[Cite as Hurley v. Dept. of Pub. Safety, 2010-Ohio-4340.]

                                                            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




JAMES R. HURLEY, JR.

        Plaintiff

        v.

DEPARTMENT OF PUBLIC SAFETY,
et al.

        Defendants
        Case No. 2009-06508

Judge Clark B. Weaver Sr.

DECISION




        {¶ 1} On June 21, 2010, defendants filed a motion for summary judgment
pursuant to Civ.R. 56(B). On July 12, 2010, plaintiff filed a response. On August 13,
2010, the court conducted an oral hearing on defendants’ motion.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “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.
         {¶ 4} Plaintiff, the proprietor of a trucking business known as M & H Hotshot
Express, operates what is referred to in the trucking industry as a “hot shot” rig, which is
the combination of a freight trailer hauled by a pickup truck rather than a full-size semi-
truck.       On July 26, 2007, Dale Webster, a motor carrier enforcement inspector
employed by defendant, Department of Public Safety (DPS), inspected plaintiff’s rig at
the weigh station on Interstate 70 near Cambridge, Ohio. As a result of the inspection,
Webster found plaintiff to be in violation of 49 C.F.R. 395.8(e), which prohibits the driver
of a “commercial motor vehicle” (CMV), as defined in the Code of Federal Regulations,
from recording “off-duty” hours in the driver’s logbook while sleeping in a vehicle that
does not contain a sleeper berth.1 As a result of the alleged violation, Webster issued
an order pursuant to Ohio Adm.Code 4901:2-5-07 placing plaintiff “out of service” for ten
hours and plaintiff consequently left his trailer at the weigh station and hired a driver to
transport him and his truck to a hotel.
         {¶ 5} Webster subsequently transmitted a report of the inspection and alleged
violation to PUCO pursuant to Ohio Adm.Code 4901:2-7-04.                    On March 10, 2008,
PUCO issued a “Notice of Preliminary Determination” pursuant to Ohio Adm.Code
4901:2-7-12, informing plaintiff that PUCO intended to assess him with a civil forfeiture
of $100 for violating 49 C.F.R. 395.8(e). On December 4, 2008, the matter came before
a panel of commissioners of the PUCO for a hearing at which plaintiff appeared pro se,
and defendant, Office of Attorney General (OAG), appeared on behalf of PUCO.
         {¶ 6} At the hearing, plaintiff argued that his truck, notwithstanding the trailer,
was not subject to the relevant CMV regulations inasmuch as its gross vehicle weight
rating had been modified to 10,000 pounds prior to the date of the alleged violation, just
below the 10,001-pound threshold at which a vehicle may be considered a CMV under
49 C.F.R. 390.5. Plaintiff further argued that the truck bore a decal which reflected its

         1
         Pursuant to Ohio Adm.Code 4901:2-5-02, motor carriers engaged in interstate commerce must
comply with this and certain other motor carrier safety regulations set by the federal department of
transportation and adopted by defendant, Public Utilities Commission of Ohio (PUCO). R.C. 5502.01(F)
provides that DPS “shall enforce compliance with orders and rules of [PUCO] * * * regarding commercial
motor vehicle transportation safety, economic, and hazardous materials requirements.”
modified weight rating, but that Webster failed to take notice of it and instead entered
the manufacturer-specified weight rating of the truck on the inspection report. Plaintiff
acknowledged that the gross combination weight rating of the truck and trailer together
subjected the truck to the relevant CMV regulations at all times while the trailer was
attached, but he asserted that the trailer had not been attached to the truck during the
hours at issue in his logbook and that he was thus not prohibited from logging off-duty
and sleeping in his truck during those hours.
       {¶ 7} On March 18, 2009, the commissioners issued an opinion and order
finding that PUCO failed to prove the alleged violation by a preponderance of the
evidence, specifically concluding that PUCO proved neither that plaintiff’s truck met the
definition of a CMV, nor that a trailer had been attached to the truck during the relevant
hours in plaintiff’s logbook.     Accordingly, the commissioners ordered that plaintiff
“should not be assessed the civil forfeiture of $100.00, and the alleged violation of 49
C.F.R. 395.8(e) should be removed from [plaintiff’s] Safety-Net record and history of
violations.”
       {¶ 8} On July 23, 2009, plaintiff filed his complaint in this action. The crux of
plaintiff’s complaint is that Webster submitted a “falsified” inspection report to PUCO
inasmuch as he reported that he performed a “level one” inspection of plaintiff’s rig as
defined by federal regulations, but actually performed a less thorough inspection.
Plaintiff asserts that such actions by Webster amounted to criminal falsification, and that
after plaintiff advised PUCO and AGO of the same they should have dismissed the
proceedings against him.        Plaintiff further asserts that the failure of one or more
assistant attorneys general to dismiss the proceedings violated attorney ethics rules.
       {¶ 9} Plaintiff seeks equitable relief in the form of an injunction against DPS “to
cease and desist from ‘profiling’ hot shot type rigs.” Plaintiff further requests that the
court enjoin PUCO to remove the alleged violation of 49 C.F.R. 395.8(e) from its
records in accordance with the commissioners’ opinion and order of March 18, 2009.
       {¶ 10} Plaintiff also seeks monetary damages for “loss of use, income, future
income, insurance loss and increases, damages to vehicle, unlawful detention and
counseling and losses not yet known * * * due to the defendants wanton, negligent,
reckless, malicious conduct, acting in bad faith and operating under the color of law.”
       {¶ 11} Although the legal theory underlying plaintiff’s claim for monetary
damages is not made clear in the complaint, to the extent that it may be construed as a
claim for malicious civil prosecution, the elements of this cause of action are as follows:
“(1) malicious institution of prior proceedings against the plaintiff by defendant, (2) lack
of probable cause for the filing of the prior lawsuit, (3) termination of the prior
proceedings in plaintiff's favor, and (4) seizure of plaintiff's person or property during the
course of the prior proceedings.” Robb v. Chagrin Lagoons Yacht Club, Inc. (1995), 75
Ohio St.3d 264, syllabus.
       {¶ 12} With regard to the fourth element, plaintiff does not allege, nor is there any
evidence to suggest, that his person or property were seized during the course of the
proceedings before the PUCO. While PUCO initially sought to assess a civil monetary
forfeiture of $100 against plaintiff for the alleged violation of 49 C.F.R. 395.8(e), the
subsequent hearing on the matter resulted in the commissioners ordering that the
forfeiture should not be assessed. Therefore, inasmuch as plaintiff fails to satisfy the
element of seizure necessary for a claim of malicious civil prosecution, this claim must
fail as a matter of law.
       {¶ 13} With respect to plaintiff’s assertion that Webster committed the crime of
falsification as defined in R.C. 2921.13, the court lacks subject matter jurisdiction. R.C.
2921.13 is a criminal statute and it is well settled that the Court of Claims does not have
jurisdiction over criminal matters against the state. See Howard v. Supreme Court of
Ohio, Franklin App. Nos. 04AP-1093 & 04AP-1272, 2005-Ohio-2130, ¶17.
       {¶ 14} Furthermore, the court lacks jurisdiction insofar as plaintiff argues that an
assistant attorney general engaged in professional misconduct by pursuing the alleged
violation before the PUCO. The disciplinary process for members of the Ohio bar falls
within the exclusive jurisdiction of the Supreme Court of Ohio pursuant to Section
2(B)(1)(g), Article IV of the Ohio Constitution. See Hecht v. Levin, 66 Ohio St.3d 458,
461, 1993-Ohio-110.
       {¶ 15} With regard to plaintiff’s request for an injunction ordering DPS to “cease
and desist from ‘profiling’ hot shot type rigs,” plaintiff essentially asserts that DPS motor
carrier enforcement officers use impermissible criteria in selecting which CMVs to stop
and inspect.    However, the basis for challenging the time, place, or scope of such
warrantless administrative stops or searches may be found under the Fourth
Amendment to the U.S. Constitution. See State v. Landrum (2000), 137 Ohio App.3d
718. It has been consistently held that this court is without jurisdiction to consider
claims for relief premised upon alleged violations of either the Ohio or United States
Constitution. See, e.g., Graham v. Ohio Bd. of Bar Examiners (1994), 98 Ohio App.3d
620; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App.3d 170.
        {¶ 16} Moreover, plaintiff had the opportunity during the proceedings before the
PUCO to object to the criteria employed by Webster in stopping and searching his rig.
To the extent that plaintiff is dissatisfied with or seeks review of those proceedings, the
Tenth District Court of Appeals has exclusive jurisdiction to hear such an appeal. See B
& T Express, Inc. v. Pub. Util. Comm. of Ohio (2001), 145 Ohio App.3d 656, 661.
        {¶ 17} Finally, to the extent that plaintiff seeks to enjoin PUCO to remove the
alleged violation from its records pursuant to the commissioners’ opinion and order of
March 18, 2009, defendants assert that the relevant deletion has been performed. To
this end, defendants submitted the affidavit of Robert Leader, Assistant Chief for
Administrative Systems of the Transportation Department at PUCO. Therein, Leader
states that “[o]n August 18, 2009, I deleted violation 49 C.F.R. 395.8(e) from the Ohio
Driver/Vehicle Examination Report No. OH 3249002339 pertaining to [plaintiff].” Leader
further states that as a result of this deletion, the alleged violation was automatically
deleted from the federal Motor Carrier Management Information System.
        {¶ 18} Plaintiff provided no evidence to rebut Leader’s assertions or to otherwise
demonstrate that PUCO failed to remove the alleged violation from its records in
accordance with the commissioners’ opinion and order of March 18, 2009. Accordingly,
reasonable minds can only conclude that PUCO removed the relevant records and that
plaintiff’s request for injunctive relief is therefore rendered moot.
        {¶ 19} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendants are entitled to judgment as a matter of law.
Accordingly, defendants’ motion for summary judgment shall be granted and judgment
shall be rendered in favor of defendants. All other pending motions are DENIED as
moot.
                                               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




JAMES R. HURLEY, JR.

      Plaintiff

      v.

DEPARTMENT OF PUBLIC SAFETY,
et al.

      Defendants
      Case No. 2009-06508

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




       An oral hearing was conducted in this case upon defendants’ motion for
summary judgment.       For the reasons set forth in the decision filed concurrently
herewith, defendants’ motion for summary judgment is GRANTED and judgment is
rendered in favor of defendants. 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.



                                          _____________________________________
                                          CLARK B. WEAVER SR.
                                          Judge

cc:
Stephanie D. Pestello-Sharf           James R. Hurley, Jr.
Assistant Attorney General            7580 Old Acton Road
150 East Gay Street, 18th Floor       Moody, Alabama 35004
Columbus, Ohio 43215-3130

RCV/cmd
Filed September 3, 2010
To S.C. reporter September 14, 2010
