WILLIAM F. DOWNEY Plaintiff
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
to S.C. Reporter 1/11/18
True Shaver Magistrate Judge.
PATRICK M. MCGRATH Judge.
On March 24, 2017, the court issued an order setting the
dispositive motion deadline for October 20, 2017. On October
20, 2017, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On October 23, 2017, the court
issued a notice of a non-oral hearing on defendant's
motion for November 17, 2017. On November 27, 2017, plaintiff
filed both an untimely motion for an extension of time to
file his own motion for summary judgment, and an untimely
combined motion for summary judgment and response to
defendant's motion. On December 7, 2017, defendant filed
a memorandum contra to plaintiff's motions.
In his motion, counsel for plaintiff explains that
defendant's motion was sent to his email "spam"
folder, and counsel for plaintiff was not aware that a motion
had been filed until after the dispositive motion deadline.
Counsel for plaintiff also states that he became ill while he
was working on his own motion for summary judgment and was
delayed by his illness. Counsel for plaintiff does not state
that he did not receive the court's March 24 order or
October 23 notice.
L.C.C.R. 4(C) states, in pertinent part: "Each party
opposing the motion shall serve and file, within fourteen
days after service upon him of movant's motion, a
brief written statement of reasons in opposition to the
motion and the authorities upon which he relies. * * *
Failure to file a written statement in opposition to the
motion may be cause for the court to grant the motion as
filed." (Emphasis added.)
Civ.R. 6(B) states, in pertinent part: "When by these
rules or by a notice given thereunder or by order of court an
act is required or allowed to be done at or within a
specified time, the court for cause shown may at any time in
its discretion (1) with or without motion or notice order the
period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended
by a previous order, or (2) upon motion made after the
expiration of the specified period permit the act to be done
where the failure to act was the result of excusable neglect
* * *."
Upon review of his motion, the court finds that counsel for
plaintiff has failed to show that his failure to timely file
a motion or response was the result of excusable neglect.
Accordingly, plaintiffs motion for an extension of time is
DENIED, and his untimely motion and response to
defendant's motion shall not be considered by the court.
However, even if plaintiffs untimely motion and response were
considered, plaintiff has provided no additional evidence
permitted by Civ.R. 56; rather, the attachments he provides
are the same three exhibits that are attached to his
Defendant's motion is now before the court for a non-oral
hearing pursuant to Civ.R. 56 and LC.C.R. 4.
"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
On February 21, 2007, plaintiff was sentenced to seven years
in prison for one count of felonious assault, a felony of the
first degree, in the Mercer County Court of Common Pleas. On
September 24, 2007, plaintiff was sentenced to nine months in
prison for one count of unlawful sexual conduct with a minor,
a felony of the fourth degree, in the Darke County Court of
Common Pleas. Plaintiffs prison terms were served
concurrently. Plaintiff was released from prison on February
In October 2014, the Adult Parole Authority (APA) requested a
holder to detain plaintiff for alleged violations of the
terms of his post-release control (PRC). Plaintiff was
subsequently imprisoned for PRC violations in Mercer County.
On August 15, 2015, plaintiff was released from prison and
returned to PRC supervision. On November 3, 2015, the Third
District Court of Appeals found that the PRC portion of
plaintiffs sentence was void, because the trial court's
sentencing entry failed to notify him of the length of the
term of PRC. On November 6, 2015, the APA terminated
plaintiffs PRC supervision.
Plaintiff alleges that he was falsely imprisoned for 268
days, because the PRC portion of his sentencing entry was
determined to be void. Defendant asserts that it is entitled
to summary judgment on plaintiffs claim of false imprisonment
because there was nothing on the face of the sentencing
entries to show that they were invalid, and that plaintiffs
claim is barred by the applicable statute of limitations.
"False imprisonment occurs when a person confines
another intentionally 'without lawful privilege and
against his consent within a limited area for any appreciable
time, however short.'" 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). "Pursuant to R.C. 2743.02(A)(1), the
state may be held liable for the false imprisonment of its
prisoners." Id. at paragraph two of the
syllabus. The elements for false imprisonment of an inmate
beyond a lawful term of incarceration are: "(1)
expiration of the lawful term of confinement, (2) intentional
confinement after the expiration, and (3) knowledge that the
privilege initially justifying the confinement no longer
exists." Corder v. Ohio Dept. ofRehab. & Corr.,94 Ohio App.3d 315, 318
(10th Dist.1994). "An action for false imprisonment
cannot be maintained, however, when the imprisonment is in
accordance with the judgment or order of a court, unless it
appears such judgment or order is void on its face."
Pruitt v. Ohio Dept. of Rehab. & Corr.,
10th Dist. Franklin No. 13AP-117, 2013-Ohio-3743, ¶ 7.
"Thus, the state is immune from a common law claim of
false imprisonment when the ...