Ely v. Dept. of Rehab. & Corr. ( 2009 )

[Cite as Ely v. Dept. of Rehab. & Corr., 2009-Ohio-7044.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
ANDREW ELY
Plaintiff
v.
DEPARTMENT OF REHABILITATION AND CORRECTIONS
Defendant
Case No. 2008-07985
Judge Clark B. Weaver Sr.
Magistrate Steven A. Larson
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
{¶ 1} On September 23, 2009, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On October 5, 2009, plaintiff filed a response. The motion is
now before the court on a non-oral hearing pursuant to L.C.C.R. 4(D).
{¶ 2} Civ.R. 56(C) states, in part, as follows:
{¶ 3} “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
Case No. 2008-07985 -2- ENTRY
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
{¶ 4} At all times relevant, plaintiff was an inmate in the custody and control of
defendant at various correctional institutions pursuant to R.C. 5120.16. Plaintiff asserts
that employees of defendant at the institutions where he was incarcerated lost or stole
mail containing checks and valuable documents, and appropriated his “ideas.”
Defendant argues that plaintiff cannot prove that its employees lost or stole anything
belonging to him.
{¶ 5} In support of its motion, defendant provided both the affidavit of Jeffery
Brlas, a corrections captain who has been in charge of the Grafton Correctional
Institution (GCI) mail room since May 2007, and the transcript of plaintiff’s deposition.
{¶ 6} At his deposition, plaintiff described the allegedly missing mail as follows:
{¶ 7} 1) $2.5 million check from the United States Marine Corps;
{¶ 8} 2) $5 million check from NASA;
{¶ 9} 3) Letter from the Microsoft Corporation worth $2 million;
{¶ 10} 4) Letter from the Federal Deposit Insurance Corporation concerning
accounts worth in excess of $100 billion;
{¶ 11} 5) Letter from the Bank of America concerning plaintiff’s accounts that
he values at $13 million;
{¶ 12} 6) Letter from a branch office of Fifth Third Bank concerning plaintiff’s
accounts;
{¶ 13} 7) Letter from another branch office of Fifth Third Bank concerning
plaintiff’s accounts;
{¶ 14} 8) Letter from the “Ohio Governmental Financial Corporation”;
{¶ 15} 9) Letter from the Peace Corps regarding paychecks that plaintiff never
received;
Case No. 2008-07985 -3- ENTRY
{¶ 16} 10) Letter from “C&O Railroad Retirement” concerning plaintiff’s father’s
retirement benefits that plaintiff values at $2 million;
{¶ 17} 11) Letter from Senator George Voinovich;
{¶ 18} 12) Letter from Puerto Rico Representative Acevedo-Vila Gribal
concerning an identification card and past paychecks;
{¶ 19} 13) Letter from the Central Intelligence Agency;
{¶ 20} 14) Letter from the “Interpol Police Department” regarding plaintiff’s
passport, travel privileges, and money he is allegedly owed;
{¶ 21} 15) Letter from Lorain National Bank regarding a loan;
{¶ 22} 16) Letter and “verification of graduation” from the Cincinnati College of
Mortuary Science;
{¶ 23} 17) Letter from NASA concerning a “magneto” device that plaintiff
invented. (Plaintiff’s Deposition, Pages 19-44.)
{¶ 24} Plaintiff explained that he sent all of the above-mentioned entities letters at
one time or another and did not receive responses from them. He stated that he
assumed that his letters were responded to in kind and that defendant’s employees
stole or lost those responses. However, plaintiff did not produce any evidence to show
that any of the allegedly lost or stolen mail ever existed.
{¶ 25} Plaintiff also testified at his deposition that defendant stole his idea for an
energy device that he invented, but that he does not have the “faintest idea” who stole
it.
{¶ 26} Brlas states in his affidavit that he has supervised the GCI mail room since
May 2007 and that from that time until the present he has no knowledge of the mail that
plaintiff testified about in his deposition. Brlas further states that any checks that
inmates receive in excess of $100 are logged and returned to sender pursuant to
defendant’s policy. Brlas states that no such check was logged for plaintiff.
{¶ 27} Based upon the foregoing, the court finds that the only reasonable
conclusion to be drawn from the evidence is that plaintiff’s claims regarding allegedly
Case No. 2008-07985 -4- ENTRY
lost or stolen mail are unfounded and that defendant is entitled to judgment as a matter
of law. Accordingly, defendant’s motion for summary judgment is GRANTED and
judgment is rendered in favor of defendant. Court costs are assessed against plaintiff.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.
_____________________________________
CLARK B. WEAVER SR.
Judge
cc:
Stephanie D. Pestello-Sharf Andrew Ely, #A196-374
Assistant Attorney General 2500 South Avon-Belden Road
150 East Gay Street, 18th Floor Grafton, Ohio 44044
Columbus, Ohio 43215-3130
Magistrate Steven A. Larson
MR/cmd
Filed December 9, 2009
To S.C. reporter December 29, 2009