[Cite as Benick v. Dept. of Agriculture, 2019-Ohio-5469.]

{¶1} On November 20, 2019, defendant filed a motion for judgment on the 

pleadings pursuant to Civ.R. 12(C). Plaintiff did not file a response. 

{¶2} “Civ.R. 12(C) may be employed by a defendant as a vehicle for raising the 

several defenses contained in Civ.R. 12(B) after the close of the pleadings. * * * 

Pursuant to Civ.R. 12(C), the pleadings must be construed liberally and in a light most 

favorable to the party against whom the motion is made along with the reasonable 

inferences drawn therefrom. * * * A Civ.R. 12(C) motion presents only questions of law, 

and it may be granted only when no material factual issues exist, and the movant is 

entitled to a judgment as a matter of law.” Burnside v. Leimbach, 71 Ohio App.3d 399, 

402-403, 594 N.E.2d 60 (10th Dist.1991). 

{¶3} Defendant’s motion raises the defenses contained in Civ.R. 12(B)(1) and 

(6). “The standard of review for a dismissal pursuant to Civ.R. 12(B)(1) is whether any 

cause of action cognizable by the forum has been raised in the complaint.” State ex rel. 

Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). “In order for a court to 

dismiss a complaint for failure to state a claim upon which relief can be granted 

(Civ.R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can 

prove no set of facts entitling him to recovery.” O’Brien v. Univ. Community Tenants 

Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. 

{¶4} According to the complaint and documents attached thereto, plaintiff was 

formerly employed with the Morrow County Health Department as Director of 

Environmental Health. Plaintiff seeks $50,000,000 in damages arising from allegations 

BRIAN L. BENICK 

 Plaintiff 

 v. 

DEPARTMENT OF AGRICULTURE 

 Defendant

Case No. 2018-01543JD 

Judge Patrick M. McGrath 

Magistrate Robert Van Schoyck 

ENTRY GRANTING DEFENDANT’S 

MOTION FOR JUDGMENT ON THE 

PLEADINGS 
Case No. 2018-01543JD -2- ENTRY 

that defendant’s “Food Safety Division forces local health departments to violate state 

laws and state rules.” (Complaint, ¶ 12, 14.) The complaint provides that such 

violations have “occurred for years” throughout the state and “specifically in Morrow Co. 

since 7/28/16”. (Id., ¶ 10-11.) On that date, July 28, 2016, defendant notified the 

Morrow County Health Department that its Retail Food Establishment Licensing and 

Inspection Program would be classified as “provisional” due to several deficiencies that 

defendant found while conducting a survey of the program pursuant to R.C. 3717.11 

and Ohio Adm.Code 901:3-4-17, according to an attachment to the complaint. 

{¶5} Plaintiff, who disagreed with the results of that survey, claims that 

defendant “forces [local health districts] to require food-related businesses to install 

equipment not specified in rules” and “forced [the Morrow County Health Department] to 

close Amish businesses, violating the Ohio Supreme Court deliberately.” (Id., ¶ 12.) 

According to plaintiff: 

[defendant] regularly exceeds their authority, forcing [local health districts] 

to document huge numbers of violations, when it is the local health 

departments’ authority to determine what constitutes a violation. 

[Defendant] deliberately ignores the lawful definitions of “food service 

operation” and “retail food establishment” to force [local health districts] to 

provide money to [defendant] that lawfully is required to go to [the Ohio 

Department of Health]. 

(Id.) Plaintiff asserts that he has “taken every possible action to avoid being forced to 

violate state laws + rules. My supervisor, my subordinate, MCHD board of health, 

[defendant] and local health departments have all interferred [sic] with my efforts, forced 

me to violate state laws + rules, and resulting in my termination.” (Id., ¶ 13.) 

{¶6} As defendant notes in its motion for judgment on the pleadings, the 

complaint does not identify any specific cause of action. The gravamen of the complaint 

aims to challenge what plaintiff claims are violations of defendant’s statutory 
Case No. 2018-01543JD -3- ENTRY 

responsibilities to survey retail food establishment programs administered by boards of 

health throughout the state. Basically, plaintiff contends that defendant has exceeded 

its authority in performing these surveys or otherwise exercising its regulatory or 

supervisory duties and has misapplied applicable laws and regulations. Defendant 

argues, however, that such allegations do not support a claim upon which relief can be 

granted in this court. The court agrees. 

{¶7} “The Court of Claims Act, effective January 1, 1975, waived the state’s 

sovereign immunity and established the Court of Claims * * *.” Keller v. Dailey, 124 

Ohio App.3d 298, 302, 706 N.E.2d 28 (10th Dist.1997). “The court of claims has 

exclusive, original jurisdiction over civil actions against the state for money damages 

that sound in law.” Young v. Ohio State Univ. Hosps., 2017-Ohio-2673, 90 N.E.3d 234, 

¶ 13 (10th Dist.), citing R.C. 2743.03(A)(1). “While the state waived its sovereign 

immunity in R.C. 2743.02, the state also limited its amenability to suit.” Cardi v. Dept. of 

Commerce, 10th Dist. Franklin No. 12AP-15, 2012-Ohio-6157, ¶ 13. “R.C. 2743.02 

limits actions brought in the Court of Claims to those which could be brought between 

private parties.” Peters v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 03AP350, 2003-Ohio-5895, ¶ 13; see also Henneke v. Ohio Dept. of Ins., 10th Dist. Franklin 

No. 11AP-254, 2011-Ohio-5366, ¶ 8. “Thus, suits against the state are inherently 

limited by the type of action asserted against it; if the cause of action is not cognizable 

as between private parties, then there can likewise be no state liability. For instance, 

actions * * * that do not sound in tort but seek recovery purely for a statutory violation 

will not necessarily lie against the state—particularly if the statute in question provides 

no private right of action.” Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 

2002-Ohio-4210, 773 N.E.2d 1018, ¶ 37. 

{¶8} Plaintiff seeks to recover damages based on defendant’s alleged failure to 

abide by its statutory and regulatory responsibilities with regard to surveying retail food 

establishment programs administered by boards of health. Plaintiff has not 
Case No. 2018-01543JD -4- ENTRY 

demonstrated, however, that the applicable statutes or regulations create a private right 

of action. In the absence of a statutory basis for this lawsuit, plaintiff does not have a 

viable claim for money damages against the state. See Vos v. Ohio Environmental 

Protection Agency, 10th Dist. Franklin No. 17AP-749, 2018-Ohio-2956, ¶ 11. 

{¶9} Defendant also argues that even if plaintiff’s complaint could be 

interpreted to state a cognizable claim for relief, defendant is immune from liability since 

any such claim would involve defendant’s performance or nonperformance of a “public 

duty.” “Generally, the state is ‘immune from liability in any civil action or proceeding 

involving the performance or nonperformance of a public duty.’” Lawrence v. Meridian 

Senior Living, L.L.C., 2016-Ohio-8500, 79 N.E.3d 1158, ¶ 8 (10th Dist.), quoting 

R.C. 2743.02(A)(3)(a). As defined in R.C. 2743.01(E)(1), “‘[p]ublic duty’ includes, but is 

not limited to, any statutory, regulatory, or assumed duty concerning any action or 

omission of the state involving any of the following: (a) Permitting, certifying, licensing, 

inspecting, investigating, supervising, regulating, auditing, monitoring, law enforcement, 

or emergency response activity * * *.” 

{¶10} Pursuant to R.C. 3717.11, defendant has a duty to conduct surveys of 

boards of health “for the purpose of determining whether the board is qualified and has 

the capacity to administer and enforce this chapter and the rules adopted under it and to 

abide by the Ohio uniform food safety code.” As a matter of law, this supervisory duty 

on the part of defendant is owed to the general public rather than any particular 

individual and defendant is therefore immune from liability in any civil action involving 

the performance or nonperformance of such duty, pursuant to the public duty rule set 

out in R.C. 2743.02(A)(3)(a). See Benick v. Dept. of Health, Ct. of Cl. No. 2018-

01165JD, 2019-Ohio-3693, ¶ 13 (involving duty to survey health districts under 

R.C. 3718.07). Moreover, the complaint does not put forth factual allegations sufficient 

to establish the “special relationship” exception to the public duty rule under 
Case No. 2018-01543JD -5- ENTRY 

R.C. 2743.02(A)(3)(b). See Estate of Tokes v. Dept. of Rehab. & Corr., 10th Dist. 

Franklin No. 18AP-723, 2019-Ohio-1794, ¶ 36-37. 

{¶11} Finally, to the extent that the complaint may be construed as a collateral 

attack upon defendant’s administrative determination under R.C. 3717.11 and Ohio 

Adm.Code 901:3-4-17, the court of claims “generally lacks appellate jurisdiction over 

administrative decisions.” Hulbert v. Ohio Bur. of Workers’ Comp., 10th Dist. Franklin 

No. 14AP-374, 2014-Ohio-3937, ¶ 7. And, with respect to plaintiff’s claim that 

defendant violated the rights of the Amish, ordinarily a non-attorney pro se litigant may 

only represent his or her own legal interests. See Hamilton v. Ohio Dept. of Health, 

2015-Ohio-4041, 42 N.E.3d 1261, ¶ 29 (10th Dist.); State ex rel. Manning v. Adult 

Parole Auth., 10th Dist. Franklin No. 15AP-1050, 2016-Ohio-7946, ¶ 15. 

{¶12} Based upon the foregoing, defendant’s motion for judgment on the 

pleadings is GRANTED and judgment is rendered in favor of defendant. All previously 

scheduled events are VACATED. 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. 

 

 PATRICK M. MCGRATH 

Judge 

Filed December 30, 2019 

Sent to S.C. Reporter 1/24/20