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Acre v. Ohio Parole Board

Court of Claims of Ohio

May 10, 2017

DANIEL F. ACRE Plaintiff

          Sent to S.C. Reporter 6/16/17

          Stacy L. Hannan Assistant Attorney General.

          Sophia Chang Magistrate Judge.


          PATRICK M. MCGRATH Judge.

         {¶1} On February 28, 2017, defendant filed a motion for summary judgment. On March 16, 2017, plaintiff filed what the court construes as a response to defendant's motion without a certificate of service.[1] On March 21, 2017, defendant filed a motion for leave to file a reply to plaintiffs response as well as its response. Upon review, defendant's motion for leave is GRANTED. The motion for summary judgment is now before the court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4.

         {¶2} As a preliminary matter, plaintiff filed a second amended complaint on February 21, 2017 as well as a third amended complaint on March 3, 2017, without leave of court. Defendant filed motions to strike the amended complaints on February 28, 2017 and March 6, 2017, respectively. Pursuant to Civ.R. 15(A), plaintiff may only amend his complaint "once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading. After that period, plaintiff may amend his complaint only "with the opposing party's written consent or the court's leave. The court shall freely give leave when justice so requires." Id. The record shows that defendant filed its answer on December 19, 2016, and plaintiff has failed to comply with Civ.R. 15(A) because he has not obtained defendant's written consent nor did he request leave from the court in either amended complaint. Accordingly, defendant's motions to strike are GRANTED, and plaintiffs February 21, 2017 and March 3, 2017 amended complaints are hereby STRICKEN.

         {¶3} Plaintiff also filed a motion for appointment of counsel on April 3, 2017. "[A]n indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Perotti v. Ohio Dept. of Rehab. & Corr., 61 Ohio App.3d 86, 91 (10th Dist.1989), quoting Lassiter v. Dept. of Social Services, 452 U.S. 18, 26-27 (1981). Plaintiff is not at risk of losing his physical liberty as a result of any determination that may be made by the court. Accordingly, plaintiffs motion for the appointment of counsel is DENIED.

         {¶4} Turning to the motion for summary judgment, Civ.R. 56(C) states, in part, as follows:

         {¶5} "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 Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977).

         {¶6} Plaintiff, an inmate in the custody and control of the Ohio Department of Rehabilitation and Correction at Southeastern Correctional Institution, brings a claim of false imprisonment stemming from a rape and felony assault conviction which occurred in 1981. Plaintiff states in his amended complaint that his release date was originally in 2011 and that he was released, not just paroled, in 2005. Plaintiff further alleges that defendant is falsely imprisoning him in retaliation for the $35 million lawsuit he filed against them. Although plaintiff does not challenge the validity of the judgment entry in his amended complaint, he raises the issue in his response to defendant's motion for summary judgment. He argues that even though his sentence was valid in 1981, it became void because his sentence was changed. Plaintiff also seems to argue that the sentencing entry is void because it does not impose post-release control. In addition to these claims, plaintiff seeks to be released because of conflicts with other inmates and because he has cancer and does not want to die while incarcerated.

         {¶7} Defendant argues that plaintiffs claim for false imprisonment fails because he has been imprisoned pursuant to a valid judgment entry, that it is entitled to discretionary immunity regarding its decision to revoke plaintiffs parole for violations of his conditions of release, and that plaintiffs proper remedy for his claim that the sentencing entry is void was to petition the trial court for a revised sentencing entry.

         {¶8} "False imprisonment occurs when a person confines another intentionally 'without lawful privilege and against his consent within a limited area for any appreciable time * * *." Bennett v. Ohio Dept. of Rehab. & Corr., 60 Ohio St.3d 107, 109 (1991), quoting Feliciano v. Kreiger, 50 Ohio St.2d 69, 71 (1977). In order to prevail on a claim of false imprisonment, a plaintiff must show that: 1) his lawful term of confinement expired; 2) defendant intentionally confined him after the expiration, and 3) defendant had knowledge that the privilege initially justifying the confinement no longer existed. Corder v. Ohio Dept. of Rehab. & Corr., 94 Ohio App.3d 315, 318 (1994). However, "an action for false imprisonment cannot be maintained where the wrong complained of is imprisonment in accordance with the judgment or order of a court, unless it appear that such judgment or order is void." Bennett, supra at 111. See also Bradley v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 07AP-506, 2007-Ohio-7150, ¶ 10. Thus, the state is immune from a common law claim of false imprisonment when the plaintiff was incarcerated pursuant to a facially-valid judgment or order, even if the facially-valid judgment or order is later determined to be void. Id. at ¶ 11. Facial invalidity does not require the consideration of extrinsic information or the application of case law. Gonzales v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 08AP-567, 2009-Ohio-246, ¶ 10. Furthermore, "[defendant ha[s] no discretion to release an inmate until it receive[s] an entry indicating [defendant] no longer [is] privileged or justified in confining the inmate." Trice v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 07AP-828, 2008-Ohio-1371, ¶ 19; see also Griffin v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-733, 2011-Ohio-2115, ¶ 21.

         {¶9} Furthermore, the Supreme Court of Ohio has held that "[t]he language in R.C. 2743.02 that 'the state' shall 'have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties * * *' means that the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion." Reynolds v. State, 14 Ohio St.3d 68, 70 (1984); Von Hoene v. State, 20 Ohio App.3d 363, 364 (1985).

         {¶10} In considering an inmate's claim that the determination of his parole was improperly continued, the Tenth District Court of Appeals has held that "[a] parole board's decision to grant or deny parole is an executive function involving a high degree of official judgment or discretion. Therefore, under the rationales in Von Hoene and Reynolds, we conclude that the Court of Claims has no jurisdiction to hear a claim attacking a parole board's decision to grant or deny parole. Thus, in this case, the Court of Claims properly dismissed appellant's action attacking the parole board's ...

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