Brown v. Mason et al

Filing 90

REPORT AND RECOMMENDATIONS that 88 MOTION to Reinstate Action filed by Frank C Brown, Jr. be denied. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 7/9/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Frank C. Brown,

:
Case No. 2:10-cv-0783

Plaintiff,

:

v.

:

Kelly Mason, et al.,

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

Defendants.

:

REPORT AND RECOMMENDATION
This matter is before the Court to consider Plaintiff Frank
C. Brown’s motion to reinstate the case.
have filed a response.

(Doc. #89).

(Doc. #88).

Defendants

For the following reasons,

the Court will recommend that the motion be denied.
The important facts are these.

Mr. Brown, a state prisoner,

filed this case challenging certain actions of prison officials
and also filed an indistinguishable case in the Ohio Court of
Claims.

(Doc. #67).

More specifically, Mr. Brown alleged in

both cases that certain events took place at London Correctional
Institute between March 3, 2009 and March 23, 2009 which caused
him to lose some of his legal materials and negatively affected
his ability to pursue other litigation.
On July 16, 2012, the Court granted summary judgment in
favor of Defendants.

In doing so, the Court found that, under

O.R.C. §2743.02, Mr. Brown had waived his right to pursue these
claims in this Court because he filed the complaint in the Ohio
Court of Claims arising from the same law and facts.

The Court

dismissed all of the claims against the individual Defendants
without prejudice to their reinstatement should the Ohio Court of
Claims ever determined that the waiver of the claims against
those Defendants was void.
terminated.

Consequently, this matter was

In his motion, Mr. Brown states that the Ohio Court of
Claims granted summary judgment to the defendants in that case, a
decision that he is appealing.

Mr. Brown asserts that the appeal

“will add even more delay to this action” so he “is now
requesting” this Court to reinstate the instant case and allow
him to amend his complaint “to withdraw the claims against the
named defendants in their individual capacity.”

(Doc. #88).

Defendants oppose Mr. Brown’s motion, urging that
reinstatement in this Court would only be appropriate if the Ohio
Court of Claims had determined that the waiver of the claims
against them was void.

Defendants assert that the Ohio Court of

Claims has not made such a determination, and Mr. Brown’s attempt
to reinstate the case is an attempt to question that court’s
“determination that there were no genuine issues of material fact
in dispute. . . .”

(Doc. #89 at 1).

This Court agrees with Defendants.

The Court can reinstate

Mr. Brown’s claims “as if no waiver ever occurred” only if the
Ohio Court of Claims determined that Defendants’ actions were
taken outside the scope of their employment, or with a malicious
purpose, in bad faith or in a wanton or reckless manner.

See

Thomas v. Ohio Dep’t of Rehab. and Corr., 36 F. Supp.2d 1005,
1008 n.4 (S.D. Ohio 1999); see also Turker v. Ohio Dep’t of
Rehab. and Corr., 157 F.3d 453, 458 (6th Cir. 1998)(“The
determination of whether a state employee’s actions were ultra
vires or malicious is to be made exclusively by the Ohio Court of
Claims”).

Here, Mr. Brown has failed to present this Court with

any evidence suggesting that the Ohio Court of Claims determined
that the waiver of the claims against Defendants was void.
Accordingly, Mr. Brown has waived the right to pursue any damage
claims against the defendants in this Court, and the Court lacks
jurisdiction to hear the case.

Further, Mr. Brown’s willingness

to withdraw the claims against Defendants in their individual
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capacities does not create viable injunctive claims in this case
because the claims for injunctive relief are either moot or were
eliminated when the case was dismissed.

For these reasons, it

will be recommended that Mr. Brown’s motion to reinstate be
denied.
Based upon the foregoing, it is recommended that the motion
to reinstate be denied.
Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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