[Cite as Reid v. Dept. of Rehab. & Corr., 2011-Ohio-1859.]

                                                        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




MAURICE REID

       Plaintiff

       v.

DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2010-12265-AD

Judge Alan C. Travis
Magistrate Matthew C. Rambo

DECISION




        {¶ 1} On February 28, 2011, defendant filed a motion to dismiss plaintiff’s
amended complaint pursuant to Civ.R. 12(B)(1) and (6), and pursuant to Civ.R. 41(B)(1)
because it does not comply with the court’s January 18, 2011 order. On March 16,
2011, plaintiff filed a response.
        {¶ 2} “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 (1989), 42 Ohio St.3d 77, 80. In construing a motion to
dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations
of the complaint are true and make all reasonable inferences in favor of the non-moving
party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190. Then, before the court
may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set
of facts entitling him to recovery.            O’Brien v. University Community Tenants Union
(1975), 42 Ohio St.2d 242.
       {¶ 3} Plaintiff is an inmate in the custody and control of defendant at the
Mansfield Correctional Institution (ManCI) pursuant to R.C. 5120.16. In his amended
complaint, plaintiff alleges that defendant retaliated against him by forcing him to
frequently change cells; that “$135 of his property” was stolen while it was in
defendant’s possession; that Corrections Lieutenant Page authored a false conduct
report against him; and that Corrections Lieutenant Menard has told other inmates that
he is an “old ass snitch, wanna-be attorney.”
       {¶ 4} Defendant argues that this court lacks subject matter jurisdiction over
plaintiff’s claims of retaliation, that it is entitled to discretionary immunity for decisions to
move plaintiff between cells, that plaintiff cannot recover for the loss of contraband, and
that plaintiff did not comply with the court’s January 18, 2011 order to specify the
alleged defamatory statements, when they were made, and to whom they were
published.
       {¶ 5} With respect to plaintiff’s retaliation claim, such a claim is treated as
arising under 42 U.S.C. 1983. State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 91,
1994-Ohio-37. It is well-settled that such claims are not actionable in the Court of
Claims.      See Thompson v. Southern State Community College (June 15, 1989),
Franklin App. No. 89AP-114; Burkey v. Southern Ohio Corr. Facility (1988), 38 Ohio
App.3d 170.
       {¶ 6} The Supreme Court of Ohio has held that “[t]he language in R.C. 2743.02
that ‘the state’ shall ‘have its liability determined * * * in accordance with the same rules
of law applicable to suits between private parties * * *’ means that the state cannot be
sued for its legislative or judicial functions or the exercise of an executive or planning
function involving the making of a basic policy decision which is characterized by the
exercise of a high degree of official judgment or discretion.” Reynolds v. State (1984),
14 Ohio St.3d 68, 70; Von Hoene v. State (1985), 20 Ohio App.3d 363, 364. Prison
administrators are provided “wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Bell v. Wolfish (1979), 441 U.S. 520,
547.
       {¶ 7} Defendant’s decisions with respect to plaintiff’s cell assignment are
characterized by a high degree of official judgment or discretion.                Accordingly,
defendant is entitled to discretionary immunity from suits arising out of such decisions
as a matter of law.
       {¶ 8} Plaintiff’s claim of harassment sounds in intentional infliction of emotional
distress.   In order to sustain such a claim, plaintiff must show that: “(1) defendant
intended to cause emotional distress, or knew or should have known that actions taken
would result in serious emotional distress; (2) defendant’s conduct was extreme and
outrageous; (3) defendant’s actions proximately caused plaintiff’s psychic injury; and (4)
the mental anguish plaintiff suffered was serious.” Hanly v. Riverside Methodist Hosp.
(1991), 78 Ohio App.3d 73, 82, citing Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34.
       {¶ 9} To constitute conduct sufficient to give rise to a claim of intentional
infliction of emotional distress, the conduct must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.” Yeager v. Local Union 20,
Teamsters (1983), 6 Ohio St.3d 369, 375, quoting 1 Restatement of the Law 2d, Torts
(1965) 73, Section 46, Comment d.
       {¶ 10} “It has not been enough that the defendant has acted with an intent which
is tortious or even criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by ‘malice,’ or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. * * * Generally, the case
is one in which the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ The
liability clearly does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Id. at 374-375.
       {¶ 11} Upon review, the court finds that plaintiff’s allegation that Menard referred
to him as an “old ass snitch, wanna-be attorney” cannot be reasonably construed as
extreme and outrageous for purposes of recovering on a claim for intentional infliction of
emotional distress.
       {¶ 12} With respect to plaintiff’s property claim, while it is true that plaintiff cannot
pursue a claim for property that he has no right to possess, plaintiff states in his
complaint that he had “$135.00 of his property stolen.” It is unclear whether plaintiff is
referring to $135 in cash, which is considered contraband, or other personal property
worth $135.
       {¶ 13} Regarding plaintiff’s allegation that Page authored a false conduct report
against him, the court finds that plaintiff has not alleged sufficient facts to be in
compliance with the court’s January 18, 2011 order. Specifically, plaintiff did not identify
either the date on which the report was authored or to whom it was directed and he did
not specify when it was published.
       {¶ 14} Based upon the foregoing, defendant’s motion shall be granted to the
extent that plaintiff’s retaliation claim, harassment claim, and claim based upon
defendant’s decision with respect to his cell assignments shall be dismissed. Plaintiff’s
defamation claim shall be dismissed without prejudice pursuant to Civ.R. 41(B)(1) for
failure to follow the court’s orders.
       {¶ 15} Plaintiff’s only remaining claim is based upon the loss of “$135 of his
property.” R.C. 2743.10 provides, in part, that “[c]ivil actions against the state for two
thousand five hundred dollars or less shall be determined administratively by the clerk
of the court of claims * * *.”      Inasmuch as plaintiff’s claim is for $135, it shall be
transferred to the administrative docket where it shall be processed pursuant to R.C.
2743.10(A).




                                               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




MAURICE REID

      Plaintiff

      v.

DEPARTMENT OF REHABILITATION AND CORRECTION
         Defendant
         Case No. 2010-12265-AD

Judge Alan C. Travis
Magistrate Matthew C. Rambo

ENTRY OF PARTIAL DISMISSAL AND TRANSFERRING CASE TO
ADMINISTRATIVE DOCKET




         For the reasons set forth in the decision filed concurrently herewith, defendant’s
motion to dismiss is GRANTED to the extent that plaintiff’s retaliation claim, harassment
claim, and claim based upon defendant’s decision with respect to his cell assignments
are DISMISSED. Plaintiff’s defamation claim is DISMISSED without prejudice pursuant
to Civ.R. 41(B)(1) for failure to follow the court’s order.
         Inasmuch as plaintiff’s remaining property claim is for $135, it is hereby
TRANSFERRED to the administrative docket where it shall be processed pursuant to
R.C. 2743.10(A).



                                                       _____________________________________
                                                       ALAN C. TRAVIS
                                                       Judge

cc:


Amy S. Brown                                             Maurice Reid, #538-099
Assistant Attorney General                               P.O. Box 788
150 East Gay Street, 18th Floor                          1150 North Main Street
Columbus, Ohio 43215-3130                                Mansfield, Ohio 44901

MR/cmd
Filed March 31, 2011/To S.C. reporter April 12, 2011
