Perry v. Ohio Dept. of Rehab. & Corr.

[Cite as Perry v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-2831.]
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
RAY A. PERRY
Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant
Case No. 2010-09752
Judge Joseph T. Clark
Magistrate Matthew C. Rambo
DECISION
{¶ 1} This case is sua sponte assigned to Judge Joseph T. Clark to conduct all
proceedings necessary for decision in this matter.
{¶ 2} On March 7, 2011, plaintiff filed a motion for default judgment. On March
21, 2011, defendant filed a memorandum contra to plaintiff’s motion and a motion for
summary judgment pursuant to Civ.R. 56(B). On March 28, 2011, plaintiff filed two
responses to defendant’s motion. On March 30, 2011, plaintiff filed an additional
response to the motion. The motions are now before the court on a non-oral hearing
pursuant to L.C.C.R. 4(D).
{¶ 3} With regard to plaintiff’s motion for default judgment, plaintiff argues that
defendant did not timely respond to his settlement demand and that he is thus entitled
to judgment in his favor. Plaintiff’s motion is not well-taken and is DENIED.
{¶ 4} Civ.R. 56(C) states, in part, as follows:
{¶ 5} “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 County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
{¶ 6} Plaintiff asserts a claim for false imprisonment based upon his allegations
that he completed his two-year sentence for the crime of escape and should have been
released from defendant’s custody on January 9, 2009, but was not released until
August 2, 2010.
{¶ 7} “False imprisonment occurs when a person confines another intentionally
‘without lawful privilege and against his consent within a limited area for any appreciable
time * * *.’” Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109,
quoting Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71. The elements of a false
imprisonment claim 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. of Rehab. & Corr. (1994), 94
Ohio App.3d 315, 318.
{¶ 8} In support of its motion, defendant filed the affidavit of Melissa Adams,
who states:
{¶ 9} “1. I am the Chief of the Bureau of Sentence Computation (BOSC) of
[defendant] and have held this position for one year. My job duties include but are not
limited to direct responsibility for the BOSC, direct supervision of 45 staff members,
review of sentence computations to ensure accuracy and compliance with Ohio law,
monitor, review and enforce BOSC policies, develop procedures relevant to inmate
records, and oversee the training for BOSC staff.
{¶ 10} “2. I have personal knowledge and I am competent to testify to the facts
contained in this Affidavit.
{¶ 11} “3. In March, 1993, [plaintiff], under Case No. CR291732, was convicted
of felonious assault, aggravated burglary, and carrying a concealed weapon. His
conviction and subsequent sentencing took place in the Cuyahoga County Court of
Common Pleas.
{¶ 12} “4. Plaintiff was incarcerated on April 6, 1993, under DRC #273-070,
serving a three year term for a gun specification consecutive with eight to twenty-five
years for the felonious assault and aggravated burglary charges. In addition, he
received ninety-nine days of jail time credit, Accordingly, the maximum expiration of his
sentence at that time was computed as December 21, 2020.
{¶ 13} “5. Plaintiff was paroled on August 22, 2001 and was ordered to complete
the remainder of his sentence under the supervision of [APA].
{¶ 14} “6. Plaintiff was declared at large on January 15, 2002 and was not
restored to parole until April 7, 2002. Due to his time at large, eighty-two days of lost
time was added to his maximum expiration of sentence changing it to March 13, 2021.
{¶ 15} “7. Plaintiff then committed another felony and was incarcerated on
September 30, 2003, under DRC #434-102, to serve a two year term for escape plus
three years of post-release control. He was sentenced in the Cuyahoga County Court
of Common Pleas under Case No. CR420801. His parole was revoked on the previous
charges and his sentences were aggregated.
{¶ 16} “8. Plaintiff was paroled on November 2, 2004, but was still required to
fulfill his reporting obligations until the end of his sentences in Case. No CR291732. He
was declared at large on November 15, 2004, and was not restored to parole until July
30, 2005. Consequently, he was assessed 257 days of lost time for the period of time
he was at large.
{¶ 17} “9. In 2005, plaintiff was indicted for, and pled guilty to, escape in Case
No. CR464744A. In light of his plea, plaintiff was sentenced to one year of community
control under the supervision of APA. He was contemporaneously ordered to serve
fifty-five days in county jail after which his community control in Case No. CR464744A
was terminated and he was released.
{¶ 18} “10. Despite the fact that plaintiff fulfilled his
obligations under the court order in Case No. CR464744A, his duty to report as a result
of his conviction in Case No. CR291732 continued.
{¶ 19} “11. Plaintiff, however, was once again declared at
large on September 29, 2005 and was not restored to parole until February 15, 2007.
Consequently, he was assessed 504 days for time lost during the at large period.
{¶ 20} “12. As a result of the lost time amounts, plaintiff’s
maximum expiration of sentence changed to April 13, 2023.
{¶ 21} “13. Since plaintiff failed to meet his reporting
obligations, he was indicted for, and convicted of, escape in Case No. CR474846.
{¶ 22} “14. Plaintiff was incarcerated on September 27,
2007, under DRC #534311, to serve a two year term for escape plus two years for post-
release control. He was sentenced in the Cuyahoga County Court of Common Pleas
under Case No. CR474846. On the court’s journal entry, the Cuyahoga County
Sheriff’s Office was instructed to calculate jail time credit.
{¶ 23} “15. On March 16, 2009 the court awarded plaintiff
with 132 days of jail time credit, which was thereafter applied to this sentence by
[defendant]. The expiration of plaintiff’s two year term for escape under Case No.
CR474846 will occur on May 6, 2009.
{¶ 24} “16. Plaintiff’s parole in Case No. CR291732 was
again revoked and the maximum expiration of his sentence became, and remains, April
13, 2023.
{¶ 25} “17. Plaintiff is currently incarcerated at Lake Erie
Correctional Institution as a result of his conviction in Case. No. CR474846 and the
revocation of his parole in Case No. CR291732.”1
{¶ 26} Based upon the undisputed averments made by Adams, the court finds
that inasmuch as plaintiff’s lawful term of imprisonment does not expire until April 13,
2023, defendant was privileged to imprison or supervise plaintiff at all times relevant.
With regard to plaintiff’s claim that the APA improperly revoked his parole
following his conviction for escape in 2007, it has been consistently held that the APA’s
decision to revoke parole is an exercise of an executive function involving a high degree
of official judgment or discretion pursuant to legislative authority and, as such, is not
actionable under the discretionary immunity doctrine. Johnson v. Adult Parole Auth.
(Feb. 15, 2000), Franklin App. No. 99AP-522; see also Reynolds v. State (1984), 14
Ohio St.3d 68.
{¶ 27} To the extent that plaintiff is challenging the sentences imposed upon him
by the Cuyahoga County Court of Common Pleas, it is well-settled that a plaintiff may
not substitute an action in the Court of Claims for a right of appeal in a different court.
See Hardy v. Belmont Corr. Inst., Ct. of Cl. No. 2004-09631, 2006-Ohio-623. “R.C.
2743.02 does not embrace jurisdiction to review criminal proceedings occurring in
courts of common pleas.” Donaldson v. Court of Claims of Ohio (May 19, 1992),
Franklin App. No. 91AP-1218; see also Troutman v. Ohio Dept. of Rehab. & Corr.,
Franklin App. Nos. 03AP-1240 and 04AP-670, 2005-Ohio-334.
{¶ 28} Based upon the foregoing, the court finds that defendant is entitled to
judgment as a matter of law. Accordingly, defendant’s motion for summary judgment
shall be granted and judgment shall be rendered in favor of defendant.
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
RAY A. PERRY
Plaintiff
v.
1
Plaintiff states in his complaint that he was released from defendant’s custody on August 2, 2010, and
the court’s docket shows that plaintiff is not currently in defendant’s custody.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant
Case No. 2010-09752
Judge Joseph T. Clark
Magistrate Matthew C. Rambo
JUDGMENT ENTRY
A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment. For the reasons set forth in the decision filed concurrently
herewith, 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.
_____________________________________
JOSEPH T. CLARK
Judge
cc:
Emily M. Simmons Ray A. Perry
Assistant Attorney General 1550 Superior Avenue
150 East Gay Street, 18th Floor Cleveland, Ohio 44114
Columbus, Ohio 43215-3130
MR/cmd
Filed May 27, 2011
To S.C. reporter June 7, 2011