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Burse v. Ohio Department of Rehabilitation and Correction

Court of Appeals of Ohio, Tenth District

July 16, 2019

Perrin Burse, Plaintiff-Appellant,
v.
Ohio Department of Rehabilitation and Correction, Defendant-Appellee.

          APPEAL from the Court of Claims of Ohio, Ct. of Cl. No. 2017-00149

         On brief:

          Perrin Burse, pro se.

          [Dave Yost], Attorney General, Howard H. Harcha, IV, for appellee.

          DECISION

          BRUNNER, J.

         {¶ 1} Plaintiff-appellant, Perrin Burse, appeals from a judgment of the Court of Claims of Ohio dismissing Burse's complaint pursuant to the motion of defendant-appellee, the Ohio Department of Rehabilitation and Correction ("ODRC"). For the following reasons, we affirm the judgment of the Court of Claims.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} According to the complaint, Burse was incarcerated at the Chillicothe Correctional Institution ("CCI"), operated by ODRC. At CCI, Burse had three boxes of legal materials concerning his multiple pending legal actions. Burse had seven actions pending as of February 1, 2015. On February 13, 2015, Burse was temporarily transferred from the A-1 housing unit to the E-2 housing unit of CCI due to asbestos removal. Burse pleads in his complaint that he had authorization to move the three legal boxes. However, on February 17, 2015, Unit Manager Shane Clark and Sergeant Farrar told Burse to reduce his legal materials to one box, after Sergeant Farrar stated, "I'm going to make an example out of him." (Feb. 13, 2017 Compl. at ¶ 23.)

         {¶ 3} Burse then mailed some of his documents and discarded others and reduced the materials to two boxes. Burse returned the empty box to Sergeant Farrar and was told to put the remaining two boxes under his bed and to report to Inspector Corby Free's office the next morning. However, the next morning, Inspector Free did not report to work. Burse attempted to pick up his legal mail, which consisted of trial transcripts, attorney notes, and a DVD from the police interview conducted by the Springfield Township Police Department, sent to him by the Ohio Innocence Project. According to Burse, included were instructions to review the DVD, write a motion and to include relevant references to the interview on the DVD as newly discovered exculpatory evidence for his new trial hearing which was scheduled for March 17, 2015. Only the written materials were released to Burse because the DVD could only be released to a Unit Manager. Burse could not find the Unit Manager for his temporary housing, Unit Manager Clark, so he informed the Case Manager for the D-4 dormitory, Ms. Alford, who attempted to convey the message to Unit Manager Clark.

         {¶ 4} The next day, on February 20, 2015, Unit Manager Clark yelled at Burse because he had more than one box of legal materials and Unit Manager Clark told Burse he had until the end of the day to reduce the materials to one box. Burse attempted to explain that Sergeant Farrar told Burse to put the two boxes under his bed. Burse was attempting to condense his materials approximately 15 minutes later, Unit Manager Clark told him he was being placed in segregation.

         {¶ 5} While in segregation, Burse was unable to view or access any legal materials. On March 3, 2015, Burse was released from segregation "with no conduct report of a guilty finding." (Compl. at ¶ 27.) On March 4, 2015, Burse was "forced to mail out legal materials." (Compl. at ¶ 28.) He was permitted to view the DVD on March 6, 2015. Burse mailed the DVD to Hamilton County Courthouse. Burse filed a motion for extension of time regarding his hearing scheduled on March 17, 2015, but he received a denial of his request on March 16, 2015. Burse contends legal documents were lost and never returned. Burse contends that the loss of the documents led to the unsuccessful pursuit of his claims. Most notably, Burse contends that ODRC's conduct deprived him of the opportunity to present the DVD to the First District Court of Appeals, which would have exonerated him of the underlying theft convictions.

         {¶ 6} Burse filed his complaint before the Court of Claims on February 13, 2017, alleging that ODRC employees violated provisions of the Revised Code and the Ohio Administrative Code, in addition to violating ODRC policies. Burse named 17 individual employees, including the Chillicothe Institution's Warden, and CCI as defendants. On February 14, 2017, the Court of Claims dismissed the 17 individuals because only state agencies and instrumentalities can be defendants in the court of claims. ODRC filed a motion to dismiss the complaint on March 14, 2017, according to Civ.R. 12(B)(1) and (6). The Court of Claims dismissed the complaint on May 23, 2017.

         II. ASSIGNMENTS OF ERROR

         {¶ 7} Burse filed a timely appeal and raised the following ...


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