REPORT AND RECOMMENDATION
KAREN L. LITKOVITZ, Magistrate Judge.
This matter is before the Court pursuant to the Court's March 13, 2013 Order to Show Cause (Doc. 52), plaintiffs motion to dismiss pursuant to Fed.R.Civ.P. 41(a)(2) filed in response to the Show Cause Order (Doc. 53), and defendants' memorandum in response to plaintiffs motion to dismiss. (Doc. 54).
Plaintiff, a former inmate at the Lebanon Correctional Institution (LeCI), filed this action prose against LeCI correctional officers under 42 U.S.C. § 1983 alleging that defendants physically and sexually assaulted him and took personal property from him while he was incarcerated. (Doc. 4). On September 14, 2012, the Court sua sponte dismissed plaintiffs claim regarding the loss ofhis personal property but determined that plaintiffs Eighth Amendment claim could proceed. (Doc. 24). Subsequently, plaintiff filed a complaint in the Ohio Court of Claims arising out of the same incident giving rise to this federal action. See Adams v. Ohio Dept. of Rehab. and Corrs., Case No. 2013-00140 (Ohio Court of Claims).
Counsel entered an appearance on behalf of plaintiff in this lawsuit on February 21, 2013. (Doc. 48). Shortly thereafter, the Court discovered that plaintiff had filed an action in the Court of Claims when plaintiff filed a motion to mail certified copies of pleadings from this action to the Court of Claims Clerk's Office. (Doc. 50). Upon learning of the pending Court of Claims action, this Court ordered plaintiff to show cause why this case should not be dismissed pursuant to Leaman v. Ohio Dept. of Mental Retardation and Dev. Disabilities, 825 F.2d 946, 951-52 (6th Cir. 1987) (en banc), which holds that under Ohio Rev. Code § 2743.02(A)(1), filing a lawsuit in the Ohio Court of Claims results in a "complete waiver" of any federal cause of action arising out of the same act or omission. (Doc. 52).
In response to the Show Cause Order, plaintiff filed a motion to voluntarily dismiss this lawsuit pursuant to Fed.R.Civ.P. 41(a)(2) in lieu of the Court dismissing this case pursuant to the rule in Leaman. (Doc. 53). Defendants oppose plaintiffs motion to dismiss under Rule 41(a)(2) and argue that the Court should dismiss this action in its entirety pursuant to Leaman. (Doc. 54).
II. The complaint should be dismissed pursuant to Leaman.
Plaintiffs motion to dismiss pursuant to Rule 41(a)(2) should be denied and this action should be dismissed without prejudice pursuant to the rule in Leaman. Plaintiff has failed to address the applicability of Leaman to this case in response to the Show Cause Order issued on March 13, 2013. Plaintiff does not dispute that both the Court of Claims action and this lawsuit arise out of the same acts and omissions. As a result, plaintiff has waived the claims asserted in this federal action by filing an action in the Court of Claims. See Leaman, 825 F.2d at 951-52. See also Savage v. Gee, 665 F.3d 732, 738 (6th Cir. 2012) (holding that plaintiff waived his federal cause of action by previously filing the same claims in the Ohio Court of Claims); Wee Care Child Care Ctr., Inc. v. Ohio Dept. of Jobs and Family Servs., No. 2:08cv193, 2009 WL 187829, at *4 (S.D. Ohio Jan. 23, 2009) (holding that plaintiffs "made a knowing, intelligent and voluntary waiver of their rights" by filing claims in the Court of Claims arising out of the same incident as their initial suit filed in federal court). Dismissal pursuant to the waiver rule in Leaman, rather than Rule 41(a)(2), is therefore appropriate absent an exception to the waiver.
Ohio Rev. Code § 2743.02(A)(1) provides an exception to the waiver rule when an employee's actions were "manifestly outside the scope of [his] office or employment or [he] acted with malicious purpose, in bad faith, or in a wanton or reckless manner." Turker v. Ohio Dept. of Rehab. and Corrs., 157 F.3d 453, 458 (6th Cir. 1998) (citing Ohio Rev. Code § 2743.02(A)(1)). The determination as to whether the employee's actions were "ultra vires or malicious is to be made exclusively by the Ohio Court of Claims." Id. (citing Ohio Rev. Code § 2743.02(F); Thomson v. Harmony, 65 F.3d 1314, 1318 n.5 (6th Cir. 1995); Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989)). If the Ohio Court of Claims determines the employee's actions fit the exception, the waiver of all claims which generally results from the filing in the Court of Claims is void. Ohio Rev. Code § 2743.02(A)(1). There is no allegation that the Court of Claims has made the requisite determination in plaintiffs case so as to indicate dismissal of this lawsuit pursuant to Leaman is unwarranted.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiffs motion to dismiss pursuant to Rule 41(a)(2) (Doc. 53) be DENIED and this case be DISMISSED without prejudice, subject to reinstatement on the docket of the Court upon a determination by the Ohio Court of Claims that the defendant officers' conduct was manifestly outside the scope of their employment or that the defendant ...