[Cite as Ferguson v. Ohio State Hwy. Patrol, 2010-Ohio-5691.]

                                                       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




ANGEL FERGUSON

       Plaintiff

       v.

OHIO STATE HIGHWAY PATROL

       Defendant
       Case No. 2009-09361

Judge Alan C. Travis

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT




        {¶ 1} On August 2, 2010, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not file a response. On October 7, 2010, the court
conducted an oral hearing on the motion pursuant to L.C.C.R. 4; however, plaintiff failed
to appear for the hearing.
        {¶ 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
Case No. 2009-09361                          -2-                                  ENTRY

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} According to the complaint, employees of defendant searched plaintiff’s
residence and seized four computers, a roll of photographic film and paperwork, and
then turned these items over to the Federal Bureau of Investigation. Plaintiff states that
the computers were later returned, but that operating systems and other programs were
removed and that one or more of the computers now “runs slow.” Plaintiff further states
that the film and paperwork are “missing.” The complaint identifies neither a cause of
action, nor the desired relief.
       {¶ 5} Defendant asserts that it lawfully seized the property at issue pursuant to
a search warrant and that it exercised reasonable care while in possession of such
property.
       {¶ 6} Under Ohio law, the seizure of property pursuant to a search warrant is
authorized by R.C. 2933.21 and Crim.R. 41. R.C. 2981.11(A)(1), which governs the
disposition of lawfully seized property, provides:
       {¶ 7} “Any property that has been * * * seized pursuant to a search warrant * * *
and that is in the custody of a law enforcement agency shall be kept safely by the
agency, pending the time it no longer is needed as evidence or for another lawful
purpose, and shall be disposed of pursuant to sections 2981.12 and 2981.13 of the
Revised Code.”
       {¶ 8} In support of its motion, defendant submitted the affidavit of Sergeant
Patrick     McDonald,      an     employee      in    defendant’s   Office   of   Special
Operations/Investigations, who states, in part:
       {¶ 9} “4.    On March 28, 2008, I oversaw and participated in the execution of a
valid search warrant at the premises located at 341 C. Waddell Road, McDermott, Ohio,
a location believed to be the residence of [plaintiff].
Case No. 2009-09361                          -3-                                     ENTRY

        {¶ 10} “5.    I have reviewed the Complaint filed in the action Angel Ferguson v.
Ohio State Highway Patrol, Ohio Court of Claims Case No. 2009-09361. The items
listed in the Complaint were seized from said location pursuant to the execution of the
valid search warrant.
        {¶ 11} “6.    The [defendant’s] search of said premises and treatment of the items
seized following the search were appropriate and in compliance with [defendant’s]
policies/procedures.
        {¶ 12} “7.    The [defendant] exercised due care during all times it had possession
of [plaintiff’s] items.”
        {¶ 13} As stated above, plaintiff did not file a response to defendant’s motion, nor
did she provide the court with any affidavit or other permissible evidence to support her
allegations. Civ.R. 56(E) states, in part, as follows:
        {¶ 14} “When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials
of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.”
        {¶ 15} “While there is no ‘default’ summary judgment, where a motion for
summary judgment is properly made and supported as required by the rule and the
motion demonstrates that the moving party is entitled to judgment as a matter of law,
the opposing party must respond. The failure of the opposing party to respond with
evidence of the type required by the rule leaves the trial court with no other choice but
to grant the motion.” Cook v. Wilson, 165 Ohio App.3d 202, 2006-Ohio-234, ¶23.
        {¶ 16} Based upon the uncontested affidavit testimony of McDonald, reasonable
minds can only conclude that defendant seized the property at issue pursuant to a valid
search warrant and that defendant did not commit a breach of any duty, including any
duty arising under R.C. 2981.11(A)(1), with respect to such property.
Case No. 2009-09361                          -4-                                   ENTRY

          {¶ 17} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. 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.



                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge
cc:


Emily M. Simmons                               Angel Ferguson
Velda K. Hofacker                              341 C Waddell Road
Assistant Attorneys General                    McDermott, Ohio 45652
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

RCV/cmd
Filed October 27, 2010
To S.C. reporter November 18, 2010
