[Cite as Sudberry v. S. Ohio Corr. Facility, 2011-Ohio-7018.]




                                                         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. 2011-04452-AD

Deputy Clerk Daniel R. Borchert



                                      MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, James Sudberry, an inmate incarcerated at defendant’s Southern
Ohio Correctional Facility (SOCF), asserted he was denied recreation privileges from
December 2010 through March 2011 allegedly because Corrections Officer (CO)
Barney determined plaintiff’s nails were too long. Plaintiff opined that in actuality, the
CO retaliated against him for filing a lawsuit against the CO for “police brutality.”
Plaintiff added that recreation was supposed to be rotated inside or outside every other
day but that his block endured an disproportionate amount of recreation outdoors.
Finally plaintiff complained about the manner in which the COs determined if an inmate
was refusing recreation. On June 3, June 7, and August 9, 2011, plaintiff filed additional
documentation in support of his allegations.
        {¶ 2} Consequently, plaintiff filed this complaint seeking to recover $2,500.00,
as compensation for “physiological & social suffering & physical suffering” due to the
lack of exercise. Payment of the filing fee was waived.
       {¶ 3} Defendant denied liability and contended that the process in place for
inmates like plaintiff with a maximum security classification is clearly an administrative
function within the discretion of prison authorities. Further, defendant advised that the
Court of Claims does not have jurisdiction to determine “a constitutional claim based on
the conditions of confinement.”
       {¶ 4} Plaintiff filed a response suggesting that he has been targeted by
defendant’s employees for discriminatory and retaliatory reasons and asserting that the
COs routinely violate the administrative rules and regulations.
                                    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 defendant’s
employees somehow violated internal prison regulations and the Ohio Administrative
Code, he fails to state a claim for relief.
       {¶ 6} 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.
       {¶ 7} 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 employee performed for his own personal purposes. Thus,
following the rationale of Szydlowski, supra, plaintiff would not have a cause of action
against defendant for CO Barney’s actions.
       {¶ 8} To the extent that plaintiff alleges claims based upon retaliation, action
against the state under Section 1983, Title 42, U.S. Code may not be brought in the
Court of Claims because the state is not a “person” within the meaning of Section 1983.
See, e.g., Jett v. Dallas Indep. School Dist. (1989), 491 U.S. 701, 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; White v. Chillicothe Correctional Institution (Dec. 29, 1992),
Franklin App. No. 92-AP-1229. Indeed, claims of retaliation are to be treated as an
action for alleged violations of constitutional rights under Section 1983, Title 42, U.S.
Code. Thus, this court is without jurisdiction to hear those claims.
       {¶ 9} 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. 2011-04452-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
