DANIEL F. ACRE Plaintiff
OHIO PAROLE BOARD Defendant
to S.C. Reporter 6/16/17
L. Hannan Assistant Attorney General.
Chang Magistrate Judge.
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
PATRICK M. MCGRATH Judge.
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. 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.
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
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.
Turning to the motion for summary judgment, Civ.R. 56(C)
states, in part, as follows:
"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
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.
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
"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.
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).
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 ...