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Downey v. Ohio Department of Rehabilitation And Correction

Court of Claims of Ohio

December 19, 2017


          Sent to S.C. Reporter 1/11/18

          Holly True Shaver Magistrate Judge.


          PATRICK M. MCGRATH Judge.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.)

         {¶4} 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 * * *."

         {¶5} 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 complaint.

         {¶6} Defendant's motion is now before the court for a non-oral hearing pursuant to Civ.R. 56 and LC.C.R. 4.

         {¶7} "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).

         {¶8} 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 15, 2014.

         {¶9} 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.

         {¶10} 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.

         {¶11} "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, ΒΆ 7. "Thus, the state is immune from a common law claim of false imprisonment when the ...

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