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Perry v. Department of Rehabilitation and Correction

Court of Appeals of Ohio, Tenth District

September 5, 2013

Alfonsia Perry, Plaintiff-Appellant,
v.
Department of Rehabilitation and Correction, Defendant-Appellee

APPEAL from the Court of Claims of Ohio No. 2012-05312

Alfonsia Perry, pro se.

Michael DeWine, Attorney General, and Kristin S. Boggs, for appellee.

DECISION

TYACK, J.

(¶ 1} Alfonsia Perry is appealing the dismissal of his lawsuit against the Ohio Department of Rehabilitation and Correction ("ODRC"). He assigns two errors for our consideration:

[I.] The Trial Court Abused It's [sic] Discretion by Dismissing Plaintiffs Complaint Where The Law Clearly has been established That Plaintiffs Claims are To Be Tried To A Jury.
[II.] The Court of Claims Abused Its Discretion By Ruling That Appellant Did Not State [a claim] Upon Which Relief Could Be Sought.

(¶ 2} Since the two assignments of error are closely related, we will address them together.

(¶ 3} Perry is an inmate at the Chillicothe Correctional Institution ("CCI"). He and several other inmates filed suit in the Court of Claims of Ohio against ODRC, its director, CCI and the warden of CCI. The Court of Claims, via a prescreening order, narrowed the named defendants to ODRC. Perry apparently also filed a civil action in the United States District Court for the Southern District of Ohio.

(¶ 4} The office of the Ohio Attorney General ("Ohio AG") filed a motion to dismiss the case in the Court of Claims alleging two separate grounds. First, Perry's complaint makes reference to the case being a civil rights action, which is not an appropriate case for the Court of Claims. Second, the other claim set forth in Perry's complaint is a claim for negligent or intentional infliction of emotional distress. The office of the Ohio AG alleged that the complaint did not allege a viable claim for negligent infliction of emotional distress such that dismissal was appropriate under Civ.R. 12(B)(6). Perry's complaint literally alleges "Negligent Intentional Infliction of Emotional Distress." Complaint, at 1. As a result, we will consider him as alleging intentional infliction of emotional distress and negligent infliction of emotional distress.

(¶ 5} The standard for dismissing a case under Civ.R. 12(B)(6) is high. Dismissal is appropriate only when a plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief See O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975). In addressing a motion to dismiss under Civ.R. 12(B)(6), the nonmoving party is entitled to the presumption that all factual allegations made in the complaint are true and all reasonable inferences to be drawn from those allegations are to be made in favor of the nonmoving party.

(¶ 6} Applying those legal standards, we now turn to the allegations Perry made in his complaint initiating the lawsuit.

(¶ 7} To the extent the complaint is alleging a civil rights violation, the Ohio AG is correct. Civil rights cases are to be litigated in federal court or in the court of common pleas. The parts of Perry's complaint which alleged a civil rights theory were appropriately dismissed in the Court of Claims.

(¶ 8} The remaining issue, then, is whether Perry sufficiently alleged a claim for intentional or negligent infliction ...


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