[Cite as Evans v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-1521.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

William H. Evans, Jr.,                              :

                Plaintiff-Appellant,                :
                                                                         No. 19AP-756
v.                                                  :              (Ct. of Cl. No. 2019-00506JD)

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



                                           D E C I S I O N

                                     Rendered on April 16, 2020


                On brief: William H. Evans, Jr., pro se.

                On brief: Dave Yost, Attorney General, and Lauren D.
                Emery for appellee.

                            APPEAL from the Court of Claims of Ohio

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, William H. Evans, Jr., appeals a decision of the Court of
Claims of Ohio, entered on October 21, 2019, dismissing his case against the Ohio
Department of Rehabilitation and Correction ("ODRC"). Evans' complaint essentially
consists of allegations regarding the inconvenience and hardship caused by past and
potential future transfers between prison institutions. However, these expressions of
dissatisfaction are insufficient to allege a claim under the Americans with Disabilities Act
("ADA"), insufficient to show that the complained-of activity fell outside the scope of
ODRC's general immunity from liability arising from decisions regarding inmate transfer
and placement, and, insofar as the complaint sought to accuse ODRC of criminal acts,
cannot be addressed in the Court of Claims in the first instance. We therefore overrule
Evans' five assignments of error and affirm the judgment of the Court of Claims.
No. 19AP-756                                                                                2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} On April 15, 2019, Evans filed a complaint alleging that ODRC officials
transferred Evans from one prison to another based on a retaliatory motive with the result
that they uprooted his life and interfered with his various legal endeavors. (Apr. 15, 2019
Compl. at ¶ 4.) Rather than allege specific facts about the contemplated transfer or the
factual circumstances that justify Evans' conclusory allegation that the move was
retaliatory, Evans merely attached a prior complaint that he had apparently filed in a
different case regarding similar issues. (Compl. 18CV-2819, attached to Apr. 15, 2019
Compl.)
       {¶ 3} In May, ODRC moved to strike the attachment to the complaint and to
dismiss the case. (May 10, 2019 Mot. to Strike; May 10, 2019 Mot. to Dismiss.) Evans
opposed both motions. (May 28, 2019 Memo. Contra.)
       {¶ 4} Approximately five months later, on October 21, 2019, the Court of Claims
granted ODRC's motion to dismiss and found the motion to strike to be moot. (Oct. 21,
2019 Entry at 4.) The Court of Claims granted both prongs of ODRC's motion to dismiss
under Civ.R. 12(B)(1) and (6), finding Evans' claims regarding alleged violation of his
constitutional rights and alleged violation of R.C. 2307.60 were not within its jurisdiction,
dismissing them under Civ.R. 12(B)(1). As for his purported ADA claim, the Court of Claims
dismissed it under Civ.R. 12(B)(6) for failure to state a claim.
       {¶ 5} As substantively relevant to this appeal, the Court of Claims reasoned that
ODRC's decisions about where to house inmates are protected by discretionary immunity.
Id. at 2. It found it lacked jurisdiction to determine both whether ODRC had committed a
crime or a violation of the U.S. Constitution. Id. at 3. Finally, it concluded that Evans' one-
sentence allegation to the effect that the ADA "may" be implicated by his suit was
insufficient to allege a cause of action. Id. at 3-4.
       {¶ 6} Evans now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 7} Evans asserts four assignments of error:
               [1.] TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF
               FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE
               GRANTED, WHERE IF [ANY] CAUSE OF ACTION FOR
               RELIEF IS STATED THE CASE MAY NOT BE DISMISSED.
No. 19AP-756                                                                              3


               [2.] TRIAL COURT ERRED IN HOLDING THAT THE
               VIOLATIONS AGAINST EVANS IS BARRED UNDER
               DISCRETIONARY IMMUNITY.

               [3.] TRIAL COURT ERRS IN HOLDING THAT THE COURT
               OF CLAIMS CANNOT HEAR CIVIL ACTIONS FOR
               DAMAGES BASED UPON CRIMINAL ACTS UNDER O.R.C.
               §2307.60.

               [4.] TRIAL COURT ERRS IN HOLDING THAT PLAINTIFF
               FAILED TO [PLEAD] THE ELEMENTS OF AN A.D.A. CLAIM,
               AMOUNTING      TO   A    HEIGHTENED     PLEADING
               REQUIREMENT.

For organizational clarity, we address the second, third, and fourth assignments of error
before we address the first assignment of error.
III. DISCUSSION
   A. Standard of Review
       {¶ 8} In ruling on a motion to dismiss for lack of subject-matter jurisdiction
pursuant to Ohio Rule of Civil Procedure 12(B)(1), the trial court determines whether the
claim raises any action cognizable in that court. Foreman v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 10; Brown v. Ohio Tax Commr., 10th Dist. No.
11AP-349, 2012-Ohio-5768, ¶ 14; Robinson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
10AP-550, 2011-Ohio-713, ¶ 5. 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." ' "
Brown at ¶ 14, quoting Robinson at ¶ 5, quoting Vedder v. Warrensville Hts., 8th Dist. No.
81005, 2002-Ohio-5567, ¶ 14. We apply a de novo standard when we review a trial court's
ruling on a Civ.R. 12(B)(1) motion to dismiss.        Robinson at ¶ 5, citing Hudson v.
Petrosurance, Inc., 10th Dist. No. 08AP-1030, 2009-Ohio-4307, ¶ 12; McCuller v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 15AP-91, 2015-Ohio-3124, ¶ 6.
       {¶ 9} When reviewing a judgment on a motion to dismiss for failure to state a claim
on which relief can be granted under Civ.R. 12(B)(6), our standard of review is also de novo.
Foreman at ¶ 9; Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. A
motion to dismiss for failure to state a claim under Civ.R. 12(B)(6) tests the sufficiency of
the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545,
548 (1992). When reviewing such a Civ.R. 12(B)(6) motion, a trial court must presume all
No. 19AP-756                                                                                   4


factual allegations contained in the complaint are true and make all reasonable inferences
in favor of the nonmoving party. Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95,
104 (8th Dist.1995), citing Perez v. Cleveland, 66 Ohio St.3d 397 (1993); Mitchell v. Lawson
Milk Co., 40 Ohio St.3d 190 (1988); Phung v. Waste Mgt., Inc., 23 Ohio St.3d 100 (1986);
Rossford at ¶ 5. "[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." York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991); accord Burse v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-452, 2019-Ohio-2882, ¶ 9.
   B. Second Assignment of Error – Whether the Trial Court Erred in
      Concluding that Discretionary Immunity Protected the Prison Officials
      Decisions About Where to House Evans
We have previously held that ODRC is "generally immune from liability arising from
decisions regarding inmate transfer and placement under the discretionary immunity
doctrine." Troutman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 03AP-1240, 2005-
Ohio-334, ¶ 9; accord Burse at ¶ 17. Discretionary immunity is not without limits. See
Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-Ohio-360, ¶ 21-23.
In this case, however, none of the few conclusory allegations Evans made in his complaint
provided bases for any finding other than that immunity applies in this case. (Compl. at
¶ 3-6.) Even on appeal, Evans does not offer any substantive theory to support a finding
immunity should not apply here; rather, he merely states that ODRC has abused its
discretion or abused its authority by violating unspecified principles of criminal law and
tort law. (Evans' Brief at 3.)
       {¶ 10} Evans' second assignment of error is overruled.
   C. Third Assignment of Error – Whether the Trial Court Erred in Holding
      that it Lacked Jurisdiction to Consider Evans' Claim for Civil Damages
      Based on Alleged Criminal Acts by ODRC
       {¶ 11} We have previously held that the Court of Claims does not have jurisdiction
to determine whether the State (or an agent or agency thereof) has committed a crime to
serve as a predicate for establishing liability in a civil action brought pursuant to R.C.
2307.60. Evans v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 18AP-713, 2019-Ohio-3788,
¶ 12; accord Burse at ¶ 15-16; R.C. 2931.03. Yet, Evans points out that we have also held in
an appeal from the Court of Claims, that a private action may be brought against the State
for a violation of a criminal statute. (Evans' Brief at 4, citing Evans v. Ohio Dept. of Rehab.
No. 19AP-756                                                                              5


& Corr., 10th Dist. No. 16AP-767, 2018-Ohio-1035, ¶ 27-28.) Evans argues that these
rulings conflict with one another and show that Burse was wrongly decided. (Evans' Brief
at 4.) We recognize that the Court of Claims cannot determine questions of criminal guilt,
even though civil suits for damages against the State must be brought in the Court of Claims
(see R.C. 2743.03; Cleveland v. Ohio Bur. of Workers' Comp., __ Ohio St.3d __, 2020-
Ohio-337, ¶ 10). But this does not mean that such principles are in conflict or that there is
no way to bring an R.C. 2307.60 action against the State. There is nothing, for example,
that prevents a litigant from first obtaining an entry or declaration from a court of
competent jurisdiction (such as the court of common pleas) to the effect that the State actor
committed a crime before filing against the State under R.C. 2307.60 in the Court of Claims.
But in this case, Evans filed his R.C. 2307.60 action in the Court of Claims without any
predicate ruling that a crime had occurred, and the Court of Claims does not have
jurisdiction to address that predicate question. Hence, Evans' R.C. 2307.60 suit, as
presently constituted, cannot move forward in the Court of Claims.
       {¶ 12} We overrule Evans' third assignment of error.
   D. Fourth Assignment of Error – Whether Evans Adequately Pled an ADA
      Claim
       {¶ 13} Regarding Evans' ADA claim, he alleges in his complaint, at a point beneath
his signature, just the following:
                                          NOTE:

               THE AMERICANS with DISABILITIES ACT [AND]
               REHABILITATION ACTION MAY BE IMPLICATED HERE
               AS WELL.42 U.S.C. §12101,et seq., and 29 U.S.C. [illegible]94.

(Compl. (see paragraph below the signature on page 2).) As the above-quoted text appears
after his signature, it is not one of the numbered paragraphs in the complaint, and it is not
grouped with the other allegations. We cannot discern from its placement and paucity of
factual allegations that it is intended as a separate cause of action. But even were we to
treat it so, the Court of Claims properly determined that it fell short of stating a claim on
which relief could be granted.
       {¶ 14} Analyzing the law as Evans pled it in his complaint, we observe that Evans
appears to be under the impression that a court is required to accept everything stated in a
complaint as true with the consequence that the granting of motions to dismiss are
No. 19AP-756                                                                                               6


essentially unachievable. (Compl. at ¶ 2.) However, a court is only required to "presume
all factual allegations contained in the complaint to be true." (Emphasis added.) McCuller,
2015-Ohio-3124, at ¶ 7; see also Rossford, 2004-Ohio-4362, at ¶ 5; Perez, 66 Ohio St.3d at
399; Mitchell, 40 Ohio St.3d at 192-93. A court is not required to accept the complaining
party's view of the law or their conclusory assertions about the validity of their claims under
the law. One Energy Ents., LLC v. Ohio Dept. of Transp., 10th Dist. No. 17AP-829, 2019-
Ohio-359, ¶ 71 (noting that "the court need not accept as true any unsupported and
conclusory legal propositions advanced in the complaint"), citing State ex rel. Seikbert v.
Wilkinson, 69 Ohio St.3d 489, 490 (1994); Morrow v. Reminger & Reminger Co. LPA, 183
Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.); accord Mitchell at 193.
        {¶ 15} Evans' ADA allegation is a paradigmatic example of a conclusory legal
assertion unsupported by any factual allegations. What disability does Evans have? How
was it not properly accommodated? How was he discriminated against as a consequence
of it? Evans does not allege any facts in his complaint to provide even allegorical answers
to these questions.
        {¶ 16} The Court of Claims did not err in finding that this "note" at the end of Evans'
complaint did not state a cause of action. Evans' fourth assignment of error is overruled.
    E. First Assignment of Error – Whether the Trial Court Used the Wrong
       Standard in Evaluating Evans' Complaint
        {¶ 17} Evans argues that there are many statutory and common law theories of relief
that could support recovery for his grievance and that, as a consequence, the trial court
erred in dismissing his action. (Evans' Brief at 2-3.)1 However, although the "no set of
facts" test is very permissive, the plaintiff still bears the responsibility of crafting "a short
and plain statement of the claim showing that the party is entitled to relief." (Emphasis
added.) Civ.R. 8(A); see also York, 60 Ohio St.3d at 145. In this case, Evans' complaint does
not show that he is entitled to relief such that his complaint could survive both Civ.R.
12(B)(1) and (6) challenges.




1 We also note that Evans asks that we make his brief in case No. 19AP-743 "wholly inclusive to the instant

Brief." (Evans' Brief at 1.) There is no provision in the local rules or the Ohio Rules of Appellate Procedure
for referencing briefs filed in another case as a substitute for briefing or as an incorporated supplement to
briefing. Moreover, doing so would violate App.R. 16(A)'s clear instructions about how briefs are to be
composed. We decline to follow Evans' request.
No. 19AP-756                                                                            7


          {¶ 18} Evans in his complaint simply expresses dissatisfaction about past and
possible future transfers (for which ODRC is generally immune from liability), but he does
not allege any factual reason that would permit us to view the transfer(s) complained of in
a light of anything other than general immunity. (Compl. in passim.) For example, Evans
states:
                The ODRC officials having transferred Evans out of pure
                retaliation and coersion,they uprooted Evans unecissarily and
                interfered with his legal efforts in the courts,which is a
                "property interest", the interference being "theft", and
                disrupted Evans's entire life.Evans is [not] saying that he has a
                right to be housed at a particular facility,but rather the right to
                not have a transfer occur as a retaliatory move,which is what
                occured here.For Evans is from SciotoCounty,some 380+ miles
                from Youngstown,and he did not request it,and in fact filed
                documents trying to prevent it.

                ***

                Evans also seeks to [prevent] a recurrance,and to halt any ideas
                of again transfering Evans from where he is now (N.E.O.C.C.-
                Youngstown) ,and to halt any ideas of reducing Evans's security
                unless he requests it. * * * Evans is essentially a model
                inmate.He has had no fights since once in 2005,and no drug
                conduct reports,and many certificates of his self-rehabilitation
                efforts for years on end. * * * Evans therefore asserts that he
                has [earned] the priviledge of not being transferred if he does
                not want that.Nobody cared when they done it from R.C.I. to
                N.E.O.C.C.,and that move violated law.So there is no grounds
                to have the Defendant claim they have any interest in
                transfering again.Evans wants any such stupidity stopped in
                it's tracks,as being a danger to his mental and physical
                health.He has a right to have a meaningful life,without being
                uprooted.

                ***

                Evans demands the O.D.R.C. get it's ass out of his [personal]
                life,when he violates no rule or law.Evans is 55 years old this
                April 24th.,and he well knows what is best for himself.Anything
                other is completely counter to rehabilitation and instead
                promotes disgust and resentment,and perhaps crime.So in the
                name of the law: BACK OFF!

(Sic passim.) (Compl. at ¶ 4, 6, 8.)
No. 19AP-756                                                                                  8


       {¶ 19} In short, Evans does not want to be moved from the prison facility where he
is currently imprisoned because it is disruptive to his life and inconvenient to him. As we
see it, an inevitable legal detriment of being a prisoner is being deprived of one's freedom
of movement. Although Evans speculates that the transfer(s) were or will be retaliatory, he
does not provide any factual allegations to support that why that legal conclusion may be
both true and actionable. The trial court was not bound to accept a mere statement of what
simply amounts to a conclusion, be it legal or factual. Id. at ¶ 4; One Energy, 2019-Ohio-
359, at ¶ 71.
       {¶ 20} Evans did not make significant enough statements in his complaint to infer
he is entitled to relief so as to avoid a dismissal of his complaint under both Civ.R. 12(B)(1)
and (6). Civ.R. 8(A). As such, dismissal was appropriate. Evans' first assignment of error
is overruled.
IV. CONCLUSION
       {¶ 21} In his complaint, Evans expressed dissatisfaction about the inconvenience
and hardship caused by past and potential future transfers between Ohio state prison
institutions. But Evans' conclusory allegations were insufficient to allege a claim under the
ADA. Evans' allegations that ODRC was liable for criminal acts were unsuccessfully
brought in the Court of Claims, a forum without jurisdiction to rule whether a crime has
occurred without the necessary predicate ruling from a court of competent jurisdiction to
that effect and also whether he has experience a denial of his constitutional rights. Evans'
allegations based on other principles of tort law also failed to state a claim or provide a basis
that would have excised them from the scope of ODRC's general immunity from liability
arising from decisions regarding inmate transfer and placement. Evans' four assignments
of error are overruled, and the Court of Claims of Ohio's judgment is affirmed.
                                                                          Judgment affirmed.

                       DORRIAN and BEATTY BLUNT, JJ., concur.
