[Cite as Sammour v. Ohio Bur. of Workers' Comp. , 2023
- Ohio
- 2841.]

IN T HE COURT OF CLAIMS OF OHIO

{¶1} Bef ore the C o urt is Defendant ’ s Moti on for Sum mary Judgment , to which P laintiff did n ot respond. Fo r the following reasons, Defendant ’ s Motion is GRANTED

. {¶2} Motions for summary judgment are reviewed under the stan dard set forth in Civ.R . 56(C), which states, in part: S umm ary judgment shall be rendered fo rthwit h if the pleadings, depositions , a nswers to interrog at ories, written admis sion s, affidavits, transcrip ts of evidence, and written stipulations of fact, if any , tim ely filed in the a ction, show that there is no genu ine issue as to any mate rial fact an d that the moving party is entitled t o s ummary judgment as a matter of law. No evid ence or stipulation may be considered except as stated in this rule. A summary judgm ent shall not be r endered unless it appears from th e
e vidence or stipulatio n, and only from t he evidence or stipulation, tha t
r easonable minds ca n come to but one conc lusi on and that conclusion i s adverse to the party against whom the motion for summa ry ju dgment is made, th at party being entitled to have t he evidence or stipulati on construed most strongly in the party’s favor. “[T ]he moving party b ea rs the initial respo nsib ility of informing the t rial court of the basis for the motion, and identifying those portions of the r ecord before the trial court whic h d emonstrate the absenc e of a genui ne iss ue of material fact on a materi al element of the IBRAHIM A. SAMMOUR
Plaintiff

v. OHIO BUREAU OF WORKERS' COMPENSATION
Defendant Case No. 2021

- 00266JD Judge Lisa L. Sadler Magistrate Scott Sheets
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENTCase No. 2021

- 00 266JD

- 2

- ENTRY

non mo ving party’s claim.” Dr esher v. Burt

, 75 Ohio S t.3d 280, 292 , 662 N.E.2d 264 (1996) . To meet this initial burden, the moving party must be able to point to ev identiary materials of t he type listed in Civ.R. 56( C). I d . at 292

- 293

. {¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part: When a mo tion for summary ju dgment is made and supported a s provid ed in this rule, an adverse party may not rest up on the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set fo rth specific facts showing that t here is a genuin e issue for trial. If the party does not so respond, summ ary judgment, if appropriate, shall be entered ag ainst the party. {¶4} Plaintiff , who is self

- repre sented, appears to assert two claims for m alicious prose cution in his Compl aint

. M ore s p ecificall y, Plainti ff asserts that Defendant inv estigated him for frau d re lated to w orkers ’ compe nsation benefits but that , af ter both an administrative hearing and appeal, n eith er hearing officer made a findin g of frau d. Complaint ¶ 12

. He also alleges that Defe ndant initiated a crimin al prosecution against him, Case No. C R

- 20

- 65417 6

- A , in the Cuyahoga County Comm on Pleas Cou rt

. 1 Id. ;
see Complaint Exh i bi ts

. 2 Plaintiff further alleges that Defendant ’ s actions led to his inabili ty to get treatment for his work in jury , a su icide attem pt , the lo ss of his job, and the sale of his house . H e s ee ks $ 1 million in damages

. Id. ¶ ¶ 1 3

- 14

. In his C omplaint, Plainti ff twice ref e re nces the date of March 14, 2020, once in describing the date and time when his dama ges occurre d and agai n when he references the date of the criminal offense that formed th e basis of Case No. CR

- 20

- 654176

- A

. Id. {¶5} In support of its M otio n for S umm ary J udgm ent, D efe ndant submitted the affidavit of Phillip J. Brick man , who is currently empl oyed as Ass istant Dir ector b ut wh o previously supervised agents inve stiga ting fraud on De fen dant ’ s behalf

. Defendant ’ s Exhibit B , Affi d avit of Ph illip J. Brickman , ¶ ¶ 1; 3. Defendant a lso attached the journal

1 Plaintiff file d his Complaint i n th is case p rior to enter ing a guilt y plea in Case No. CR

- 20

- 654176

- A

. See Complaint (filed on May 12, 2021) ; Defendant ’ s Exhibit A (guilt y plea entered on May 25 , 2022)

.

2 Plaintiff ’ s Complaint was filed on May 12, 2021, but exh i bits were filed separ atel y on May 1 8, 2 021

.Case No. 2021

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entry for Pla intiff ’s plea agreement in Case No. CR

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- 6 54176

- A as Exhibit A to its Motion

. Exhibit A sho ws that Plaintiff was ind icted on two counts of aggravated mena cing and one count of retaliation, but Plaintiff resolved the case by entering a plea of guilty to
o ne count of the lesser included offense of obstructing official business. W h ile it is not among the materials listed in Ci v.R. 56(C) and is not authent ica ted v ia affidavit , the Court takes judicial notice of Plaintiff ’ s guilty plea in his related criminal c ase

. 3 {¶6} T he following facts are establ ished by Brickman ’ s affidavit. Defendant investi gated allegat ions of fraud agai nst Plaintif f , whi c h were reviewed by the Indu str ial Commis sion

. Defendant ’ s Exhib it B ¶ ¶ 3

- 4

. Though the Industrial Commission found an overp ayment to Plaintiff , it di d not find fraud. Id. ¶ 4

. Af ter the conclusion of th e workers ’ compensation inves tigation , Plaint iff c ont acted Defe ndant and ma de threats against its employees and their families

. Id. ¶ ¶ 5

- 7

. The threats were reported t o the Ohio State Highway Patrol , wh ich inve stigated the threats

. Id. ¶ 8

. A s a res ult, the Cuyahoga County Prosecu tor ’s Offi ce pros ecute d Plaintiff in Case No. CR

- 20

- 654176

- A in th e C uyahoga County Court of Common Pleas. Id. ¶ ¶ 8

- 9

. Plaintiff eventuall y entered a guilty plea in that case

. Id. ¶ 10 ; Defendant ’ s Ex hibit A

. Plaint iff has not challenged the facts set forth in Brickman ’ s affid avi t. {¶7} In seeking summary judgment , Defendant asserts that Plaintiff ca nnot establish the elements of malicious crim inal prosecution

. “ [M ] alicious prosecution involves the misuse of the criminal and civil proce ss. ” Lacey v. Ohio Auditor of State , 10th Dist. Franklin No. 19AP

- 110, 2019

- Ohi o - 4266, ¶ 1 4

. “ T he tort of malicious criminal p rosecuti on protects a criminal de f endant’s right to r ecover damag es caused by misuse
o f criminal actions. ” Petty v. Kroger Food & Pharmac y , 10th Dist. Frankl in No. 07AP

- 92, 2007

- Ohio

- 5098, ¶ 19

. Moreover, “ [t] he tort of malicious prosecution i n a crimina l settin g requires proof of three essential elements: ‘(1) malice in instituting or co ntinuing the

3 A court can take judicial no tice of “ pleadings and orders in related cases w hen these are not su b ject t o r easonabl e dispute, at leas t in so far as they affect the present origin al action ” and which, in addition to being maintained by a clerk, a re publicly accessible via a c ourt’s onl ine case information system

. Evid. R. 201; S ee S tate ex rel. Nyamus e vya v. Hawkin s , 10th Dist. No. 19AP

- 199, 20 20

- Ohio

2690, ¶¶ 12; 33 ; S tate ex rel . Ohio Republican Party v. Fitzgerald , 145 Ohio St.3d 92, 2015

- Oh io

- 5056, ¶ 18; Draughon v. Jenkins , 4th Di st. Ross No. 16CA3528, 2016

- Ohio

- 5364, ¶ 26, citing State ex rel. Ev e rhart v. McIn tosh , 11 5 Ohio St.3d 195, 2007

- Ohio

- 4798, ¶ ¶ 8, 10; Woods Cove III, LLC v. Straight, 10th Dist. Franklin No. 17AP

- 340, 2018

- O hio

- 290 6, ¶ ¶ 22

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prosecution, (2) lack of prob able cause, and (3) ter minatio n of the prosecution in favor of the accused.’ ” F

roehlich v

. Ohio Dept. of Mental Heal t h , 114 Ohi o St.3d 286, 2007

- Ohio

4161, 871 N .E.2d 1159, ¶ 10, q uoting Truss ell v. Gen. Motors Co rp

. , 53 Ohio St.3d 142, 146, 559 N.E.2d 73 2 (1990)

. {¶8} A “ proc eeding is ‘te rminated in favor of the accused ’ only when its fi nal dispo s ition indica t es that the accused is innocent. ” Ash v. Ash , 72 Ohio St. 3 d 520, 522 , 651 N.E .2d 945 (199 5). It generally req uires “an unconditional, unil ateral dismis sal o f criminal charges or an a bandonment of a prosecution by the prosecutor or the compla inin g witness that results in the discharge of the accused. ” Id. T erm i nati on of pro secuti on “by reaso n of a voluntary sett lement o r agreement of compromise with the accused is not indi cative of guil t or innocence and, therefore, is not a termin ation in f avor of the accused. ” Id. The Court also notes that, “ [t]he plea o f g u ilty is a com plete ad mission
o f the [criminal] defe n dant ’s guilt. ” See Crim. R. 11(B) (1). {¶9} T he Court finds th at Plaintiff cannot esta blish the third element o f a malicious criminal pr osecution claim that the criminal charges against him were terminated in favor of the accus ed . Thus, Defendan t is entitled to judgment as a matter of law and summary judgment in its favor on any malicious prosecution claim pre mised on his p rosecution in Case No. CR

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- 654176

- A

. Because Plaintiff ’ s failure t o satisfy the th ird eleme nt of malicious crimina l prosec ution is dispositive, the Court need not address Defen dant ’ s arguments r egarding the remaining elements of malicious criminal prosecution. {¶10} As it relates to the workers ’ compensation fraud in v estigation, Defendant
ass erts th at “ there is no evidence that the agents who investigated the underlying fraud allegations were acting ma liciously

. ” Malice “ may be evidenced by wanton and reckless refusal to make a reasonable investigation with regard to the proprie ty of prosecut ion, or by the refusal to termin ate pros ecution upon notice that it is wrongful. ” Kirk v. Edwards , 103 Ohio A pp

. 3d 187, 191 , 658 N. E. 2d 1124 (10 th Dist. 1995). In the present case, Defendant has submitted evidence that it investig ated Plaint iff based on “ allegations of fraud

. ” Defendan t ’ s Exhi bit B ¶ 4. Moreover, though the hearing officers made no finding of fra ud, they di d determine th at Defendant overpaid Plai n tiff. Id

. Thus, the evidence establishes that Defendant inves tigated Plainti ff as part of its normal practices and there i s a comp lete absen ce of evidence that Defendant or any one on its behalf a cted wa nt onlyCase No. 2021

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or recklessly

. T o the extent that Pla intiff is asserting a separate cla im b ased on the workers ’ compensation fraud i nv estigation, the Co urt finds that Plaintiff has fai led to establish the element of malice. Accordingly, the Court finds that there is no g enuine issue of ma terial fact regarding the lack of malice and, the refore, det ermines that Defendant is entitled to judgment as a matter of law on any such claim. {¶11} Lastl y, Defendant assert s that the Court lacks subject

- m atter jurisdiction ove r any con stitutional claims. The Court agre es. L acking subject

- matter jurisdiction over
cons tituti on al claims or claims arising under 42 U.S.C. § 1983 , su ch claims are not cognizab le in this court

. Bleicher v. Univ. of Cincinnati C o llege of Medicine , 7 8 Ohio App.3d 302, 307, 604 N.E.2d 783 (10th D ist.1992) ; White v. Chillicothe Corr

. Inst. , 10th Dist. F ranklin No. 92AP

- 1230, 1992 Ohio App. LEXIS 6718 ( Dec

. 29, 1992 ). In his Complain t, Plaintiff indicates, at one point, t hat the basi s of h is claim is “ Malici ous prosecution , 4 2 U SC § 1983. ” Complai nt ¶ 12. To the extent Plaintiff is attempting t o assert a federal law malicious prosecution claim under 4 2 U

. S.C. § 1983, i t will be d i sm issed for lack of sub ject

- matter jurisd iction. {¶12} Defendant has met its initial bur den , pur suant to Ci v.R. 56(C) , by showing that there are no genuine issues of materia l fact on a material element of Plaintiff ’ s claims

. Howeve r, in failing to respond to Def endant ’ s Motion for Summary Judgment, Plaintiff ha s not met his reciprocal burden , pursuant to Ci v.R. 56(E)

. {¶13} A cc ordi ngly , D efendan t’s M otion for Summ ary Judgment is GR ANTED

. Any constitutional claims are DISMISSED without pr ej udice fo r lack of subject

- m a tter jurisdic tion. Defendant is e ntitled to judgment as a matter of law on all other claims. Court costs are as sess ed against P lain tiff . The C lerk shall serve upon all pa rties notice of this judgment and its da te of entry upon the jo urnal.

LISA L. SADLER Judge

Filed Ju ly 31 , 2023 Sent to S.C. Reporter 8 / 15 / 23