[Cite as Wolfe v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-1776.]

                                                        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




RONALD WOLFE

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2007-08902

Judge Alan C. Travis
Magistrate Steven A. Larson

JUDGMENT ENTRY




        {¶ 1} On December 10, 2009, the magistrate issued a decision recommending
judgment for defendant.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).”
        {¶ 3} On February 5, 2010, plaintiff filed his objections and a motion for an
extension of time to file an affidavit of evidence pursuant to Civ.R. 53(3)(b)(iii).1 On April
9, 2010, plaintiff filed an affidavit of evidence.
        {¶ 4} Civ.R. 53(D)(3)(b)(iii) provides, in part:
        {¶ 5} “An objection to a factual finding, whether or not specifically designated as
a finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the


        1
         Defendant’s February 9, 2010 motion to stay proceedings in this case pursuant to L.C.C.R.
15(C) is DENIED.
Case No. 2007-08902                          -2-                       JUDGMENT ENTRY

evidence submitted to the magistrate relevant to that finding or an affidavit of that
evidence if a transcript is not available.” (Emphasis added.)
       {¶ 6} Furthermore, Civ.R. 53 “does not provide the objecting party with an
option to file either a transcript or an affidavit. An affidavit may be employed only
where a transcript of the proceedings is not available. A transcript is not unavailable
merely because the original stenographic notes have not been transcribed or because a
party elects not to order a transcript of the proceedings. Where a transcript can be
produced, the transcript is available and must be provided to the trial court in support of
objections to a magistrate’s decision.” Gladden v. Grafton Correctional Inst., Franklin
App. No. 05AP-567, 2005-Ohio-6476.
       {¶ 7} Plaintiff does not allege that a transcript of proceedings in this case is
“unavailable” other than he cannot afford to pay for it. Accordingly, plaintiff’s motion for
an extension of time to file an affidavit of evidence is DENIED and the affidavit filed on
April 9, 2010, is STRICKEN from the record.
       {¶ 8} Plaintiff asserts that the magistrate erred in his factual findings with regard
to plaintiff’s physical condition and credibility of witnesses. However, those objections
are not supported by a transcript of the relevant evidence as required by Civ.R. 53 and
are therefore OVERRULED.
       {¶ 9} Plaintiff also asserts that the magistrate’s decision is contrary to law with
regard to the applicability of the Americans with Disabilities Act (ADA) and plaintiff’s
entitlement to an accommodation thereunder.
       {¶ 10} Title II of the ADA is contained in 42 U.S.C. 12132 and states that “no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” The Supreme Court of the
United States has held that “state prisons fall squarely within Title II’s statutory definition
Case No. 2007-08902                            -3-                   JUDGMENT ENTRY

of ‘public entity,’ which includes ‘any * * * instrumentality of a State * * * or local
government.’”    Pennsylvania Dept. of Corrections v. Yeskey (1998), 524 U.S. 206,
syllabus, quoting 42 U.S.C. 1213(1)(B).
       {¶ 11} Plaintiff claims that defendant required him to work in the Belmont
Correctional Institution and did not provide him an unspecified “accommodation” as
required by the ADA. While the ADA applies generally to state correctional institutions,2
“it is well-established that ordinary prison labor performed by an inmate in a state
correctional institution facility is not predicated upon an employer-employee relationship
and thus does not fall within the scope of worker-protection statutes.” McElfresh v. Ohio
Dept. of Rehab. & Corr., Franklin App. No. 04AP-177, 2004-Ohio-5545, ¶14, citing
Moore v. Ohio Dept. of Rehab. & Corr. (1993), 89 Ohio App.3d 107, 111. Therefore,
plaintiff is not entitled to an ADA accommodation in the context of his institutional work
assignment. Accordingly, the court finds that the magistrate correctly applied the law
and plaintiff’s objections are thus OVERRULED.
       {¶ 12} Upon review of the record, the magistrate’s decision and the objections,
the court finds that the magistrate has properly determined the factual issues and
appropriately applied the law. Therefore, the objections are OVERRULED and the court
adopts the magistrate’s decision and recommendation as its own, including findings of
fact and conclusions of law contained therein.         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:

       2
       See Pennsylvania Dept. of Corrections, supra.
Case No. 2007-08902                                    -4-                     JUDGMENT ENTRY



Douglas R. Folkert                                        Richard F. Swope
Assistant Attorney General                                6408 East Main Street, Suite 102
150 East Gay Street, 18th Floor                           Reynoldsburg, Ohio 43068
Columbus, Ohio 43215-3130

MR/cmd/Filed April 16, 2010/To S.C. reporter April 21, 2010
