[Cite as Henley v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-5593.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Brian D. Henley, : 

 Plaintiff-Appellant, : No. 16AP-168 

 (Ct. of Cl. No. 2014-00275)

v. : 

 (REGULAR CALENDAR) 

Ohio Department of : 

Rehabilitation and Correction, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on August 30, 2016 

 

On brief: Brian D. Henley, pro se. 

On brief: Michael DeWine, Attorney General, and Velda K. 

Hofacker, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

LUPER SCHUSTER, J. 

{¶ 1} Plaintiff-appellant, Brian D. Henley, appeals from a judgment of the Court 

of Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and 

Correction ("ODRC"), on Henley's claim of negligence, which was based on his allegation 

that a correctional lieutenant used excessive force on him. For the following reasons, we 

affirm.

I. Facts and Procedural History 

{¶ 2} Henley, who is in ODRC's custody, sued ODRC in March 2014. Henley 

alleged that Drew Crago, a correctional lieutenant at the Richland Correctional 

Institution, used excessive force on him on November 20, 2013. According to Henley, 

Lieutenant Crago negligently used unnecessary and excessive force when he pepper 
No. 16AP-168 2 

sprayed Henley in the face after Henley already had been handcuffed and taken to the 

prison's "captain's office" in connection with his dispute with other officers. (Mar. 19, 

2014 Compl. at 1.) ODRC asserted that the pepper spray was used to subdue Henley after 

he became aggressive toward an officer. The issues of liability and damages were 

bifurcated, and the matter proceeded to a trial on the issue of liability before a Court of 

Claims magistrate in May 2015. In August 2015, the magistrate recommended the court 

find that Henley failed to prove his claim by a preponderance of the evidence and 

therefore enter judgment in favor of ODRC. Additionally, the magistrate recommended 

the court find that Lieutenant Crago is entitled to civil immunity pursuant to R.C. 9.86 

and 2743.02(F). 

{¶ 3} Henley filed objections to the magistrate's decision and, pursuant to Civ.R. 

53(D)(3)(b)(iii), requested leave to use alternative technology in the form of an audio 

recording of the trial to support his objections. Finding Henley indigent, the Court of 

Claims granted his Civ.R. 53(D)(3)(b)(iii) request and, thus, reviewed the audio recording 

as part of its review of the objections. The Court of Claims overruled Henley's objections 

and adopted the magistrate's decision in its entirety. 

{¶ 4} Henley timely appeals. 

II. Assignments of Error 

{¶ 5} Henley assigns the following errors for our review: 

[1.] The trial court's finding that Defendant was not negligent 

is against the manifest weight of the evidence. 

[2.] The Defendant must be held liable where the Defendant's 

employees acted in violation of either R.C. 2921.44(C) or Ohio 

Admin. Code 5120-9-04. 

[3.] Lt. Crago is not entitled to civil immunity pursuant to R.C. 

2743.02(F) and 9.86. 

III. Discussion 

{¶ 6} For ease of discussion, we address Henley's first and third assignments of 

error together. Henley's first assignment of error alleges the Court of Claims's finding 

that ODRC was not negligent was against the manifest weight of the evidence. His third 
No. 16AP-168 3 

assignment of error alleges that the Court of Claims erred in finding that Lieutenant Crago 

is entitled to civil immunity pursuant to R.C. 9.86 and 2743.02(F). 

{¶ 7} It is well-established that an appellant seeking reversal of a trial court's 

judgment has the burden of demonstrating error by reference to matters in the record. 

Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-965, 2012-Ohio-1665, ¶ 16. 

Pursuant to App.R. 9, an appellant must submit to the court of appeals a transcript of the 

trial court proceedings deemed necessary for appellate review. However, if a transcript is 

unavailable, an appellant may utilize App.R. 9(C) or (D). See App.R. 9(B)(4). A transcript 

is considered unavailable when an appellant is indigent and unable to bear the cost of 

providing a transcript. State ex rel. Motley v. Capers, 23 Ohio St.3d 56, 58 (1986). 

App.R. 9(C)(1) provides that if a transcript of lower court proceedings is unavailable, an 

appellant may prepare a statement of the evidence "from the best available means, 

including the appellant's recollection." As to cases initially heard by a trial court 

magistrate, App.R. 9(C)(2) states that "a party may use a statement under this division in 

lieu of a transcript if the error assigned on appeal relates solely to a legal conclusion." 

However, "[i]f any part of the error assigned on appeal relates to a factual finding, the 

record on appeal shall include a transcript or affidavit previously filed with the trial 

court." App.R. 9(C)(2). App.R. 9(D) permits the filing of an agreed statement of the case 

in lieu of a record transcript. When portions of the transcript necessary for resolution of 

assigned errors are omitted from the record and the appellant has provided no acceptable 

alternative to a transcript, "the reviewing court has nothing to pass upon and thus, as to 

those assigned errors, the court has no choice but to presume the validity of the lower 

court's proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 

(1980). 

{¶ 8} Henley's first and third assignments of error challenge the Court of Claims's 

immunity finding as to Lieutenant Crago and its determination that the facts do not 

demonstrate that ODRC was negligent. In accordance with R.C. 2743.02(F), the Court of 

Claims "has exclusive jurisdiction to determine whether a state employee is immune from 

liability under R.C. 9.86." Johns v. Univ. of Cincinnati Med. Assocs., 101 Ohio St.3d 234, 

2004-Ohio-824, syllabus. Immunity is a question of law, but determination of the issue 

requires consideration of the specific facts of the case. Siegel v. State, 10th Dist. No. 
No. 16AP-168 4 

14AP-279, 2015-Ohio-441, ¶ 29. Furthermore, to prove actionable negligence, a plaintiff 

must show the existence of a duty, breach of that duty, and injury proximately caused by 

the breach. Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). The state owes a duty to 

inmates to reasonably care for the inmates' health, care, and well-being. Miller v. Ohio 

Dept. of Rehab. & Corr., 10th Dist. No. 12AP-12, 2012-Ohio-3382, ¶ 12. Whether there is 

a breach of that duty is determined based on the factual circumstances of the case. See 

Beck v. Camden Place at Tuttle Crossing, 10th Dist. No. 02AP-1370, 2004-Ohio-2989 

(breach of an imposed duty is a question of fact). Because these determinations are 

contingent on the underlying facts of each case, our review of the Court of Claims's 

conclusions on these issues requires a review of the evidence presented at trial. However, 

the record before this court does not include a transcript of the Court of Claims 

proceedings or a permissible substitute under either App.R. 9(C) or (D). As a result, we 

must presume the evidence supported the Court of Claims's determinations. Therefore, 

we overrule Henley's first and third assignments of error. 

{¶ 9} In his second assignment of error, Henley asserts the Court of Claims erred 

in not finding ODRC liable because its employees violated R.C. 2921.44(C) and Ohio 

Adm.Code 5120-9-04. According to Henley, this court's decision in Peters v. Dept. of 

Rehab. & Corr., 10th Dist. No. 14AP-1048, 2015-Ohio-2668, combined with his allegation 

of negligence, required the Court of Claims to determine ODRC's liability under R.C. 

2921.44(C). Henley also argues that Lieutenant Crago violated Ohio Adm.Code 5120-9-

04 and that the Court of Claims should have considered that violation as proving his claim 

of negligence against ODRC. Henley's arguments are unpersuasive. 

{¶ 10} As to Henley's negligence claim, the primary issue before the Court of 

Claims was whether ODRC breached its duty of reasonable care as to Henley's health, 

care, and well-being. The statute and administrative code provision Henley cites do not 

create a separate civil cause of action against the state, nor does Henley allege that they 

alter the state's common-law duty to exercise reasonable care as it relates to prisoners. 

R.C. 2921.44(C) is a criminal statute prohibiting dereliction of duty by a detention facility 

officer, and Ohio Adm.Code 5120-9-04 sets forth ODRC's administrative regulations 

concerning "[a]ppropriate supervision, discrimination and racial issues." In Peters, the 

plaintiff argued that ODRC was liable because its officer violated R.C. 2921.44(C). This 
No. 16AP-168 5 

court determined that the plaintiff's reference to that criminal statute was unavailing 

because the plaintiff made no allegation of common law negligence and the statute does 

not create a separate civil action. Peters at ¶ 12-13, citing Allen v. Ohio Dept. of Rehab. & 

Corr., 10th Dist. No. 14AP-619, 2015-Ohio-383. Here, as Henley notes, he did allege 

negligence. While this case is distinguishable from Peters on that fact, it does not alter the 

underlying principle that R.C. 2921.44(C) does not create a separate cause of action. 

Similarly, the violation of prison regulations like those set forth in Ohio Adm.Code 5120-

9-04 does not create a separate cause of action. Peters at ¶ 9-10. Because the statute and 

administrative code provision Henley cites do not create a separate cause of action, and 

because they do not alter the state's common law duty of care toward prisoners, the Court 

of Claims engaged in the proper analysis as to Henley's negligence claim when it 

determined that the degree of force Lieutenant Crago used was not excessive and satisfied 

ODRC's duty of reasonable care. Thus, Henley's reliance on R.C. 2921.44(C) and Ohio 

Adm.Code 5120-9-04 is unavailing. 

{¶ 11} Because Henley fails to demonstrate that the Court of Claims erred in 

rejecting his arguments relating to R.C. 2921.44(C) and Ohio Adm.Code 5120-9-04, we 

overrule his second assignment of error. 

IV. Disposition 

{¶ 12} Having overruled all three of Henley's assignments of error, we affirm the 

judgment of the Court of Claims of Ohio. 

Judgment affirmed. 

DORRIAN, P.J., and BROWN, J., concur.