[Cite as Cotten v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-2619.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Prince Charles Cotten, Sr.,                          :

                 Plaintiff-Appellant,                :
                                                                          No. 13AP-935
v.                                                   :                 (Ct.Cl. No. 2013-00060)

Ohio Department of Rehabilitation and                :              (ACCELERATED CALENDAR)
Correction,
                                                     :
                 Defendant-Appellee.
                                                     :


                                         D E C I S I O N

                                      Rendered on June 17, 2014


                 Prince Charles Cotten, Sr., pro se.

                 Michael DeWine, Attorney General, Christopher L. Bagi, for
                 appellee.

                             APPEAL from the Court of Claims of Ohio

DORRIAN, J.
       {¶ 1}     Plaintiff-appellant, Prince Charles Cotten, Sr. ("appellant"), appeals from a
judgment of the Court of Claims of Ohio dismissing his complaint asserting claims against
defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC"). For the
reasons that follow, we affirm.
       {¶ 2}     Appellant, a prisoner in the custody of ODRC, filed this action, naming
ODRC as a defendant. He alleged that ODRC employees had engaged in a conspiracy to
prevent him from mailing items and receiving mailed items sent to him in prison, both
through institutional mail and the United States mail. He claimed that prison officials had
refused to process his mail by, for example, covering the names and addresses shown on
mail items, destroying mail items, and returning mail items to him as lacking sufficient
postage or as being otherwise noncompliant with federal mailing requirements. Appellant
No. 13AP-935                                                                                    2

further alleged that prison officials had retaliated against him after he complained about
the alleged interference with his mail and had failed to conduct an investigation
concerning his complaints. Appellant sought an award of damages, declaratory judgment,
and equitable relief, based on what he described as state law claims "incorporated with a
42 U.S.C.A. § 1983 [claim]." (Complaint, 5-6.) He alleged that he had been damaged due
to "violation of [his] State, Statutory, and his Federal Constitutional Rights, Tampering
with the United States Mail, Interfering with Civil Rights, Dereliction of Duty, Delaying
and Destroying [his] United States mail to the governor, federal agency and United States
Marshal." (Complaint, 6.) He also claimed that prison officials had engaged in theft in
office by removing postage stamps from his outgoing mail.
       {¶ 3}   The ODRC filed its motion to dismiss appellant's complaint pursuant to
Civ.R. 12(B)(1) and (6). Civ.R. 12(B)(1) authorizes dismissal of a complaint for lack of
subject-matter jurisdiction when the plaintiff fails to allege "any cause of action cognizable
by the forum." Guillory v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 97AP-861, 2008-
Ohio-2299, ¶ 6, citing Milhoan v. E. Loc. School Dist. Bd. of Edn., 157 Ohio App.3d 716,
2004-Ohio-3243 (4th Dist.), ¶ 10. Civ.R. 12(B)(6) authorizes dismissal of a complaint
when the plaintiff fails to state a claim, i.e., where it "appears, beyond doubt, that the
plaintiff can prove no set of facts entitling him to relief." Id. at ¶ 7, citing Celeste v. Wiseco
Piston, 151 Ohio App.3d 554, 2003-Ohio-703, ¶ 12 (11th Dist.). "Dismissal for failure to
state a claim is proper if, after all factual allegations are presumed to be true and all
reasonable inferences are made in favor of the non-moving party, it appears beyond doubt
from the complaint that the plaintiff could prove no set of facts warranting the requested
relief." Clemons v. Ohio Bur. of Workers' Comp., 10th Dist. No. 13AP-691, 2014-Ohio-
1259, ¶ 6. We conduct a de novo review of both Civ.R. 12(B)(1) and (6) dismissals.
Guillory at ¶ 6-7.
       {¶ 4}   The Court of Claims dismissed the complaint using the following reasoning:
(1) the Court of Claims lacks subject-matter jurisdiction over claims arising under 42
U.S.C. 1983 ("§ 1983"); (2) appellant's claims regarding the processing of his mail are
claims relating to an inmate's conditions of confinement; and (3) claims alleging violations
of conditions of confinement by inmates have been treated as claims arising under § 1983.
The court further found that allegations that prison officials may have violated U.S. postal
No. 13AP-935                                                                                3

regulations do not state claims over which the Court of Claims has jurisdiction, citing
Guillory at ¶ 14 (Court of Claims does not have subject-matter jurisdiction to adjudicate
alleged criminal offenses.).
       {¶ 5}    Appellant's three assignments of error state as follows:
                [1.] THE JUDGE WAS BIAS AND THE PLAINTIFF WAS
                PREJUDICE. WHEN THE JUDGE FAIL TO DETERMINE
                INITIALLY WHETHER THE STATE OFFICIALS WERE
                ENTITLED TO PERSONAL IMMUNITY. WHEN THE
                STATE FAIL TO RESPOND TO PLAINTIFF'S PRE-TRIAL
                SETTLEMENT REQUEST.

                [2.] THE JUDGE WAS IN ERROR AND THE PLAINTIFF
                WAS PREJUDICE. WHEN THE JUDGE FAIL TO DETER-
                MINE INITIALLY WHETHER THE COURT OF COMMON
                PLEAS' HAD JURISDICTION OVER PLAINTIFF'S STATE
                LAW CLAIMS.

                [3.] THE JUDGE WAS DISCRIMINATING AND THE
                PLAINTIFF WAS PREJUDICE.      WHEN THE JUDGE
                ACKNOWLEDGE AND/OR CONCEDED THAT PLAIN-
                TIFF'S CLAIMS LIES IN THE FEDERAL COURT, BUT,
                FAIL TO MENTION! PLAINTIFF'S STATE LAW CLAIMS IN
                THIS COURT IN THE INSTANT CASE IN CHIEF.

(Sic passim.)
       {¶ 6} In view of appellant's arguments in support of these assignments of error, as
presented in his brief, we construe these assignments of error as asserting that the trial
court erred: (1) in failing to determine whether the state or its employees were entitled to
immunity; (2) in failing to determine whether the court of common pleas had jurisdiction
over his "state law claims"; and (3) in failing to address his "state law claims."
       {¶ 7} We turn to appellant's second and third assignments of error, as they are
substantively related and relevant to our analysis of appellant's first assignment of error.
Appellant has not challenged the trial court's conclusion that the Court of Claims lacks
jurisdiction to adjudicate his claims to the extent they assert violations of § 1983. In his
second and third assignments of error, however, appellant argues the Court of Claims
erred in failing to recognize that his complaint stated state law claims, as well as a federal
§ 1983 claim. We disagree.
No. 13AP-935                                                                                 4

       {¶ 8} The trial court observed that "it is difficult to determine the basis for the
cause(s) of action plaintiff is trying to assert." (Oct. 4, 2013 Entry.) We agree with this
observation and, having reviewed the record before the Court of Claims, conclude that
appellant did not expressly identify any state law theory of recovery in his filings in the
Court of Claims. Rather, he simply asserted generally that he had state law claims. In his
reply brief in this court, however, appellant suggests that his complaint stated state law
claims of intentional infliction of emotional distress and invasion of privacy. In this de
novo review, we therefore consider the question of whether appellant stated a state law
claim of tortious intentional infliction of emotional distress or tortious invasion of privacy.
      {¶ 9}   The elements of the common law tort of intentional infliction of emotional
distress have previously been summarized by this court, as follows:
              To prevail on [a] claim for [intentional infliction of emotional
              distress], a plaintiff must prove the following four elements:
              (1) that the actor either intended to cause emotional distress
              or knew or should have known that actions taken would result
              in serious emotional distress to plaintiff; (2) that the actor's
              conduct was so extreme and outrageous as to go "beyond all
              possible bounds of decency" and was such that it can be
              considered as "utterly intolerable in a civilized community";
              (3) that the actor's actions were the proximate cause of
              plaintiff's psychic injury; and (4) that the mental anguish
              suffered by plaintiff is serious and of a nature that "no
              reasonable man could be expected to endure it." Gudin v.
              Western Reserve Psychiatric Hosp. (June 14, 2001), Franklin
              App. No. 00AP–912, citing Pyle v. Pyle (1983), 11 Ohio
              App.3d 31, 34, 463 N.E.2d 98.

              The Supreme Court of Ohio has relied upon the definition of
              extreme and outrageous conduct found in the Restatement:

              "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. Liability has been found only where the conduct
              has been 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. Generally, the case is one in which the
              recitation of the facts to an average member of the
No. 13AP-935                                                                                  5

              community would arouse his resentment against the actor,
              and lead him to exclaim, 'Outrageous!' "

(Emphasis sic.) Roe ex rel. Roe v. Heap, 10th Dist. No. 03AP-586, 2004-Ohio-2504,
¶ 120-21, quoting Yeager v. Loc. Union 20, 6 Ohio St.3d 369, 374-75 (1983).
       {¶ 10} We have reviewed de novo appellant's allegations concerning the actions of
prison officials, presumed all of those allegations to be true, and made all reasonable
inferences in favor of appellant. Of the actions alleged, however, appellant does not allege
that they were so extreme and outrageous as to go "beyond all possible bonds of decency"
and were atrocious and utterly intolerable in a civilized community. Moreover, the
complaint fails to allege that appellant has suffered serious psychic injury or mental
anguish of a nature that "no reasonable man could be expected to endure it." We
therefore conclude that appellant has failed to state a state law claim of intentional
infliction of emotional distress as the facts he alleges, even if true, do not satisfy essential
elements of that tort.
       {¶ 11} We turn to the question of whether appellant stated a claim of invasion of
privacy. In Roe, this court reiterated the elements of the tort of invasion of privacy,
stating:
              In Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E.2d 340, the
              Supreme Court of Ohio first recognized the tort of invasion of
              privacy, and described the principle of the right of privacy in
              Ohio as follows:

              "1. The right of privacy is the right of a person to be let alone,
              to be free from unwarranted publicity, and to live without
              unwarranted interference by the public in matters with
              which the public is not necessarily concerned.

              "2. An actionable invasion of the right of privacy is the
              unwarranted appropriation or exploitation of one's
              personality, the publicizing of one's private affairs with
              which the public has no legitimate concern, or the wrongful
              intrusion into one's private activities in such a manner as to
              outrage or cause mental suffering, shame or humiliation to a
              person of ordinary sensibilities."

Roe at ¶ 50-51, quoting Housh v. Peth, 165 Ohio St. 35 (1956), syllabus.
No. 13AP-935                                                                                 6

       {¶ 12} Moreover, in 2007, the Supreme Court of Ohio recognized a fourth theory of
invasion of privacy, the "false light" theory. Dautartas v. Abbott Labs., 10th Dist. No.
11AP-706, 2012-Ohio-1709, ¶ 63, citing Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-
Ohio-2471, syllabus.
       {¶ 13} Of these four categories of the tort of invasion of the right of privacy, the
facts alleged by appellant could potentially support only the third category; i.e., that prison
officials intruded into appellant's private correspondence in such a manner as would cause
outrage, mental suffering, shame or humiliation to a person of ordinary sensibilities. This
category of invasion of privacy is sometimes called an "intrusion" tort as it involves
intrusion or prying into an individual's private affairs. None of the other three categories of
the tort apply in this case as appellant has not alleged that his personality was
appropriated or exploited by the prison officials identified in his complaint, nor alleged
that his private correspondence has been published to the "public at large, or to so many
persons that the matter must be regarded as substantially certain to become one of public
knowledge," nor alleged that he has been cast in a false light. Killea v. Sears, Roebuck &
Co., 27 Ohio App.3d 163, 166 (10th Dist.1985).
       {¶ 14} The intrusion category of invasion of privacy requires a finding of a
"wrongful intrusion into one's private activities in a manner that outrages or
causes mental suffering, shame, or humiliation to a person of ordinary sensibilities."
Peitsmeyer v. Jackson Twp. Bd. of Trustees, 10th Dist. No. 02AP-1174, 2003-Ohio-4302,
¶ 26. Appellant does not allege that mental suffering, if any, he allegedly suffered would
outrage a person of ordinary sensibilities. Accordingly, we conclude that appellant has
failed to state a state law tort claim of invasion of privacy. Compare Mushkat v.
Pickawillany Condominium Unit Owners' Assn., 10th Dist. No. 80AP-765 (Apr. 14, 1981)
(holding appropriate a dismissal of an invasion of privacy claim for failure to state a claim
where a reasonable person of ordinary sensibilities could not find the alleged
circumstances to be highly offensive and objectionable).
       {¶ 15} We therefore hold that appellant has failed to state a state law claim of
either intentional infliction of emotional distress or invasion of privacy. To the extent that
appellant characterizes his complaint as asserting such claims, it is appropriate that they
be dismissed pursuant to Civ.R. 12(B)(6).
No. 13AP-935                                                                               7

        {¶ 16} We next examine whether the trial court erred in granting ODRC 's Civ.R.
12(B)(1) motion for dismissal of appellant's complaint based on lack of subject-matter
jurisdiction.
        {¶ 17} In Guillory, an analogous case involving a complaint filed by an inmate, we
recognized that "[t]he mere fact that claims in a complaint are couched in certain legal
terms is insufficient to confer jurisdiction upon a court." Id. at ¶ 11. Rather, "in order to
resolve the issue of whether a court has subject-matter jurisdiction over a party's claims,
the court must look beyond the language used in the complaint and examine the
underlying nature of the claims." Id.
        {¶ 18} We observed in Guillory that it is "well established that the Court of Claims
lacks subject-matter jurisdiction over alleged violations of constitutional rights and claims
arising under Section 1983, Title 42, U.S. Code." Id. at ¶ 12. Accord Deavors v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 98AP-1105 (10th Dist.1999). In reviewing the
inmate's complaint in Guillory, we found that his claims were either: (1) constitutional
claims, i.e., cruel and unusual punishment and due process claims; (2) claims asserting
retaliation; or (3) claims based upon unlawful conditions of confinement.     We concluded
that:
                [A]n inmate's claims regarding retaliatory conduct are
                properly classified as constitutional claims actionable under
                § 1983, and thus, cannot be brought in the Court of Claims.
                Likewise, insofar as the above allegations may be viewed as
                relating to appellant's conditions of confinement, inmate
                complaints regarding the conditions of confinement are
                treated as claims arising under § 1983.
Id. at ¶ 13.
        {¶ 19} We further observed in Guillory that "the Court of Claims has no
jurisdiction over alleged criminal violations by ODRC's employees." Id. at ¶ 14. See also
Troutman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 03AP-1240, 2005-Ohio-334,
¶ 10 ("[T]he Court of Claims has no jurisdiction over alleged criminal violations by the
ODRC or its employees."). Rejecting Guillory's argument that he had stated a state law tort
claim sounding in negligence, we concluded that he had failed to state any other state law
claim, and we affirmed the Court of Claims' dismissal of Guillory's complaint for lack of
subject-matter jurisdiction.
No. 13AP-935                                                                                               8

       {¶ 20} Similarly, in the case now before us, appellant has asserted claims of alleged
violations of rights guaranteed him by the United States Constitution1; retaliatory conduct;
and claims based on the conditions of confinement, i.e., implementation of prison
regulations concerning inmate mail. These claims are, in essence, § 1983 claims, and the
Court of Claims lacks subject-matter jurisdiction to adjudicate them.
        {¶ 21} Moreover, appellant's constitutional claims and claims relative to the
conditions of his confinement, including his claim of retaliation, are not cognizable in the
Court of Claims. Nor are claims asserting that prison officials violated criminal statutes
relative to use of the mails within the jurisdiction of the Court of Claims. Id. The court
correctly found that it lacked subject-matter jurisdiction of those claims, and it was
appropriate for the trial court to dismiss them pursuant to Civ.R. 12(B)(1).
        {¶ 22} We therefore overrule appellant's second and third assignments of error.
        {¶ 23} In his first assignment of error, appellant argues that the Court of Claims
erred in failing to determine whether the actions of the state officials he identifies were
malicious, wanton or reckless making them ineligible for the immunity provided by R.C.
9.86 to state employees acting within the scope of their employment. Appellant argues
that the court should have determined that the state officials he described were not
entitled to immunity. However, "pursuant to the language of R.C. 9.86, the Court of
Claims has the authority to decide immunity questions only in causes of action arising
under state law." Gumpl v. Bost, 81 Ohio App.3d 370, 343 (12th Dist.1992). Based on our
conclusion that the complaint states only § 1983 claims as discussed above relative to
appellant's second and third assignments of error, we overrule appellant's first
assignment of error.
       {¶ 24} Having overruled all three of appellant's assignments of error, we affirm the
judgment of the Court of Claims.
                                                                                    Judgment affirmed.
                                     KLATT and O'GRADY, JJ., concur.
                                        ____________________




1In his brief, appellant suggests that he was deprived of his "Fundamental and Substantive Liberty Interes[t]
in Uncensored Legal Mail," (Appellant's Brief at 5, citing, e.g., Turner v. Safley, 482 U.S. 78, 84 (1987).)
