from the Court of Claims of Ohio, Ct. of Cl. No. 2017-00149
Burse, pro se.
Yost], Attorney General, Howard H. Harcha, IV, for appellee.
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.
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
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
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.
ASSIGNMENTS OF ERROR
7} Burse filed a timely appeal and raised the