[Cite as Allen v. Dept. of Rehab. & Corr., 2015-Ohio-383.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



John D. Allen,                                          :

                 Plaintiff-Appellant,                   :
                                                                      No. 14AP-619
v.                                                      :        (Ct. of Cl. No. 2014-00030)

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



                                          D E C I S I O N

                                     Rendered on February 3, 2015


                 John D. Allen, pro se.

                 Michael DeWine, Attorney General, and Amber Wootton
                 Hertlein, for appellee.

                             APPEAL from the Court of Claims of Ohio

SADLER, J.
        {¶ 1} Plaintiff-appellant, pro se, John D. Allen, appeals from a judgment of the
Court of Claims of Ohio in favor of defendant-appellee, Ohio Department of
Rehabilitation and Correction ("DRC").                For the reasons that follow, we affirm the
judgment of the Court of Claims.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Appellant is an inmate at a DRC facility known as the Hocking Correctional
Facility ("HCF"). According to appellant's complaint and affidavit, on June 18, 2013, his
cellmate, Michael Decost, assaulted him by "punching [him] in the back (kidney)." On
January 15, 2014, appellant filed a civil action against DRC alleging that DRC's employees
No. 14AP-619                                                                                2


violated his civil rights as well as several criminal statutes in connection with the assault
by Decost.
       {¶ 3} DRC filed a motion for summary judgment on June 11, 2014. On July 1,
2014, appellant filed a memorandum in opposition to the motion.                    Appellant
subsequently filed a motion for judgment on the pleadings, pursuant to Civ.R. 12(C), on
July 3, 2014. On July 29, 2014, the Court of Claims issued a judgment entry denying
appellant's motion for judgment on the pleadings, dismissing appellant's statutory and
constitutional claims for lack of subject-matter jurisdiction, and granting summary
judgment in favor of DRC as to appellant's negligence claim. Appellant filed a timely
notice of appeal to this court on August 11, 2014.
II. ASSIGNMENT OF ERROR
       {¶ 4} Appellant assigns the following as his sole assignment of error:
               The lower court erred by not affording Appellant his rightful
               civil remedies for Defendant's criminal acts.

III. STANDARD OF REVIEW
       {¶ 5} Pursuant to Civ.R. 56(C), 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." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
       {¶ 6} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Once
the moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial. Id. at 293. Because summary judgment is a
No. 14AP-619                                                                              3


procedural device to terminate litigation, courts should award it cautiously after resolving
all doubts in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,
358-59 (1992).
       {¶ 7} Appellate review of summary judgments is de novo. Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935. When an appellate
court reviews a trial court's disposition of a summary judgment motion, it applies the
same standard as the trial court and conducts an independent review, without deference
to the trial court's determination. Id., citing Maust v. Bank One Columbus, N.A., 83 Ohio
App.3d 103, 107 (10th Dist.1992). We must affirm the trial court's judgment if any of the
grounds raised by the movant in the trial court are found to support it, even if the trial
court failed to consider those grounds. Helfrich v. Allstate Ins. Co., 10th Dist. No. 12AP-
559, 2013-Ohio-4335, ¶ 7 (10th Dist.), citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38,
41-42 (9th Dist.1995).
       {¶ 8} We also review judgments dismissing a complaint for lack of subject-matter
jurisdiction under the de novo standard. Cullinan v. Ohio Dept. of Job & Family Servs.,
10th Dist. No. 12AP-208, 2012-Ohio-4836, ¶ 5, citing Windsor House, Inc. v. Ohio Dept.
of Job & Family Servs., 10th Dist. No. 09AP-584, 2010-Ohio-257, ¶ 8. The test is whether
the complaint states a claim for relief cognizable in the forum. Univ. of Toledo v. Ohio
State Emp. Relations Bd., 10th Dist. No. 11AP-834, 2012-Ohio-2364, ¶ 8, citing Crable v.
Ohio Dept. of Youth Servs., 10th Dist. No. 09AP-191, 2010-Ohio-788, ¶ 8.
IV. LEGAL ANALYSIS
       {¶ 9} In his sole assignment of error, appellant contends that the Court of Claims
erred by not affording him his rightful civil remedies for defendant's criminal acts. We
disagree.
       {¶ 10} In his complaint, appellant alleges that DRC is subject to civil liability for
the actions or omissions of its employees under the following legal theories: dereliction of
duty, in violation of R.C. 2921.44, a misdemeanor in the second degree; civil rights
violations as prohibited by R.C. 2921.45, misdemeanors in the first degree; and complicity
in the commission of the foregoing offenses, in violation of R.C. 2923.03. Appellant
alleges that DRC's violation of criminal statutes is actionable in the Court of Claims by
operation of R.C. 2307.60(A)(1), which provides in relevant part: "Anyone injured in
No. 14AP-619                                                                              4


person or property by a criminal act has, and may recover full damages in, a civil action
unless specifically excepted by law."
       {¶ 11} The Court of Claims concluded that it did not have subject-matter
jurisdiction to determine DRC's civil liability under any of the legal theories specified in
appellant's complaint. We agree.
       {¶ 12} In Cullinan, the Supreme Court of Ohio made the following observations
about the subject-matter jurisdiction of the Court of Claims:
               The Court of Claims * * * is a court of limited jurisdiction
               having exclusive, original jurisdiction over claims brought
               against the state as a result of the state's waiver of immunity
               under R.C. 2743.02. The Court of Claims has exclusive,
               original jurisdiction over civil actions filed against the state for
               money damages sounding in law.

(Citations omitted.) Id. at ¶ 6.
       {¶ 13} "R.C. 2743.02 limits actions brought in the Court of Claims to those which
could be brought between private parties." Peters v. Ohio Dept. of Natural Resources,
10th Dist. No. 03AP-350, 2003-Ohio-5895, ¶ 13. See also Hamilton v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 06AP-916, 2007-Ohio-1173, ¶ 14. Accordingly, we have
consistently held that the Court of Claims does not have jurisdiction over any criminal
matters against the state, as " 'R.C. 2743.02 does not confer jurisdiction to the Court of
Claims to consider criminal charges that should be adjudicated in the courts of common
pleas.' " Howard v. Supreme Court of Ohio, 10th Dist. No. 04AP-1093, 2005-Ohio-2130,
¶ 17, quoting Troutman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 03AP-1240, 2005-
Ohio-334. This court has also concluded that R.C. 2307.60(A)(1) "is merely a codification
of the common law that a civil action is not merged in a criminal prosecution." Edwards
v. Madison Twp., 10th Dist. No. 97APE06-819 (Nov. 25, 1997), appeal not allowed, 81
Ohio St.3d 1495 (1998). The statute does not create a separate civil action. Id. See also
Groves v. Groves, 10th Dist. No. 09AP-1107, 2010-Ohio-4515, ¶ 25 ("A party must rely on
a separate civil cause of action, existent either in the common law or through statute, to
bring a civil claim based on a criminal act.").
       {¶ 14} Similarly, it is well-settled law that the Court of Claims does not have
subject-matter jurisdiction of actions alleging that the state violated an inmate's
No. 14AP-619                                                                             5


constitutional rights. Cotten v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 13AP-935,
2014-Ohio-2619, ¶ 17-20; Hamilton at ¶ 14. "It is also true that a [civil rights] action
under 42 U.S.C. 1983 may not be brought against the state in the Court of Claims because
the state is not a 'person' within the meaning of 42 U.S.C. 1983." Hanna v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 09AP-374, 2009-Ohio-5094, ¶ 6, citing Jett v. Dallas
Indep. School Dist., 491 U.S. 701 (1989).
       {¶ 15} For the foregoing reasons, we hold that the Court of Claims lacked subject-
matter jurisdiction to consider appellant's claims for relief grounded upon DRC's alleged
violations of appellant's constitutional or statutory rights as specified in the complaint.
Thus, the Court of Claims did not err when it dismissed those claims.
       {¶ 16} The Court of Claims went on to examine the material factual allegations of
the complaint and concluded that appellant's complaint sounded in common law
negligence, even though appellant had specified other legal theories. Accordingly, we will
conduct a de novo review to determine whether the evidence gives rise to a reasonable
inference of actionable negligence on the part of DRC.
       {¶ 17} To prevail on a negligence claim, appellant must establish that (1) DRC
owed him a duty, (2) DRC breached that duty, and (3) DRC's breach proximately caused
his injuries. Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 02AP-1109, 2003-
Ohio-3533, ¶ 20, citing Macklin v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 01AP-293,
2002-Ohio-5069. "In the context of a custodial relationship between the state and its
inmates, the state owes a common-law duty of reasonable care and protection from
unreasonable risks of physical harm." McElfresh v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 04AP-177, 2004-Ohio-5545, ¶ 16, citing Woods v. Ohio Dept. of Rehab. & Corr.,
130 Ohio App.3d 742, 744-45 (10th Dist.1998). "Reasonable care is that degree of caution
and foresight an ordinarily prudent person would employ in similar circumstances." Id.
The state's duty of reasonable care does not render it an insurer of inmate safety.
Williams v. S. Ohio Corr. Facility, 67 Ohio App.3d 517, 526 (10th Dist.1990), citing
Clemets v. Heston, 20 Ohio App.3d 132 (6th Dist.1985). "However, 'once [the state]
becomes aware of a dangerous condition[,] it must take reasonable care to prevent injury
to the inmate.' " Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-
Ohio-1017, ¶ 8, citing Briscoe at ¶ 20.
No. 14AP-619                                                                                 6


        {¶ 18} Appellant's complaint essentially alleges that DRC was negligent in failing to
prevent the assault by Decost. In Watson, we set forth the legal standard applicable to
such claims as follows:
               The law is well-settled in Ohio that ODRC is not liable for the
               intentional attack of one inmate by another, unless ODRC has
               adequate notice of an impending assault. Mitchell v. Ohio
               Dept. of Rehab. & Corr., 107 Ohio App.3d 231, 235 (10th
               Dist.1995), citing Baker v. State, Dept. of Rehab. & Corr., 28
               Ohio App.3d 99 (10th Dist.1986). Notice may be actual or
               constructive, the distinction being the manner in which the
               notice is obtained rather than the amount of information
               obtained. Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist.
               No. 09AP-1052, 2010-Ohio-4736, ¶ 14. Actual notice exists
               where the information was personally communicated to or
               received by the party. Id. "Constructive notice is that notice
               which the law regards as sufficient to give notice and is
               regarded as a substitute for actual notice." Id., citing In Re
               Estate of Fahle, 90 Ohio App. 195, 197 (6th Dist.1950).

Id. at ¶ 9.
        {¶ 19} Appellant's affidavit provides in relevant part as follows:
               [Appellant] has personally heard Michael Decost threaten to
               beat up inmates in the Day Room for not letting him watch his
               T.V. Programs. [Appellant] has personally heard Michael
               Decost threaten to beat up his wife as soon as he gets out of
               prison. [Appellant] has personally heard Michael Decost
               threaten to beat up the older inmates at HCF simply because
               they "pissed him off." Michael Decost is in prison for
               Domestic Violence (5 different times) and Michael Decost
               continuously threatens other HCF inmates almost on a daily
               basis.

        {¶ 20} The Court of Claims determined that appellant's affidavit did not give rise to
a reasonable inference that DRC either knew or should have known of the impending
attack by Decost on appellant. We agree.
        {¶ 21} While the affidavit states that Decost is a violent offender and that he has, in
the recent past, made public threats of violence against other unidentified inmates, the
averments in the affidavit do not permit the inference that Decost threatened to harm
appellant in particular. Even if we accept appellant's claim that he feared an imminent
assault by Decost, appellant does not claim that he personally informed DRC of his fears.
No. 14AP-619                                                                             7


Nor does appellant claim that anyone else told DRC that Decost was planning to assault
appellant. Thus, there is no evidence that DRC had actual notice of an impending assault.
      {¶ 22} Nor does appellant's affidavit contain sufficient facts upon which it may be
reasonably inferred that DRC had constructive notice that an assault upon appellant was
imminent. While appellant avers that Decost threatened other inmates, he does not claim
that Decost ever made good on those threats. The fact that DRC knew that Decost was a
violent offender who had made threats of violence toward other inmates is insufficient,
standing alone, to establish constructive notice to DRC of an imminent attack on
appellant. See Watson at ¶ 19 (declining to adopt the "deliberate indifference" standard
set forth in Greene v. Bowles, 361 F.3d 290, 294 (6th Cir.2004), and Brown v. Budz, 398
F.3d 904 (7th Cir.2005)). See also Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
09AP-1052, 2010-Ohio-4736, ¶ 15 (the fact that DRC was aware that an inmate was not
taking his medication, mumbled to himself, and was acting erratically does not translate
into actual or constructive notice to DRC that the inmate posed a risk of violence or that
his attack on plaintiff was forthcoming). As the Court of Claims noted, " 'it is the
inevitable nature of penal institutions that they will contain a fair proportion, perhaps a
preponderance, of violent and dangerous individuals.' " (Court of Claims' Decision, 4,
quoting Kordelewski v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 00AP-1109 (June 21,
2001).)
      {¶ 23} In short, construing the evidence in appellant's favor, we find that appellant
has failed to produce evidence which would support a reasonable inference that DRC
either knew or should have known of the impending attack on appellant. Consequently,
appellant's negligence claim fails as a matter of law. Watson; Mitchell v. Ohio Dept. of
Rehab. & Corr., 107 Ohio App.3d 231 (10th Dist.1995); Hughes.
      {¶ 24} Finally, to the extent that appellant's assignment of error challenges the
denial of his motion for judgment on the pleadings, we note that when presented with
such a motion, a court must construe all the material allegations of the pleadings, in
addition to any reasonable inferences to be drawn therefrom, in favor of the nonmovant.
See Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048 (10th
Dist.). "Appellate review of motions for judgment on the pleadings is de novo, without
deference to the trial court's determination." Schmidt v. Grossman Law Office, 10th Dist.
No. 14AP-619                                                                              8


No. 14AP-127, 2014-Ohio-4227, ¶ 13, citing Fontbank, Inc. v. CompuServe, Inc., 138 Ohio
App.3d 801, 807 (10th Dist.2000). In its answer to the complaint, DRC admits that
appellant is an inmate at HCF but denies all remaining allegations in the complaint.
Thus, a de novo review reveals no basis for a judgment on the pleadings in appellant's
favor.
         {¶ 25} Based on the foregoing, we hold that the Court of Claims did not err when it
denied appellant's motion for judgment on the pleadings, dismissed each of the claims
specified in the complaint for the lack of subject-matter jurisdiction, and granted
summary judgment in favor of DRC as to appellant's negligence claim. Accordingly,
appellant's sole assignment of error is overruled.
V. CONCLUSION
         {¶ 26} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                       Judgment affirmed.

                           DORRIAN and T. BRYANT, JJ., concur.
               T. BRYANT, J., retired, formerly of the Third Appellate
               District, assigned to active duty under authority of the Ohio
               Constitution, Article IV, Section 6(C).

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