[Cite as Martin v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-1124.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

William E. Martin,                                  :

                Plaintiff-Appellant,                :

v.                                                  :                       No. 16AP-585
                                                                        (Ct. of Cl. No. 2016-307)
Ohio Department of Rehabilitation and               :
Correction,                                                         (ACCELERATED CALENDAR)
                                                    :
                Defendant-Appellee.
                                                    :


                                         D E C I S I O N

                                     Rendered on March 28, 2017


                On brief: William E. Martin, pro se.

                On brief: Michael DeWine, Attorney                     General,    and
                Christopher P. Conomy, for appellee.

                             APPEAL from the Court of Claims of Ohio

TYACK, P.J.

        {¶ 1} William E. Martin is appealing from the dismissal of his lawsuit in the Court
of Claims of Ohio. For the following reasons, we affirm in part and reverse in part the
judgment of the trial court. Martin assigns three errors for our consideration:
                [I.] THE COURT ERRED WHEN IT DISMISSED
                APPELLANT'S AMENDED COMPLAINT WITHOUT
                AFFORDING HIM AN OPPORTUNITY TO COMPLETE HIS
                REQUESTED DISCOVERY.

                [II.] THE COURT ERRED WHEN IT DISREGARDED
                APPELLANT'S PERSONAL INJURY CLAIM AND
                DISMISSED APPELLANT'S AMENDED COMPLAINT.
No. 16AP-585                                                                                2


               [III.] THE COURT ERRED WHEN IT DISREGARDED
               APPELLANT'S    CONSTITUTIONAL   CLAIMS   AND
               DISMISSED APPELLANT'S AMENDED COMPLAINT.

       {¶ 2} Martin sued the Ohio Department of Rehabilitation and Correction
("ODRC") on April 11, 2016. He amended his complaint on May 4, 2016. Counsel for
ODRC filed a motion to dismiss the amended complaint on May 10, 2016. The motion to
dismiss pursuant to Civ.R. 12(B)(1) and (B)(6) was sustained on July 19, 2016 leading to
this appeal.
       {¶ 3} Martin claims he was assaulted by another inmate while both were
incarcerated at Allen Correctional Institution ("ACI"). Martin claims ODRC is liable for
his injuries because ODRC did not take adequate precautions to protect Martin and other
inmates. One of the precautions not taken was the elimination of a putt putt golf course at
ACI because the putters could be used as deadly weapons. Golf clubs were used to assault
Martin leading to numerous injuries to Martin's face, eye, ear, and left maxillary sinus
region.
       {¶ 4} Dismissal of a claim pursuant to Civ.R. 12(B)(6) or (B)(1) is appropriate only
where it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. York v. Ohio State Highway Patrol, 60 Ohio
St.3d 143, 144 (1991); Lin v. Gatehouse Constr. Co. 84 Ohio App.3d 96, 99 (8th
Dist.1992). A court must presume all factual allegations contained in the complaint to be
true and make all reasonable inferences in favor of the non-moving party. Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). "In resolving a Civ.R. 12(B)(6) motion
to dismiss, the trial court may consider only the statements and facts contained in the
pleadings, and may not consider or rely on evidence outside the complaint." Powell v.
Vorys, 131 Ohio App.3d 681, 684 (10th Dist.1998). As an appellate court, we must
independently review the complaint to determine if dismissal was appropriate. McGlone
v. Grimshaw, 86 Ohio App.3d 279, 285 (4th Dist.1993).
       {¶ 5} Martin included in his lawsuit a claim that he was transferred to another
prison as a result of the assault and that the transfer was a violation of due process of law.
The third assignment of error argues the Court of Claims should not have disregarded this
claim. It has been established that the Court of Claims lacks subject-matter jurisdiction
No. 16AP-585                                                                                3


over alleged violations of constitutional rights and claims arising under 42 U.S.C. 1983.
Bleicher v. Univ. of Cincinnati College of Med., 78 Ohio App.3d 302, 306 (10th
Dist.1992). The Court of Claims was correct to dismiss this claim because the jurisdiction
of the Court of Claims is limited and does not include the right to adjudicate claims based
upon provisions of the Ohio and United States Constitutions.
       {¶ 6} The third assignment of error is overruled.
       {¶ 7} The first assignment of error alleges that the Court of Claims erred in
dismissing Martin's claim without affording him an opportunity to complete his requested
discovery. A request for discovery does not hinder a dismissal under Civ.R. 12(B)(6) as a
court is required to only examine the complaint. "[T]he trial court may consider only the
statements and facts contained in the pleadings, and may not consider or rely on evidence
outside the complaint." Powell at 684. If the trial court considers evidence outside of the
complaint, then a motion to dismiss under Civ.R. 12(B)(6) should be converted to a
motion for summary judgment and disposed of as provided in Civ.R. 52, and all parties
given reasonable opportunity to present all materials made pertinent by such a motion.
Civ.R. 12(B); Walker v. Nationwide Mut. Ins. Co., 10th Dist. No. 15AP-520, 2015-Ohio-
5371. ODRC's motion to dismiss was not affected by Martin's request for discovery.
       {¶ 8} The first assignment of error is overruled.
       {¶ 9} Because Ohio is a notice pleading state, a plaintiff is not required to plead all
of the elements of a cause of action. A complaint need only contain "a short and plain
statement of the claim showing that the party is entitled to relief, and a demand for
judgment for the relief to which the party claims to be entitled."              Civ.R. 8(A).
Consequently, "as 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).
       {¶ 10} Here, appellant's complaint alleges that appellee breached its duty to
appellant and that the breach caused him physical injury entitling him to damages.
Appellant is not required to plead all the elements necessary to prove a breach of the
state's custodial duties owed to him as an inmate. Therefore, appellant was not required
to plead actual or constructive notice of an impending attack against appellant by another
inmate.
No. 16AP-585                                                                              4


      {¶ 11} Nevertheless, appellant did plead facts that suggested the state had at least
constructive knowledge of an impending attack against appellant. Appellant alleged that
the state was aware that golf putters could be used as weapons by inmates and that prison
officials gave the attacker information about appellant (that he was a snitch), which
motivated the attack.
      {¶ 12} The second assignment of error is sustained.
      {¶ 13} In summary, the second assignment of error is sustained and the first and
third assignments of error are overruled. The judgment of the Court of Claims of Ohio is
affirmed in part and reversed in part and the case is remanded for further proceedings.
                                            Judgment affirmed in part, reversed in part;
                                                    remanded for further proceedings.

                              KLATT and BRUNNER, JJ., concur.
