[Cite as Benick v. Dept. of Agriculture, 2019-Ohio-5469.]




BRIAN L. BENICK                                         Case No. 2018-01543JD

        Plaintiff                                       Judge Patrick M. McGrath
                                                        Magistrate Robert Van Schoyck
        v.
                                                        ENTRY GRANTING DEFENDANT’S
DEPARTMENT OF AGRICULTURE                               MOTION FOR JUDGMENT ON THE
                                                        PLEADINGS
        Defendant
        {¶1} On November 20, 2019, defendant filed a motion for judgment on the
pleadings pursuant to Civ.R. 12(C). Plaintiff did not file a response.
        {¶2}     “Civ.R. 12(C) may be employed by a defendant as a vehicle for raising the
several defenses contained in Civ.R. 12(B) after the close of the pleadings. * * *
Pursuant to Civ.R. 12(C), the pleadings must be construed liberally and in a light most
favorable to the party against whom the motion is made along with the reasonable
inferences drawn therefrom. * * * A Civ.R. 12(C) motion presents only questions of law,
and it may be granted only when no material factual issues exist, and the movant is
entitled to a judgment as a matter of law.” Burnside v. Leimbach, 71 Ohio App.3d 399,
402-403, 594 N.E.2d 60 (10th Dist.1991).
        {¶3}     Defendant’s motion raises the defenses contained in Civ.R. 12(B)(1) and
(6). “The standard of review for a dismissal pursuant to Civ.R. 12(B)(1) is whether any
cause of action cognizable by the forum has been raised in the complaint.” State ex rel.
Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). “In order for a court to
dismiss a complaint for failure to state a claim upon which relief can be granted
(Civ.R. 12(B)(6)), 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, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
        {¶4}     According to the complaint and documents attached thereto, plaintiff was
formerly employed with the Morrow County Health Department as Director of
Environmental Health. Plaintiff seeks $50,000,000 in damages arising from allegations
Case No. 2018-01543JD                        -2-                                     ENTRY


that defendant’s “Food Safety Division forces local health departments to violate state
laws and state rules.”     (Complaint, ¶ 12, 14.)      The complaint provides that such
violations have “occurred for years” throughout the state and “specifically in Morrow Co.
since 7/28/16”. (Id., ¶ 10-11.) On that date, July 28, 2016, defendant notified the
Morrow County Health Department that its Retail Food Establishment Licensing and
Inspection Program would be classified as “provisional” due to several deficiencies that
defendant found while conducting a survey of the program pursuant to R.C. 3717.11
and Ohio Adm.Code 901:3-4-17, according to an attachment to the complaint.
       {¶5}   Plaintiff, who disagreed with the results of that survey, claims that
defendant “forces [local health districts] to require food-related businesses to install
equipment not specified in rules” and “forced [the Morrow County Health Department] to
close Amish businesses, violating the Ohio Supreme Court deliberately.” (Id., ¶ 12.)
According to plaintiff:
       [defendant] regularly exceeds their authority, forcing [local health districts]
       to document huge numbers of violations, when it is the local health
       departments’ authority to determine what constitutes a violation.
       [Defendant] deliberately ignores the lawful definitions of “food service
       operation” and “retail food establishment” to force [local health districts] to
       provide money to [defendant] that lawfully is required to go to [the Ohio
       Department of Health].
(Id.) Plaintiff asserts that he has “taken every possible action to avoid being forced to
violate state laws + rules.     My supervisor, my subordinate, MCHD board of health,
[defendant] and local health departments have all interferred [sic] with my efforts, forced
me to violate state laws + rules, and resulting in my termination.” (Id., ¶ 13.)
       {¶6}   As defendant notes in its motion for judgment on the pleadings, the
complaint does not identify any specific cause of action. The gravamen of the complaint
aims to challenge what plaintiff claims are violations of defendant’s statutory
Case No. 2018-01543JD                       -3-                                    ENTRY


responsibilities to survey retail food establishment programs administered by boards of
health throughout the state. Basically, plaintiff contends that defendant has exceeded
its authority in performing these surveys or otherwise exercising its regulatory or
supervisory duties and has misapplied applicable laws and regulations.           Defendant
argues, however, that such allegations do not support a claim upon which relief can be
granted in this court. The court agrees.
       {¶7}   “The Court of Claims Act, effective January 1, 1975, waived the state’s
sovereign immunity and established the Court of Claims * * *.” Keller v. Dailey, 124
Ohio App.3d 298, 302, 706 N.E.2d 28 (10th Dist.1997).           “The court of claims has
exclusive, original jurisdiction over civil actions against the state for money damages
that sound in law.” Young v. Ohio State Univ. Hosps., 2017-Ohio-2673, 90 N.E.3d 234,
¶ 13 (10th Dist.), citing R.C. 2743.03(A)(1).     “While the state waived its sovereign
immunity in R.C. 2743.02, the state also limited its amenability to suit.” Cardi v. Dept. of
Commerce, 10th Dist. Franklin No. 12AP-15, 2012-Ohio-6157, ¶ 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 Rehab. & Corr., 10th Dist. Franklin No. 03AP-
350, 2003-Ohio-5895, ¶ 13; see also Henneke v. Ohio Dept. of Ins., 10th Dist. Franklin
No. 11AP-254, 2011-Ohio-5366, ¶ 8.         “Thus, suits against the state are inherently
limited by the type of action asserted against it; if the cause of action is not cognizable
as between private parties, then there can likewise be no state liability. For instance,
actions * * * that do not sound in tort but seek recovery purely for a statutory violation
will not necessarily lie against the state—particularly if the statute in question provides
no private right of action.” Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266,
2002-Ohio-4210, 773 N.E.2d 1018, ¶ 37.
       {¶8}   Plaintiff seeks to recover damages based on defendant’s alleged failure to
abide by its statutory and regulatory responsibilities with regard to surveying retail food
establishment programs administered by boards of health.                 Plaintiff has not
Case No. 2018-01543JD                       -4-                                     ENTRY


demonstrated, however, that the applicable statutes or regulations create a private right
of action. In the absence of a statutory basis for this lawsuit, plaintiff does not have a
viable claim for money damages against the state. See Vos v. Ohio Environmental
Protection Agency, 10th Dist. Franklin No. 17AP-749, 2018-Ohio-2956, ¶ 11.
       {¶9}   Defendant also argues that even if plaintiff’s complaint could be
interpreted to state a cognizable claim for relief, defendant is immune from liability since
any such claim would involve defendant’s performance or nonperformance of a “public
duty.” “Generally, the state is ‘immune from liability in any civil action or proceeding
involving the performance or nonperformance of a public duty.’” Lawrence v. Meridian
Senior Living, L.L.C., 2016-Ohio-8500, 79 N.E.3d 1158, ¶ 8 (10th Dist.), quoting
R.C. 2743.02(A)(3)(a). As defined in R.C. 2743.01(E)(1), “‘[p]ublic duty’ includes, but is
not limited to, any statutory, regulatory, or assumed duty concerning any action or
omission of the state involving any of the following: (a) Permitting, certifying, licensing,
inspecting, investigating, supervising, regulating, auditing, monitoring, law enforcement,
or emergency response activity * * *.”
       {¶10} Pursuant to R.C. 3717.11, defendant has a duty to conduct surveys of
boards of health “for the purpose of determining whether the board is qualified and has
the capacity to administer and enforce this chapter and the rules adopted under it and to
abide by the Ohio uniform food safety code.” As a matter of law, this supervisory duty
on the part of defendant is owed to the general public rather than any particular
individual and defendant is therefore immune from liability in any civil action involving
the performance or nonperformance of such duty, pursuant to the public duty rule set
out in R.C. 2743.02(A)(3)(a).     See Benick v. Dept. of Health, Ct. of Cl. No. 2018-
01165JD, 2019-Ohio-3693, ¶ 13 (involving duty to survey health districts under
R.C. 3718.07). Moreover, the complaint does not put forth factual allegations sufficient
to establish the “special relationship” exception to the public duty rule under
Case No. 2018-01543JD                           -5-                                 ENTRY


R.C. 2743.02(A)(3)(b).          See Estate of Tokes v. Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 18AP-723, 2019-Ohio-1794, ¶ 36-37.
         {¶11} Finally, to the extent that the complaint may be construed as a collateral
attack upon defendant’s administrative determination under R.C. 3717.11 and Ohio
Adm.Code 901:3-4-17, the court of claims “generally lacks appellate jurisdiction over
administrative decisions.” Hulbert v. Ohio Bur. of Workers’ Comp., 10th Dist. Franklin
No. 14AP-374, 2014-Ohio-3937, ¶ 7.              And, with respect to plaintiff’s claim that
defendant violated the rights of the Amish, ordinarily a non-attorney pro se litigant may
only represent his or her own legal interests. See Hamilton v. Ohio Dept. of Health,
2015-Ohio-4041, 42 N.E.3d 1261, ¶ 29 (10th Dist.); State ex rel. Manning v. Adult
Parole Auth., 10th Dist. Franklin No. 15AP-1050, 2016-Ohio-7946, ¶ 15.
         {¶12} Based upon the foregoing, defendant’s motion for judgment on the
pleadings is GRANTED and judgment is rendered in favor of defendant. All previously
scheduled events are VACATED. 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.




                                               PATRICK M. MCGRATH
                                               Judge

Filed December 30, 2019
Sent to S.C. Reporter 1/24/20
