George L. Swanson v. Tom Mckenzie, 88-LW-1639
| Decision Date | 17 May 1988 |
| Docket Number | 1673,88-LW-1639 |
| Parties | George L. SWANSON, Plaintiff-Appellant, v. Tom McKENZIE, et al., Defendant-Appellees. |
| Court | Ohio Court of Appeals |
George L. Swanson, Lucasville, Ohio, pro se.
Anthony J. Celebrezze, Jr., Ohio Attorney General, and Allen P Adler, Assistant Attorney General, Columbus, Ohio, for appellees.
DECISION AND JUDGMENT ENTRY
This is an appeal from a judgment entered by the Scioto County Court of Common Pleas granting the motion of Tom McKenzie Paul Duke, and Roger Crabtree, defendants below and appellees herein, to dismiss the complaint of George L. Swanson plaintiff below and appellant herein, for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
Although appellant has not specified assignments of error on appeal as required by App.R. 16(A)(2), it is apparent from his "Memorand (sic) in Support" filed herein that the following errors are being claimed.®1¯
I.THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION.
II.THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
III.THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S COMPLAINT BASED SOLELY ON A HEARING AT WHICH ONLY APPELLEES WERE ALLOWED TO ATTEND.
IV.THE TRIAL COURT ERRED IN CHANGING THE CLEAR AND UNMISTAKABLE MEANING OF A CONSTITUTIONAL PROVISION.
On September 17, 1986 appellant, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, filed a pro se complaint which averred, in pertinent part, as follows. At the relevant times herein appellee Tom McKenzie was an assistant supervisor of the commissary at SOCF, appellee Paul Duke was a correctional officer assigned to the SOCF commissary, and appellee Roger Crabtree was a captain who served as chairman of the SOCF Rules Infraction Board.
For three months prior to the incident from which appellant's claims arose, an inmate named Napier, who worked in the prison commissary, had verbally abused appellant and appellee McKenzie had ignored such verbal attacks. On July 31, 1986 appellant entered the commissary line and asked Napier for the price of a bag of potato chips. Napier responded abusively and appellant quoted from the bible that "a fool's mouth causes his own destruction." Napier then threatened to do bodily harm to appellant.
Appellee Duke told appellant to come to the check-out counter, and he proceeded to void appellant's commissary privileges. Appellee McKenzie told appellant to get out of the commissary line and later ordered appellant to be taken to the "J-2 correction cell block." Although appellant had not been unruly, loud, or profane at any time, and had not disobeyed any direct order by the prison officials, appellee McKenzie, who was "bias (sic), malice (sic) and prejudice (sic) in his decision and intention" towards appellant, ordered appellee Duke to write a fabricated disciplinary ticket against appellant.
On that same date, appellee Duke prepared a disciplinary report wherein he stated that appellant was ordered to shut up after his argument with inmate Napier started, that the argument continued and created a great disturbance in the commissary, and that appellant had thereby violated three prison rules, i.e., disobedience of a direct order, encouraging or creating a disturbance, and disrespect to an officer or inmate. Appellee Duke thus lied about appellant's conduct on that day.
On August 4, 1986, appellee Crabtree and two other members of the SOCF Rules Infraction Board held a hearing at which appellant was allowed to testify. The board rejected appellant's testimony and credited appellee Duke's conduct report, recommending that appellant serve five days in solitary confinement. As additional punishment for the July 31, 1986 incident, appellant's television was taken away from him and was sent to his mother.
Appellant's complaint averred that appellees had violated his constitutional rights pursuant to the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution and further averred that appellees had violated the conspiracy statute set forth in 18 U.S.C. Sec. 241. Appellant's complaint prayed for a declaratory judgment that appellees' actions violated his rights under the United States Constitution, and preliminary and permanent injunctions requiring appellees to return appellant's television, to rescind the policy directive concerning confiscation of "televisions" and issue regulations which prohibit any such confiscation in the future and prohibiting appellees from retaliating against appellant for filing the complaint. Appellant further prayed for $1500 in compensatory damages and $1800 in punitive damages.
On October 29, 1986, appellees filed a motion to dismiss appellant's complaint pursuant to Civ.R. 12(B)(1), (2), and (6). On November 14, 1986, appellant filed a "motion to enter docket and journal entry and memorandum in support", which was essentially a memorandum contra appellees' motion to dismiss. On November 25, 1986, the trial court issued a decision granting appellees' motion to dismiss. On December 10, 1986, the trial court entered judgment granting appellees' motion to dismiss appellant's complaint on the grounds that it was without jurisdiction and appellees were immune from liability pursuant to R.C. 9.86.
On December 30, 1986, appellant filed a "motion for peremptory writ of mandamus to arrest judgment" and a "writ of error coram nobis with motion for saving of exceptions upon record". On February 7, 1987, appellant filed a notice of appeal from the December 10, 1986 judgment. On March 18, 1987, appellees filed a motion to dismiss the instant appeal for failure to file the notice of appeal within thirty days of the December 10, 1986 judgment. See App.R. 4(A); Bosco v. Euclid (1974), 38 Ohio App.2d 40, 42-43.
On April 8, 1987, appellant filed a reply to appellees' motion to dismiss the appeal, stating that the failure to file his notice of appeal within the thirty day time period was the result of the clerk of the trial court's failure to send him a copy of the entry appealed from. On June 2, 1987, this court overruled appellees' motion to dismiss the appeal on the authority of Moldovan v. Cuyahoga Cty. Welfare Dept. (1986), 25 Ohio St.3d 293. Other facts will be presented under the relevant assignments of error.
Appellant's first assignment of error asserts that the trial court erred in dismissing his complaint for lack of subject matter jurisdiction. Appellant initially argues that the trial court had jurisdiction over the subject matter of his complaint by virtue of 28 U.S.C. Sec. 1343(3) and (4) and 1997(1). However, 28 U.S.C. Sec. 1343(3) and (4) grant to federal district courts, not state common pleas courts, original jurisdiction in certain specified instances and there is no 28 U.S.C. Sec. 1997(1) as cited by appellant.
Appellant further argues that the trial court would have been justified in granting the relief he sought, thereby implicitly contending that the trial court had subject matter jurisdiction over his complaint. Subject matter jurisdiction may not be conferred upon the court by agreement of the parties, may not be waived, and is the basis for mandatory sua sponte dismissal. State, ex rel. Lawrence Development Co. v. Weir (1983), 11 Ohio App.3d 96. Appellees argued below that the trial court lacked subject matter jurisdiction in that the state was the real party in interest and the Court of Claims had to initially determine that the acts of the state employees were outside the scope of their employment or that they acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
R.C. 2743.02 provides in pertinent part:
"(A)(1) The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, except that the determination of liability is subject to the limitations set forth in this chapter "
The sovereign immunity rule in Ohio is based upon the constitutional provision stating that suits may be brought against the state in such courts and in such manner as may be provided by law. OHIO CONST., ART. I, SEC. 16. In R.C. 2743.02, the legislature of the state of Ohio waived the state's immunity from liability and consented to be sued in the Court of Claims. Moss v. Coleman (1982), 5 Ohio App.3d 177, 177-178; McIntosh v. Univ. of Cincinnati (1985), 24 Ohio App.3d 116, 118.
This requirement extends to actions which are in essence against the state even though the state is not named as a defendant. State, ex rel. Williams v. Glander (1947), 148 Ohio St. 188, 193. An action against a state officer or employee will be treated as one against the state for purposes of R.C. Chapter 2743 where the state, though not a party to the suit, is the real party against which relief is sought, and where a judgment for the plaintiff, though nominally against the defendant as an individual, could operate to control the action of the state or subject it to liability. Cooperman v. Univ. Surgical Assoc. (1987), 32 Ohio St.3d 191, paragraph one of the syllabus.
Where the conduct in question concerns agency policy, the state is the real party in interest and the suit must be brought in the Court of Claims. Friedman v. Johnson (1985), 18 Ohio St.3d 85, 87; Scot Lad Foods v. Secy. of State (1981), 66 Ohio St.2d 1, 7; Glander, supra. A major purpose of the Court of Claims Act was to centralize the filing and adjudication of all claims against the state and the Court of Claims was created...
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