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

• Decision Date: 20 November 2007
• Docket Number: No. 07AP-472.,07AP-472.
• Citation: 2007 Ohio 6184,880 N.E.2d 508,173 Ohio App.3d 767
• Parties: ROSE, Appellant, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Appellee.
• Court: Ohio Court of Appeals

880 N.E.2d 508

173 Ohio App.3d 767

2007-Ohio-6184

ROSE, Appellant, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Appellee.

No. 07AP-472.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided November 20, 2007.

Norman Rose, pro se.

Marc Dann, Attorney General, and Stephanie Pestello-Sharf, Velda K. Hofacker Carr, and Christopher P. Conomy, Assistant Attorneys General, for appellee.

TYACK, Judge.

{¶ 1} Plaintiff-appellant, Norman Rose ("appellant"), appeals from the judgment of the Ohio Court of Claims granting summary judgment in favor of defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC"). Appellant's appeal arises out of his removal as the warden of the Richland Correctional Institution ("RiCI"). The following facts are taken from the complaint and the parties' summary judgment materials.

{¶ 2} Appellant began his employment with ODRC in 1984 as a classified civil servant. In 1994, he accepted an unclassified position as a warden. In August 2001, appellant was promoted to warden of RiCI. He was demoted in September 2003, and eventually assigned to the unclassified position of deputy warden at the Northeast Pre-Release Center.

{¶ 3} Appellant contends that the circumstances leading up to his demotion began when the Marion Correctional Institution ("MCI") improperly sponsored a religious program known as Promise Keepers. In August 2003, a telecast of the Promise Keepers event at MCI was shown on television at RiCI. Appellant was not aware of the religious content of the program and believed it to be a program promoting family values. Appellant encountered several inmates who were idle, and he ordered them to watch the Promise Keepers telecast. Upon learning of the religious nature of the programming, appellant rescinded the order.

{¶ 4} Appellant alleges that his removal was the result of an August 21, 2003 meeting between former Director Reginald Wilkinson and then Assistant' Director Terry Collins in which Wilkinson directed Collins to remove appellant from his job as warden for ordering inmates to watch the Promise Keepers program.

{¶ 5} Collins met with appellant on September 2, 2003 to inform him of his removal as warden. Collins ended the meeting by telling appellant that he was going to be reassigned to one of two classified positions in the Ohio Central School System. On September 4, 2003, appellant accepted one of the classified positions and informed Collins that reinstatement to a classified position entitled him to the pay status he was in when he left the classified ranks. Collins then informed appellant that he would not get the pay raise he was entitled to because appellant was being disciplined.

{¶ 6} Appellant then requested a due-process hearing. A meeting, was held between appellant, Wilkinson, and Collins on September 12, 2003. Appellant alleges that this hearing was a sham, and the decision had already been made. Appellant was given a letter dated September 9, 2003 from Collins. In the letter, Collins stated that he was recommending a reduction in rank because of the manner in which appellant had dealt with the problem of "hooch" (homemade wine) over the past year, inappropriate comments to the chairman of the Rules Infraction Board ("RIB"), mandating merit status inmates to watch the Promise Keepers broadcast, and a lack of trust and confidence in appellant's decisions and judgment. Appellant contends that he was demoted to an unclassified position, that of deputy warden, to prevent him from getting the pay he was entitled to if he had been allowed to exercise his fallback rights pursuant to R.C. 5120.38. Appellant further claims that he was demoted as a scapegoat for former Director Wilkinson's improper and illegal sponsorship of religion, specifically the promotion of Christianity.

{¶ 7} Meanwhile, on September .6 and 12, 2003, the Mansfield News Journal reported that appellant, was being disciplined because of issues at RiCI including excessive' alcohol and homemade weapons. More articles were published on September 14, 2003. Appellant claims that Collins and Wilkinson released defamatory statements to the media.

{¶ 8} Appellant filed a complaint in the Court of Claims on February 7, 2005. He filed a connected action in the United States District Court for the Northern District of Ohio. He filed an amended complaint in the Court of Claims on April 22, 2005.

{¶ 9} The majority of appellant's claims are based on his contention that when he was demoted and returned to classified service, he was denied his right to fall back to classified service and denied a pay raise to which he was allegedly entitled. He asserted claims for defamation, First Amendment violations, Fourteenth Amendment violations, violations of his civil rights pursuant to Section 1983, Title 42, U.S.Code, breach of contract, promissory estoppel, detrimental reliance, retaliation, and civil conspiracy.

{¶ 10} On June 29, 2006, appellant entered into a consent decree in the federal action concerning religious activities allegedly being sponsored by ODRC.

{¶ 11} ODRC filed a motion for summary judgment on the claims pending in the Court of Claims. The Court of Claims held a hearing on the motion and, on May 16, 2007, granted summary judgment in favor of ODRC.

{¶ 12} The Court of Claims ruled that mandamus was the proper remedy to compel a state official to perform the legal duty of reinstating appellant to the classified service. The court stated that it was without jurisdiction to grant such relief. As for the contract claim, the court held that appellant did not hold his position by contract and therefore was without a legal remedy in the Court of Claims for any alleged breach. The court concluded that appellant's defamation claims were barred by the one-year statute of limitations for such claims. Likewise, the alleged unlawful acts underlying appellant's civil-conspiracy claims either were not properly before the Court of Claims or they were untimely. Finally, the court indicated that it was without jurisdiction to consider appellant's claims of violations of his civil and constitutional rights,

{¶ 13} This appeal followed. On appeal, appellant asserts the following assignments of error:

1. The Court of Claims erred when it failed to hold an immunity hearing as proscribed by Ohio Revised Code 9.86, Ohio Revised Code 2743.02, and Court of Claims of Ohio, Local Rule 4.1.

2. The Court of Claims erred when it declined to adjudicate the plaintiffs Fourteenth Amendment Constitutional and 42 USC 1983 claims.

3. The Court of Claims erred when it failed to award back pay to the plaintiff, who was denied his statutory afforded fallback rights, or to issue a writ of mandamus to enforce the plaintiffs statutory right to fallback from unclassified to classified civil service.

4. The Court of Claims erred in issuing Summary Judgment for defendants.

{¶ 14} For case of discussion, we elect to discuss appellant's assignments of error out of order. At the outset, we note that appellant has not challenged the trial court's ruling that his defamation claims are barred by the statute of limitations or that his conspiracy claims do not survive.

{¶ 15} The law governing motions for summary judgment is clearly set forth in Civ.R. 56. In Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, the Supreme Court of Ohio clarified the burdens of both parties with respect to a motion for summary judgment:

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must. be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

(Emphasis sic.)

{¶ 16} In Ohio, these principles are embodied in a three-prong test taken directly out of Civ.R. 56: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion, that conclusion being adverse to the party against whom the motion for summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343.

{¶ 17} Moreover, "`[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Reeves v. Sanderson Plumbing Prods., Inc. (2000), 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105, quoting Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 255, 106 S.Ct. 2505; 91 L.Ed.2d 202. This court follows these well-settled principles. See, e.g., Baer v. Scotts Co. (Dec. 6, 2001), Franklin App. No. 01AP-323, 2001 WL 1548759.

{¶ 18} Appellate review of summary judgment motions is de novo. Helton v. Scioto' Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162, 703 N.E.2d 841. When reviewing a trial court's decision granting summary judgment, we conduct an independent review of the record, and the appellate court "stands in the shoes of the...