduct report of a guilty
finding." (Compl. at ¶ 27.) On March 4, 2015, Burse was "forced to mail out legal
materials." (Compl. at ¶ 28.) He was permitted to view the DVD on March 6, 2015. Burse
mailed the DVD to Hamilton County Courthouse. Burse filed a motion for extension of
time regarding his hearing scheduled on March 17, 2015, but he received a denial of his
request on March 16, 2015. Burse contends legal documents were lost and never returned.
Burse contends that the loss of the documents led to the unsuccessful pursuit of his claims.
No. 17AP-452                                                                            3


Most notably, Burse contends that ODRC's conduct deprived him of the opportunity to
present the DVD to the First District Court of Appeals, which would have exonerated him
of the underlying theft convictions.
       {¶ 6} Burse filed his complaint before the Court of Claims on February 13, 2017,
alleging that ODRC employees violated provisions of the Revised Code and the Ohio
Administrative Code, in addition to violating ODRC policies. Burse named 17 individual
employees, including the Chillicothe Institution's Warden, and CCI as defendants. On
February 14, 2017, the Court of Claims dismissed the 17 individuals because only state
agencies and instrumentalities can be defendants in the court of claims. ODRC filed a
motion to dismiss the complaint on March 14, 2017, according to Civ.R. 12(B)(1) and (6).
The Court of Claims dismissed the complaint on May 23, 2017.
II. ASSIGNMENTS OF ERROR
       {¶ 7} Burse filed a timely appeal and raised the following assignments of error for
our review:
               [1.] FAILURE OF THE OHIO COURT OF CLAIMS, TO
               DECLARE THAT THE NAMED EMPLOYEES OF THE
               CHILLICOTHE CORRECTIONAL INSTITUTION ACTED
               M,ANIFESTLY OUTSIDE THE SCOPE OF THEIR
               EMPLOYMENT, AND ARE THEREFORE NOT IMMUNE
               FROM LIABILITY PURSUANT TO ORC 9.86, AND 2743.02.

               [2.] FAILURE OF THE OHIO COURT OF CLAIMS, TO
               DECLARE THAT THE NAMED EMPLOYEES COMMITTED
               THE ACT OF GROSS NEGLIGENCE, THAT WAS THE
               PROXIMATE CAUSE OF PLAINTIFF-APPELLANT BURSE
               NOT BEING ABLE TO TIMELY DELIVER THE
               EXONERATING EVIDENCE TO THE FIRST DISTRICT
               COURT OF APPEALS HEARING FOR THE 'NEW TRIAL' ON
               MARCH 17, 2015, DUE TO THE WRONGFUL COMMITTAL
               TO SEGREGATION, AND THE WITHHOLDING OF HIS
               TIME SENSITIVE LEGAL MAIL FROM THE OHIO
               INNOCENCE PROJECT.

               [3.] FAILURE OF THE OHIO COURT OF CLAIMS, TO
               DECLARE THAT THE NAMES EMPLOYEESCOMITTED
               THE ACT OF DELIBERATE INDIFFERENCE, (1) MIS-
               HANDLING     OF  PLAINTIFF-APPELLANT BURSE'S
               EXONERATING EVIDENE', A DVD, FROM THE OHIO
               INNOCENE PROJECT; (2) THE MALICIOUS AND
               WRONGFUL COMMITTAL TO SEGREGATION OF BURSE.
No. 17AP-452                                                                                       4



                [4.] FAILURE OF THE OHIO COURT OF CLAIMS, TO
                DECLARE THAT THE NAMED EMPLOYEES COMMITTED
                INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
                UPON PLAINTIFF APPELLANT BURSE BY; (1)
                GENERATING A FALSE CONDUCT REPORT AND
                SUBSEQUENTLY      CAUSING      THE    WRONGDUL
                COMMITTAL TO SEGREGATION, (2) THE MIS-
                HANDLING OF THE EXONERATING EVIDENCE, THAT
                WAS TO BE PRESENTED TO THE FIRST DISTRICT COURT
                OF APPEALS BY MARCH 10, 2015, FOR A MARCH 17, 2015
                HEARING FOR A 'NEW TRIAL'.

(Sic passim.)
III. STANDARD OF REVIEW
       {¶ 8} The Court of Claims granted ODRC's motion to dismiss made pursuant to
Civ.R. 12(B)(1) and (6). Civ.R. 12(B)(1) permits dismissal of a complaint where a trial court
lacks subject-matter jurisdiction. Guillory v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
07AP-861, 2008-Ohio-2299, ¶ 6. 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.' "
Robinson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-550, 2011-Ohio-713, ¶ 5,
quoting Vedder v. Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶ 14. The
standard is whether any cause of action cognizable by the forum has been raised in the
complaint. Guillory at ¶ 6, citing Milhoan v. E. Local School Dist. Bd. of Edn., 157 Ohio
App.3d 716, 2004-Ohio-3243, ¶ 10 (4th Dist.). The appellate court's review of a trial court's
dismissal of an action pursuant to Civ.R. 12(B)(1) is de novo. Robinson at ¶ 5, citing Hudson
v. Petrosurance, Inc., 10th Dist. No. 08AP-1030, 2009-Ohio-4307, ¶ 12.
       {¶ 9} A motion to dismiss for failure to state a claim on which relief can be granted
tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio
St.3d 494, 2010-Ohio-2057, ¶ 11. In reviewing a complaint under a Civ.R. 12(B)(6) analysis,
a court must presume that all factual allegations in the complaint are true and make all
reasonable inferences in the plaintiff's favor. Id. at ¶ 12. " '[A]s long as there is a set of facts,
consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the
court may not grant a defendant's motion to dismiss.' " Cincinnati v. Beretta U.S.A. Corp.,
95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 5, quoting York v. Ohio State Hwy. Patrol, 60 Ohio
No. 17AP-452                                                                                5


St.3d 143, 145 (1991). The appellate court reviews de novo a trial court's decision to dismiss
a claim under Civ.R. 12(B)(6). Robinson at ¶ 6.
IV. DISCUSSION
       {¶ 10} Burse argued his four assignments of error together and we thus likewise
consider them together. The Court of Claims determined that Burse's claim, although titled
as negligence, was actually a claim for the denial of access to the courts. Burse's claim
regarding the mishandling of his mail is a challenge to the conditions of confinement. These
claims raise constitutional claims over which the Court of Claims does not have subject-
matter jurisdiction. The Court of Claims also determined that it did not have jurisdiction
over any claims of violations of criminal statutes. Finally, the Court of Claims determined
that no cause of action existed for any violation of internal rules or policies and Burse's
challenge to his placement in segregation involved executive functions and a high degree of
official discretion, noting that ODRC is immune from liability for such decisions. As a
result, the Court of Claims granted ODRC's motion to dismiss Burse's complaint.
       {¶ 11} The Court of Claims Act permits individuals to sue the state in the Court of
Claims for liability to be determined with the same rules of law applicable to suits between
private parties. R.C. 2743.02(A)(1). Burse argues that the Court of Claims erred in granting
ODRC's motion to dismiss because his complaint, exhibits, interrogatories, and affidavits
provided evidence that ODRC employees demonstrated gross negligence, deliberate
indifference, and intentionally inflicted on Burse emotional distress. Burse in his complaint
also alleges that ODRC violated its own internal rules or policies. Violations of internal
rules or policies in a prison do not " 'support a cause of action by themselves, even though
violations of internal rules and policies may be used to support a claim for negligence.' "
Peters v. Dept. of Rehab. & Corr., 10th Dist. No. 14AP-1048, 2015-Ohio-2668, ¶ 10, quoting
Triplett v. Warren Corr. Inst., 10th Dist. No. 12AP-728, 2013-Ohio-2743, ¶ 10.
       {¶ 12} However, a court must examine the underlying nature of the complaint, not
necessarily being limited by the characterization provided by a plaintiff. The inverse is also
true: "The mere fact that claims in a complaint are couched in certain legal terms is
insufficient to confer jurisdiction upon a court. * * * Instead, in order to resolve the issue
of whether a court has subject-matter jurisdiction over a party's claims, the court must look
beyond the language used in the complaint and examine the underlying nature of the
claims." (Citation omitted and emphasis added.) Guillory at ¶ 11.
No. 17AP-452                                                                                6


       {¶ 13} Despite arguing that the ODRC employees committed gross negligence,
deliberate indifference, intentionally caused Burse emotional distress, and violated internal
rules and policies, Burse's claims are more appropriately an allegation that ODRC
employees denied him access to the courts based on unlawful conditions of confinement;
Burse's claims do not sound in negligence. Burse complains he was forced to reduce his
legal materials to one box, he was placed in segregation wrongfully and denied access to his
legal materials, thereby being unable to view his DVD sent by the Ohio Innocence Project
and he claims the mail room mishandled his mail, causing some items to be lost. Neither a
denial of access to the courts or a claim based on unlawful conditions of confinement are
actionable in the Court of Claims.
       {¶ 14} In Bounds v. Smith, 430 U.S. 817, 821 (1977), overruled in part, the United
States Supreme Court held that access to the courts is a constitutional right guaranteed to
all prisoners. In Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court held
that Bounds did not recognize an independent right for prisoners to have an adequate law
library, but rather, determined that a prisoner must establish that an inadequate library or
access to legal material caused actual harm. "The fundamental constitutional right of
access to the courts requires that prisoners have a meaningful opportunity to present claims
to the court." State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 92 (1994), citing Bounds.
However, the Court of Claims lacks subject-matter jurisdiction to consider claims arising
from alleged violations of the U.S. Constitution. Guillory at ¶ 12. Claims of denial of access
to the courts are properly treated as actions for alleged violations of constitutional rights
pursuant to 42 U.S.C. 1983 ("§ 1983"). Id. at ¶ 12, citing Bleicher v. Univ. of Cincinnati
College of Med., 78 Ohio App.3d 302 (10th Dist.1992). Likewise, inmate complaints
regarding conditions of confinement are treated as claims arising under § 1983. Guillory
at ¶ 12, citing Schotten at 91. This court has consistently held that the Court of Claims does
not have jurisdiction over § 1983 actions. Deavors v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 98AP-1105 (May 20, 1999). We agree with the Court of Claims that it does not
have subject-matter jurisdiction over these claims and that it properly dismissed them.
       {¶ 15} Burse's action includes allegations of violations of criminal law, including
harassment, interfering with civil rights, tampering with records, retaliation, attempted
corrupt activity, conspiracy, securing writings by deception, intimidation, obstruction of
No. 17AP-452                                                                                   7


official business, falsification, complicity, dereliction of duty, perjury, and forgery. 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 and does not have
jurisdiction over criminal matters against the State. Troutman v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 03AP-1240, 2005-Ohio-334, ¶ 10. However, the Supreme Court of
Ohio has recently clarified that R.C. 2307.60, providing for civil recovery for criminal acts,
is a viable claim, but the high court limited its decision to that issue. Jacobson v. Kaforey,
149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 11.            The high court stated: "We make no
ruling today beyond answering the certified-conflict question. Any ensuing issues
regarding how the statute operates or what a plaintiff must do to prove a claim under R.C.
2307.60(A)(1) are beyond the scope of this appeal. Resolution of issues of that type by
this court must await an appeal in a case in which the issues are properly before the court."
Id.
       {¶ 16} We recognize in our Civ.R. 12(B)(6) de novo review that Burse may have
alleged in his complaint a private, civil cause of action for violation of criminal statutes. But
we also continue to recognize that because the Court of Claims does not have jurisdiction
over alleged criminal violations, it does not have jurisdiction like a common pleas court
would to determine whether or not a crime has occurred for the purpose of awarding civil
penalties for criminal violations of state statute. Accordingly, the Court of Claims does not
have jurisdiction over Burse's alleged criminal violations by ODRC or its employees, and
the Court of Claims properly dismissed these claims.
       {¶ 17} We also note that the language in R.C. 2743.02 that "the state" shall "have its
liability determined [in accordance] to suits between private parties," means that the State
cannot be sued for its legislative or judicial functions, or the exercise of an executive
function involving a high degree of official judgment or discretion.           Deavors, citing
Reynolds v. State, 14 Ohio St.3d 68, 70 (1984). ODRC is entitled to discretionary immunity
for decisions on inmate placement under the doctrine set forth in Reynolds. In State ex rel.
Larkins v. Wilkinson, 79 Ohio St.3d 477, 479 (1997), the Supreme Court of Ohio recognized
that "[a]bsent evidence that the challenged institutional action would affect the inmate's
duration of confinement, an inmate has no liberty interest in being free of disciplinary or
administrative segregation because such segregation does not impose an atypical and
No. 17AP-452                                                                            8


significant hardship on the inmate." Therefore, ODRC is generally immune from liability
arising from decisions regarding inmate placement. Troutman at ¶ 9.
      {¶ 18} We recognize that according to the ODRC website, Burse was released from
prison on March 17, 2017. See Ohio Department of Rehabilitation and Correction Offender
Search, available at https://appgateway.drc.ohio.gov/OffenderSearch (last visited July 15,
2019.) Further, Burse raised his § 1983 claims based on these facts in federal court and
ODRC was granted summary judgment because Burse failed to exhaust his administrative
remedies. See Burse v. Jenkins, S.D. Ohio No. 2:15-cv-2992 (Dec. 4, 2017). Accordingly,
Burse's four assignments of error are overruled.
V. CONCLUSION
      {¶ 19} For the foregoing reasons, Burse's four assignments of error are overruled
and the judgment of the Court of Claims of Ohio is affirmed.
                                                                      Judgment affirmed.

                         KLATT, P.J., and SADLER, J., concur.
