[Cite as Sudberry v. S. Ohio Corr. Facility, 2011-Ohio-7017.]




                                                         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 D. SUDBERRY

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

Case No. 2011-04444-AD

Deputy Clerk Daniel R. Borchert


                                      MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, James Sudberry, an inmate incarcerated at defendant, Southern
Ohio Correctional Facility (SOCF), stated that an unidentified corrections officer (CO)
opened a window in front of plaintiff’s cell with “the specific purpose to freeze me out &
make me suffer in the cold in my cell in January winter of 2011.” Plaintiff pointed out
that he complained to SOCF staff, specifically Captain Bell, who saw the open window
but did not intervene and close the window. On June 7 and August 9, 2011, plaintiff
filed additional documents in support of his allegations.
        {¶ 2} Plaintiff contended that defendant owed him a duty to maintain the
housing units from exposure to extreme temperatures. Plaintiff further contended that
defendant breached that duty when the CO left the window open all day in January.
Consequently, plaintiff filed this complaint seeking to recover $2,500.00 in damages for
“freezing cold & suffering for 1 day.” Payment of the $25.00 filing fee was waived.
        {¶ 3} Defendant requested that plaintiff’s claim be dismissed due to this court
lacking subject matter jurisdiction over constitutional claims.         In the alternative,
defendant denied liability and noted plaintiff failed to prove that a window was left open
or that he suffered personal injury as the result of being exposed to cold air.
       {¶ 4} Plaintiff filed a response essentially reiterating the allegations of the
complaint and contending that defendant failed to fully investigate his claim by
interviewing his two named witnesses. Plaintiff also asserted that defendant’s
employees regularly violate internal policies and abuse their power in order to harass
inmates.
                                    CONCLUSIONS OF LAW
       {¶ 5} Prison regulations, including those contained in the Ohio Administrative
Code, “are primarily designed to guide correctional officials in prison administration
rather than to confer rights on inmates. State ex rel. Larkins v. Wilkinson, 79 Ohio St.
3d 477, 479, 1997-Ohio-139, 683 N.E. 2d 1139, citing Sandin v. Conner (1995), 515
U.S. 472, 481-482, 115 S. Ct. 2293, 132 L. Ed. 2d 418. Additionally, this court has held
that “even if defendant had violated the Ohio Administrative Code, no cause of action
would exist in this court. A breach of internal regulations in itself does not constitute
negligence.” Williams v. Ohio Dept. of Rehab. and Corr. (1993), 67 Ohio Misc. 2d 1, 3,
643 N.E. 2d 1182. Accordingly, to the extent that plaintiff alleges that SOCF somehow
violated internal prison regulations and the Ohio Administrative Code, he fails to state a
claim for relief.
       {¶ 6} The court construes plaintiff’s claim of exposure to extremely cold
temperatures to be essentially a claim based upon the conditions of his confinement.
Inmate complaints regarding the conditions of confinement are treated as claims arising
under 42 U.S.C. 1983. State ex rel. Carter v. Schotten, 70 Ohio St. 3d 89, 91, 1994-
Ohio-37, 637 N.E. 2d 306. Such claims may not be brought against the state in the
Court of Claims because the state is not a “person” within the meaning of Section 1983.
       {¶ 7} Any claim made as a deprivation of constitutional rights is not cognizable
in this court.      This court lacks subject matter jurisdiction over alleged violations of
constitution rights and alleged violations under Section 1983, Title 42, U.S. Code. See
e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 704, 109 S. Ct. 2702, 105 L. Ed.
2d 598; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App. 3d 170, 528
N.E. 2d 607; Gersper v. Ohio Dept. of Hwy. Safety (1994), 95 Ohio App. 3d 1, 641 N.E.
2d 1113. Any constitutional violation claim or claim of federal civil rights violation is not
cognizable. See Howard v. Supreme Court of Ohio, Franklin App. No. 04AP-1093,
2005-Ohio-2130; Wright v. Dept. of Rehab. & Corr. (Mar. 28, 1995), Franklin App. No.
94AP108-1169.
       {¶ 8} Concomitantly, any claims involving retaliatory conduct are not cognizable
in this court. In Deavors v. Ohio Dept. of Rehab. and Corr. (May 20, 1999), Franklin
App. No. 98AP-1105, the court held that an inmate’s claim regarding retaliatory conduct
are properly classified as constitutional claims under Section 1983, Title 42, U.S. Code.
       {¶ 9} Furthermore, to the extent plaintiff asserts a claim of deliberate
indifference, such claim is hereby construed as a constitutional claim. 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.
       {¶ 10} The Supreme Court of Ohio has established that an employer is liable for
the tortious conduct of its employee only if the conduct is committed within the scope of
employment and if the tort is intentional, the conduct giving rise to the tort must facilitate
or promote the business of which the employee was engaged. Byrd v. Faber (1991), 57
Ohio St. 3d 56, 565 N.E. 2d 584, citing Little Miami RR. Co. v. Wetmore (1869), 19 Ohio
St. 110, and Taylor v. Doctors Hosp. (1985), 21 Ohio App. 3d 154, 21 OBR 165, 486
N.E. 2d 1249.
       {¶ 11} Further, an intentional and willful tort committed by an employee for his
own purposes constitutes a departure from the employment, so that the employer is not
responsible. Szydlowski v. Ohio Dept. of Rehab. & Corr. (1992), 79 Ohio App. 3d 303,
607 N.E. 2d 103, citing Vrabel v. Acri (1952), 156 Ohio St. 467, 46 O.O. 387, 103 N.E.
2d 564. The facts of this case, if taken as true, would constitute an intentional tort
committed by defendant’s employees performed for their own personal business
purposes. Thus, following the rationale of Szydlowski, plaintiff would not have a cause
of action against defendant for intentionally depriving him of warmth or adequate heat
during the winter months.
      {¶ 12} Based upon the foregoing, the court finds that plaintiff has failed to state a
claim upon which relief can be granted. Accordingly, judgment shall be rendered in
favor of defendant.
                                                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 D. SUDBERRY

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

Case No. 2011-04444-AD

Deputy Clerk Daniel R. Borchert


                         ENTRY OF ADMINISTRATIVE DETERMINATION

         Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.

                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:
James D. Sudberry, #402-190                       Gregory C. Trout, Chief Counsel
P.O. Box 45699                                    Department of Rehabilitation
Lucasville, Ohio 45699                            and Correction
                                                  770 West Broad Street
                                                  Columbus, Ohio 43222
10/20
Filed 10/25/11
Sent to S.C. reporter 3/13/12
