[Cite as Abercrombie v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-5606.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Steven Abercrombie, : 

 

 Plaintiff-Appellant, : No. 16AP-744 

 (Ct. of Cl. No. 2015-00946) 

v. : 

 (REGULAR CALENDAR) 

Ohio Department of Rehabilitation : 

and Correction, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on June 29, 2017 

 

On brief: Steven Abercrombie, pro se. 

On brief: Michael DeWine, Attorney General, Frank S. 

Carson, and Howard H. Harcha, IV, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

BROWN, J. 

{¶ 1} This is an appeal by plaintiff-appellant, Steven Abercrombie, from an entry 

of the Court of Claims of Ohio granting summary judgment in favor of defendantappellee, Ohio Department of Rehabilitation and Correction ("ODRC") on appellant's 

claim of false imprisonment. 

{¶ 2} On November 5, 2015, appellant filed a pro se complaint against ODRC in 

the Court of Claims, alleging a cause of action for wrongful imprisonment. According to 

the complaint, appellant was convicted in Summit County in 2008 of one count of 

robbery and a repeat violent offender ("RVO") specification, and the trial court sentenced 

him to a five-year term of imprisonment (i.e., a four-year term for the robbery conviction, 
No. 16AP-744 2 

to be served consecutive to a one-year term for the RVO conviction). The complaint 

alleged that appellant had served his five-year term as of March 5, 2013, but that ODRC 

refused to release him from incarceration. ODRC filed an answer, admitting that 

appellant was an inmate in its custody during the relevant times of the complaint but 

denying that his prison term had expired. 

{¶ 3} On February 5, 2016, appellant filed a motion for leave to file an amended 

complaint to change his claim of wrongful imprisonment to a claim of false 

imprisonment. By entry filed March 1, 2016, the Court of Claims granted appellant's 

motion for leave to amend the complaint. 

{¶ 4} On March 15, 2016, ODRC filed a motion for summary judgment. In the 

accompanying memorandum in support, ODRC argued that, despite appellant's claim 

that his five-year prison term imposed in Summit County expired on March 5, 2013, he 

was still lawfully incarcerated on other charges. Specifically, ODRC asserted that 

appellant was on parole at the time he committed the robbery offense in Summit County 

and that the earlier "sentences from which he was paroled were reinstated" following his 

return to the custody of ODRC. In support of summary judgment, ODRC submitted the 

affidavit of an ODRC employee who averred in part that one of the prior sentences 

(imposed in Cuyahoga County) had a maximum expiration date of October 27, 2019. 

{¶ 5} On April 6, 2016, appellant filed a memorandum contra the motion for 

summary judgment. By entry filed October 5, 2016, the Court of Claims granted summary 

judgment in favor of ODRC. 

{¶ 6} On appeal, appellant, pro se, sets forth the following four assignments of 

error for this court's review: 

ASSIGNMENT OF ERROR ONE: 

Trial court committed prejudicial error when the court 

granted summary judgment in favor of defendant when a 

genuine issue of material fact remain to be litigated in 

violation of Civ.R. 56. 

ASSIGNMENT OF ERROR TWO: 

Trial court committed prejudicial error when the court 

granted summary judgment in favor of defendant upon 
No. 16AP-744 3 

inadmissible evidence to support defendant judgment motion 

violation of Civ.R. 56(E). 

ASSIGNMENT OF ERROR THIRD: 

Trial court committed prejudicial error in granting ODRC 

defendant summary judgment motion Civ.R. 56(B)(E) 

without giving plaintiff the opportunity to conduct discovery 

matters Civ.R. 56(F). 

ASSIGNMENT OF ERROR FOURTH 

Trial court committed prejudicial error in denying the plaintiff 

motion for court ordered of compelling discovery matters 

against the defendant Civ.R. 37(A)(2)(3)(D). 

{¶ 7} Under his first assignment of error, appellant challenges the Court of 

Claims' grant of summary judgment in favor of ODRC. Appellant maintains a genuine 

issue of material fact remains as to whether ODRC had the authority to incarcerate him 

after March 5, 2013, on the basis of his prior Cuyahoga County conviction and sentence. 

{¶ 8} Pursuant to Civ.R. 56, summary judgment is proper when: "(1) no genuine 

issue as to any material fact exists, (2) the party moving for summary judgment is entitled 

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the 

non-moving party, reasonable minds can only reach one conclusion which is adverse to 

the non-moving party." Lee v. Cleveland, 151 Ohio App.3d 581, 2003-Ohio-742, ¶ 16 (8th 

Dist.). This court's review of an appeal from summary judgment is de novo. Id. 

{¶ 9} Under Ohio law, "[f]alse imprisonment occurs when a person confines 

another intentionally ' "without lawful privilege and against his consent within a limited 

area for any appreciable time, however short." ' " Bennett v. Ohio Dept. of Rehab. & 

Corr., 60 Ohio St.3d 107, 109 (1991), quoting Feliciano v. Kreiger, 50 Ohio St.2d 69, 71 

(1977), quoting 1 Harper & James, The Law of Torts, Section 3.7, at 226 (1956). Under the 

provisions of R.C. 2743.02(A)(1), "the state may be held liable for the false imprisonment 

of its prisoners." Bennett at paragraph two of the syllabus. However, " 'an action for false 

imprisonment cannot be maintained where the wrong complained of is imprisonment in 

accordance with the judgment or order of a court, unless it appear[s] that such judgment 

or order is void.' " Id. at 111, quoting Diehl v. Friester, 37 Ohio St. 473, 475 (1882). 
No. 16AP-744 4 

{¶ 10} In support of its motion for summary judgment, ODRC submitted the 

affidavit of Shannon Castlin, a "Correctional Records Sentence Computation Auditor of 

the Bureau of sentence Computation." In the affidavit, Castlin averred she had personally 

reviewed appellant's ODRC files relating to his sentence and length of incarceration with 

ODRC. Castlin further averred the following: 

4. In 1994, Plaintiff Steven Abercrombie was incarcerated in 

the State of Michigan. Due to a capias issued by the Cuyahoga 

Court of Common Pleas, the State of Michigan extradited 

Plaintiff Abercrombie to Ohio to face charges in Cuyahoga 

County. Mr. Abercrombie then remained in Ohio to face 

charges in a Summit County case, a Medina County case and 

another Summit County case. After sentencing in all such 

cases, Mr. Abercrombie was then sent back to Michigan to 

serve out the remainder of his term, which based on all 

sentencing orders, was to run concurrent to his Ohio 

sentences. 

5. On November 2, 1994 Plaintiff Steven Abercrombie was 

convicted of aggravated robbery in Cuyahoga County Case No. 

CR297040, and sentenced to 7 to 25 years (with 113 days 

credited for time served prior to his confinement with ODRC, 

or "jail time credit"). Also on November 2, 1994, Mr. 

Abercrombie was convicted of aggravated robbery in 

Cuyahoga County Case No. CR295116, and sentenced to 7 to 

25 years (with 113 days of jail time credit). These Cuyahoga 

County sentences were to be served concurrent to each other 

and concurrent to sentences Plaintiff Abercrombie had 

received in the state of Michigan, giving Mr. Abercrombie an 

aggregate sentence of 7 to 25 years (with 113 days credited for 

time served in county jails prior to his confinement with 

ODRC ("jail time credit") for a maximum sentence expiration 

of October 27, 2019 (25 years from February 23, 1995 * * * 

minus 113 days). 

6. On February 22, 1995, Mr. Abercrombie was convicted of 

five counts of robbery in Summit County Court of Common 

Pleas Case No. CR93010140, and sentenced to 5 to 15 years 

(with 146 days of jail time credit) on each of the 5 counts, to be 

served concurrently to each other and concurrent to his 

Cuyahoga County and Michigan sentences. Because Mr. 

Abercrombie's [S]ummit [C]ounty sentence was less than his 

Cuyahoga sentence, the Cuyahoga sentence was the 

controlling sentence. Therefore, after this conviction, Mr. 
No. 16AP-744 5 

Abercrombie's maximum sentence expiration remained at 

October 27, 2019. 

7. Mr. Abercrombie was conveyed into the custody and 

control of ODRC on February 23, 1995 after his sentencing in 

the first of the Summit County cases. 

8. Additional charges against Plaintiff Abercrombie were 

pending in Medina County Case No. 93CR0336. 

Consequently, on March 17, 1995, Mr. Abercrombie was 

transported to court to face the Medina County charges, 

where he was convicted of 2 counts of robbery and sentenced 

to 5 to 15 years (0 days of jail time credit) on each of the two 

counts, to be served concurrent to each other and concurrent 

to his other sentences. Thus Mr. Abercrombie's maximum 

sentence expiration remained at October 27, 2019. 

9. Additional charges against Plaintiff Steven Abercrombie 

also remained pending in Summit County as Case No. 

CR95030887. * * * After his sentencing in this Summit 

County case, Mr. Abercrombie was returned to Michigan in 

order for him to serve his required Michigan sentence. He was 

transported out of Ohio on May 15, 1995. 

Our office then received the additional Summit County 

sentence in Case No. CR95030887, which was 5 to 15 years 

(with a jail time credit of 28 days) for 1 count of robbery, to be 

served concurrent to his other sentences. At this time, Mr. 

Abercrombie's maximum sentence expiration remained at 

October 27, 2019. 

10. On December 5, 2006, Mr. Abercrombie returned from 

Michigan to serve the remainder of his Ohio sentences. 

Because all sentences were being served concurrently, his 

maximum sentence expiration remained unchanged at 

October 27, 2019. 

11. On August 20, 2007, Mr. Abercrombie was paroled, only to 

return to prison on July 14, 2008 for robbery charges related 

to an incident that occurred while Mr. Abercrombie was on 

parole. As a result, Mr. Abercrombie was convicted of robbery 

in Summit County Case No. CR08030965. He was sentenced 

to 4 years with a 1 year sentence for a Repeat Violent 

Offender, such 4 year and 1 year terms to be served 

consecutively to each other, for a total of 5 years (with jail 

time credit of 116 days). This new aggregate sentence of 5 
No. 16AP-744 6 

years was to be served concurrently to all other convictions as 

described above. 

12. Because Mr. Abercrombie committed this crime while on 

parole, the sentences from which he was paroled are 

reinstated once he returns to the custody of ODRC. All 

sentences, including this new one, were to be served 

concurrently. Therefore, upon returning to prison, Plaintiff 

Steven Abercrombie's maximum sentence expiration date 

once again became October 27, 2019 and remains as such to 

this date. 

(Emphasis sic.) 

{¶ 11} Attached to the affidavit were various exhibits, including copies of the 

sentencing entries in Cuyahoga County case Nos. CR-297040 and CR-295116; those 

entries indicate the court sentenced appellant to terms of incarceration of 7 to 25 years in 

each case, to be served concurrent to each other and "concurrent with sentences in [the] 

state of Michigan." 

{¶ 12} In its decision granting summary judgment in favor of ODRC, the Court of 

Claims held in part that ODRC "was legally justified to confine [appellant] at all relevant 

times. There is no evidence presented by [appellant] to indicate that the court documents 

are invalid. [Appellant's] mere statements that the sentencing entry by Cuyahoga County 

is invalid does not invalidate the entry." 

{¶ 13} Based on this court's de novo review, we find no error by the Court of 

Claims. As set forth above, the record on summary judgment includes the affidavit of 

Castlin, an ODRC correctional records sentence computation auditor, who averred that 

appellant was convicted of aggravated robbery in Cuyahoga County on November 2, 1994, 

resulting in a sentence of 7 to 25 years and a maximum sentence expiration date of 

October 27, 2019. The affidavit further averred that appellant was paroled in August 

2007, but that he was convicted in 2008 of robbery and a RVO specification, resulting in 

imposition of a five-year sentence; further, because appellant was on parole at the time of 

the 2008 offense, the sentences from which he was paroled were reinstated, and his 

"maximum sentence expiration date once again became October 27, 2019 and remains as 

such to this date." 
No. 16AP-744 7 

{¶ 14} In his memorandum contra ODRC's motion for summary judgment, 

appellant submitted his own affidavit in which he asserted that the sentencing entry in the 

Cuyahoga County case "is void on its face where the sentencing entry is used by the 

defendant to continue the plaintiff['s] imprisonment." Appellant's conclusory allegation 

that the sentencing entry in the Cuyahoga County case is void is without support from the 

record. Rather, based on a review of the documents and materials submitted as part of 

the record on summary judgment, we agree with the Court of Claims' determination that 

there is no evidence that any of the sentencing entries at issue are invalid. Accordingly, 

the Court of Claims did not err in finding ODRC submitted sufficient evidence to support 

its motion for summary judgment and that appellant failed to raise a genuine issue of 

material fact. 

{¶ 15} Appellant's first assignment of error is without merit and is overruled. 

{¶ 16} Under his second assignment of error, appellant contends the Court of 

Claims erred in utilizing inadmissible evidence to support its grant of summary judgment 

in favor of ODRC. Specifically, appellant contends the affidavit of ODRC employee 

Castlin fails to meet all the requirements of Civ.R. 56(E) by not including language 

establishing the competence of the affiant. 

{¶ 17} As noted by ODRC, however, appellant never challenged the affidavit of 

Castlin on the basis of failure to comply with Civ.R. 56(E) in its filings before the Court of 

Claims. Under Ohio law, the "[f]ailure to move to strike or otherwise object to 

documentary evidence submitted by a party in support of, or in opposition to, a motion 

for summary judgment waives any error in considering that evidence under Civ.R. 56(C)." 

Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App.3d 78, 83 (8th Dist.1987). 

See also Nationwide Mut. Fire Ins. Co. v. Wittekind, 134 Ohio App.3d 285, 289 (4th 

Dist.1999) (appellant's failure to object to affidavit attached to motion for summary 

judgment constituted waiver of any alleged error); Chase Bank USA, NA v. Lopez, 8th 

Dist. No. 91480, 2008-Ohio-6000, ¶ 16 (appellant could not raise for first time on appeal 

a claim that affidavit attached to motion for summary judgment did not meet the 

requirements of Civ.R. 56(E)). Here, because appellant failed to move to strike this 

evidence or otherwise object, the Court of Claims, "in its discretion," could review the 
No. 16AP-744 8 

affidavit and documentary evidence. Stegawski at 83. Accordingly, appellant has waived 

any purported error by the Court of Claims in considering those materials. 

{¶ 18} Appellant's second assignment of error is without merit and is overruled. 

{¶ 19} Appellant's third and fourth assignments of error are interrelated and will 

be considered together. Under these assignments of error, appellant contends the Court 

of Claims erred in (1) granting summary judgment in favor of ODRC without giving him 

the opportunity to conduct discovery under Civ.R. 56(F), and (2) in denying his motion to 

compel discovery. 

{¶ 20} By way of background, the trial court set the initial discovery cut-off date as 

August 12, 2016. On March 2, 2016, ODRC gave notice of service of its responses to 

appellant's first set of requests for production of documents. On March 23, 2016, 

appellant filed a request for an extension of time to respond to ODRC's motion for 

summary judgment, which the Court of Claims granted. On April 6, 2016, appellant filed 

a motion to continue discovery matters, seeking an extension of time to obtain "all parole 

release paper work." By entry filed May 12, 2016, the Court of Claims granted appellant's 

motion, affording him until June 10, 2016 to file a supplemental memorandum in 

opposition and any supporting evidence. The court also rescheduled the non-oral hearing 

on ODRC's motion for summary judgment for June 17, 2016. On June 13, 2016, appellant 

filed a motion for leave to file a third motion for an extension of time to file a 

supplemental memorandum in opposition to ODRC's motion for summary judgment. 

Appellant again indicated he was seeking "parole release paperwork." By entry filed 

July 6, 2016, the Court of Claims granted appellant leave until August 1, 2016 to file his 

supplemental memorandum in opposition. 

{¶ 21} On July 28, 2016, appellant filed a motion to compel discovery responses 

and a motion to stay the non-oral hearing on ODRC's motion for summary judgment. In 

his motion to compel, appellant argued that ODRC had "placed redacted fraudulent 

document in the record to evade the truth to make it appear the plaintiff was [on] parole 

on the 7 to 25 years imposed by the Cuyahoga County Common Pleas Court case No. CR297040." ODRC subsequently filed a memorandum contra appellant's motions. In 

responding to the motion to compel, ODRC maintained it had responded to the discovery 

requests, and that the redacted portions of the documents it provided were privileged. By 
No. 16AP-744 9 

entry filed September 19, 2016, the Court of Claims denied appellant's motion to compel 

discovery. The court found that ODRC adequately responded to appellant's discovery 

requests by providing the redacted documents, and that the additional documents 

appellant sought in his June 30, 2016 letter were "irrelevant to his claims." 

{¶ 22} Under Ohio law, "[t]rial courts possess broad discretion over the discovery 

process," and an appellate court reviews a trial court's decision on a discovery matter for 

an abuse of discretion. MA Equip. Leasing I, LLC v. Tilton, 10th Dist. No. 12AP-564, 

2012-Ohio-4668, ¶ 13. 

{¶ 23} Upon review, we find no error by the Court of Claims in its determination 

that ODRC complied with discovery requests by providing requested documents in 

redacted form. Nor do we find error with the court's determination that certain requested 

documents were irrelevant to the claim, i.e, that the documentation was not relevant to 

the validity of the original sentencing order. The record indicates that appellant, based on 

an attachment filed as part of his motion to compel, sought various additional documents 

from ODRC including an "Informal Complaint Resolution," a "Notification of Grievance," 

a "Disposition of Grievance," an "Appeal to The Chief Inspector," "Ohio Parole Board 

Decisions," and certain "release paperwork." Here, the Court of Claims did not abuse its 

discretion in failing to issue an order to compel ODRC to provide information the court 

determined to be not relevant. See BancOhio Natl. Bank v. Cardinal Constr. Co., 10th 

Dist. No. 89AP-1510 (Feb. 7, 1991) (trial court did not err in refusing to compel plaintiff to 

comply with defendant's discovery requests where matters were irrelevant to the issues in 

case). 

{¶ 24} Appellant's contention that the Court of Claims erred in failing to provide 

him the opportunity to conduct discovery is not persuasive. The record indicates the 

Court of Claims granted appellant's requests for three time extensions to respond to the 

motion for summary judgment, and appellant failed to demonstrate that further discovery 

would have uncovered additional evidence to create a genuine issue of material fact. 

Thus, the Court of Claims did not abuse its discretion in granting summary judgment in 

favor of ODRC without affording him the opportunity to conduct additional discovery. 

{¶ 25} Accordingly, appellant's third and fourth assignments of error are without 

merit and are overruled. 
No. 16AP-744 10 

{¶ 26} Based on the foregoing, appellant's four assignments of error are overruled, 

and the judgment of the Court of Claims of Ohio is hereby affirmed. 

Judgment affirmed. 

TYACK, P.J., and LUPER SCHUSTER, J., concur. 

______________________