[Cite as Henderson v. Ohio Dept. of Rehab. & Corr. , 2021-Ohio-2409.]

{¶1} On February 8, 2021, defendant filed a motion for summary judgm ent pursuant to Civ.R. 56(B). Plaintiff filed a combined response and cross-motion for summary judgment on March 1, 2021. Defendant filed a response on March 22, 2021. The motions are now before the court for a non-oral hearing pur suant to L.C.C.R. 4(D). {¶2} Civ.R. 56(C) states, in part, as follows: {¶3} “Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, af fidavits, transcripts of evidence, and written stipulations of fact, if any, timely file d 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 stip ulation, that reasonable

minds can come to but one conclusion and that conclusion is adv erse to the party against whom the motion for summary judgment is made, that part y being entitled to have the evidence or stipulation construed most strongly in the party’s favor.” See also Gilbert v. Summit Cty. , 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6, citing Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 364 N.E.2d 267 (1977). {¶4} Plaintiff brings this action for false imprisonment claiming th at defendant held him as an inmate in its custody beyond the expiration of h is lawful term of PAUL HENDERSON

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant Case No. 2020-00230JD

Judge Patrick E. Sheeran Magistrate Robert Van Schoyck

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENTCase No. 2020-00230JD -2- ENTRY

confinement. Plaintiff alleges that on or about June 13, 2010, the Cuyahoga County Common Pleas Court sentenced him to a nine-year prison sentence , but defendant wrongfully calculated his release date by applying a separate t hree-year sentence imposed in another criminal case to run consecutively. Plainti ff alleges that his lawful term of confinement expired sometime before he filed his compla int and that defendant’s continued confinement of him constitutes false impr isonment. {¶5} “False imprisonment occurs when a person confines another inten tionally ‘without lawful privilege and against his consent within a limi ted area for any appreciable time, however short.’” Bennett v. Ohio Dept. of Rehab. & Corr ., 60 Ohio St.3d 107, 109, 573 N.E.2d 633 (1991), quoting Feliciano v. Kreiger , 50 Ohio St.2d 69, 71, 362 N.E.2d 646 (1977). “Pursuant to R.C. 2743.02(A)(1), the state may be held liable for the false imprisonment of its prisoners.” Id. at paragraph two of the syllabus. “To prevail on a claim for false imprisonment against the state, a person must b e able to demonstrate: ‘(1) expiration of the lawful term of confinement, (2) intentio nal confinement after the expiration, and (3) knowledge that the privilege initially just ifying the confinement no longer exists.’” Brandon v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 20AP211, 2021-Ohio-418, ¶ 17, quoting Wash v. Ohio Adult Parole Auth ., 10th Dist. Franklin No. 19AP-830, 2020-Ohio-3385, ¶ 22. {¶6} Defendant, in support of its motion for summary judgment, submi tted an affidavit from Ebony Napier, who avers that she is employed wit h defendant as a Correctional Records Sentence Computation Auditor at the Bureau of Sentence Computation. The Bureau of Sentence Computation compiles sente ncing documents and computes release dates for the inmates in defendant’s custo dy, Napier explains. Napier avers she has reviewed the records pertaining to plainti ff’s incarceration, including three records which are incorporated into her affidav it and attached thereto as Exhibits A-1 to A-3. In her affidavit, Napier states the follo wing based upon her review of defendant’s file on plaintiff:Case No. 2020-00230JD -3- ENTRY

4. On August 19, 2009, Mr. Henderson was sentenced in Case No. CR-09-520709-A after pleading guilty to trafficking offenses wi th a forfeiture specification. He was sentenced to three years of c ommunity control. (Attachment A-1) 5. On September 30, 2009, Mr. Henderson was found to have violated his community control sanctions. Accordingly, his com munity

control was revoked and he was sentenced in Case No. CR-09-5207 09-A “to the Lorain Correctional Institution for a term of 3 year(s) ”. (Attachment A-2) 6. At that time, Mr. Henderson also had 91 days of jailtime cr edit. 7. Mr. Henderson was admitted to the Ohio Department of

Rehabilitation and Correct ion on October 6, 2009. 8. On July 16, 2010, Mr. Henderson was sentenced in Case No. C R09-530899-A after a jury found him guilty of the following crim es: Count 1: trafficking offenses with forfeiture specification. Count 2: drug possession with forfeiture specification. Count 3: possessing criminal tools with a forfeiture specificat ion. He was sentenced to “a prison sentence at the Lorain Correction al Institution of 9 year(s). Counts 1 and 2 merge- State elects t o sentence Defendant on Count 1, consecutive to any other sentence. 8 yea rs on Count 1; 12 months on Count 3. Counts run consecutive to each other for a total of 9 years.” (Attachment A-3) 9. While he was incarcerated, Mr. Henderson has earned twelve days

of earned credit. 10. While incarcerated, Mr. Henderson has also completed the HB 49 credit program and received an additional 90 days off of his re lease date.Case No. 2020-00230JD -4- ENTRY

11. Given Mr. Henderson’s three-year sentence in Case No. CR-09

- 520709-A and his nine-year sentence in Case No. CR-09-530899-A which is to be run “consecutive to any other sentence,” and consideri ng his jailtime credit, earned credit, and the time earned under the H B 49 program, Mr. Henderson’s release date is March 23, 2021. {¶7} Plaintiff’s combined response and cross-motion devotes consider able attention to this court’s denial of his motion filed June 18, 2 020, regarding his request to take judicial notice and issues related to requests for admissi ons under Civ.R. 36. Plaintiff’s motion from June 18, 2020, was addressed by the mag istrate’s order from September 21, 2020, and by the court’s entry from December 31, 2020, and will not be reconsidered here. Regarding the false imprisonment claim, pla intiff argues that the Cuyahoga County Common Pleas Court erred in sentencing him to s erve his sentences consecutively, in violation of R.C. 2929.41(A) and R.C. 2929.14 . Plaintiff argues that the sentencing entry from that court was “contrary to law” and that the trial judge “in error ordered the sentences to be served consecutively * * *.” Plaintiff’s Motion, pp. 1-2. Although plaintiff refers to the sentences as being “void” in l ight of these alleged errors, he does not contend that the sentences were ever duly challenge d and voided. Additionally, plaintiff attaches several documents to his combi ned response and crossmotion that appear to be records from his criminal case(s), but they are not properly authenticated pursuant to Civ.R. 56 and thus cannot be consider ed. Most importantly, plaintiff fails to point to any evidence that would create a ge nuine issue of material fact with the affidavit testimony provided by defendant. {¶8} In opposition to plaintiff’s summary judgment motion, defendant reasserts its lawful privilege to confine plaintiff for the duration of both his three-year sentence in Case No. CR-09-520709-A and the aggregate nine-year sentence in Case No. CR-09- 530899-A, which was to be served “consecutive to any other sent ence.” Further, defendant argues that plaintiff fails to point to any specific facts that would create aCase No. 2020-00230JD -5- ENTRY

genuine issue of material fact, much less entitle plaintiff to summary judgment. Finally, defendant argues that the evidence provided, specifically the a ffidavit of Ebony Napier, clearly establishes that plaintiff cannot prove his claim that he was falsely imprisoned. {¶9} While plaintiff claims in his complaint to have been falsely im prisoned as a result of defendant improperly calculating the expiration of hi s sentence, the uncontroverted affidavit testimony presented by defendant demon strates that its confinement of plaintiff was at all times based upon the senten cing orders of the Cuyahoga County Common Pleas Court and his lawful term of confi nement under those orders did not expire until March 23, 2021. Napier’s affidavit establishes that defendant would release plaintiff on that date and there is nothing in th e record to suggest that defendant did not do so. To the extent plaintiff argues there was some error made by the sentencing court, “the statute governing actions in the Cou rt of Claims, R.C. 2743.02, was not intended to confer jurisdiction for the Court of Claims to review criminal proceedings occurring in the court of common pleas.” Hughley v. Ohio Dept. of

Rehab. & Corr. , 10th Dist. Franklin No. 09AP-562, 2010-Ohio-1768, ¶ 6. {¶10} Based upon the foregoing, the court concludes that there are no genuine issues of material fact and that defendant is entitled to judgm ent as a matter of law. As a result, plaintiff’s motion for summary judgment is DENIED. D efendant’s motion for summary judgment is GRANTED and judgment is hereby rendered in favor of defendant. All previously scheduled events are VACATED. Court costs are assessed against plaintiff. The clerk shall serve upon all parties noti ce of this judgment and its date of entry upon the journal.

PATRICK E. SHEERAN Jud g e Filed May 17, 2021 Sent to S.C. Reporter 7/14/21