Zapata et al v. Burkes et al

Filing 8

ORDER AND REPORT AND RECOMMENDATIONS. It is RECOMMENDED that plaintiffs' Motion for Reconsideration of the Decision on the Report and Recommendation, ECFNo. 4 , be denied. Upon unopposed motion, ECF No. 7 , defendants may have untilfourteen (14) days after resolution of the pending motion for reconsideration to respond to the Complaint. Signed by Magistrate Judge Norah McCann King on 3/8/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KIMBERLEY ZAPATA, et al.,
Plaintiffs,
Case No. 2:15-cv-3076
Chief Judge Sargus
Magistrate Judge King

v.
RONETTE BURKES, et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION

Plaintiffs, inmates at the Ohio Reformatory for Women (“ORW”),
bring this civil action against various employees of ORW and the Ohio
Department of Rehabilitation and Correction (“ODRC”). Plaintiffs
assert claims under 42 U.S.C. § 1983 for the alleged denial of medical
care in violation of the Eighth and Fourteenth Amendments and state
law claims of negligence and invasion of privacy. Complaint, ECF No.
1. On December 14, 2015, the undersigned recommended that the state
law claims asserted in the Complaint be dismissed unless and until the
Ohio Court of Claims determines that the defendants are not entitled
to civil immunity under O.R.C. § 9.86. Report and Recommendation, ECF
No. 2. On January 5, 2016, the Court adopted that recommendation
without objection. Order, ECF No. 3.

On January 12, 2016, plaintiffs,

who are proceeding through counsel, filed a motion to reconsider that
decision. Motion for Reconsideration of the Decision on the Report and
Recommendation, ECF No. 4. Defendants oppose that motion, Memorandum

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in Opposition to Plaintiffs’ Motion for Reconsideration, ECF No. 5,
and plaintiffs have replied in support of their motion, ECF No. 6
(“Reply”).
Although the Federal Rules of Civil Procedure do not explicitly
address motions for reconsideration of interlocutory orders, a
district court’s authority to entertain such motions is found in both
the common law and Rule 54(b) of the Federal Rules of Civil Procedure.
See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12
(1983) (“Every order short of a final decree is subject to reopening
at the discretion of the district judge”); Mallory v. Eyrich, 922 F.2d
1273, 1282 (6th Cir. 1991) (“District courts have inherent power to
reconsider interlocutory orders and reopen any part of a case before
entry of a final judgment.”); Rodriguez v. Tenn. Laborers Health &
Welfare Fund, 89 F. App’x 949, 959-60 (6th Cir. 2004).
“Traditionally, courts will find justification for reconsidering
interlocutory orders when there is (1) an intervening change of
controlling law; (2) new evidence available; or, (3) a need to correct
a clear error or prevent manifest injustice.”

Rodriguez, 89 F. App’x

at 959 (citing Reich v. Hall Holding Co., Inc., 990 F. Supp. 955, 965
(N.D. Ohio 1998)).
Plaintiffs argue that the Court erred in dismissing the state law
claims. In particular, plaintiffs contend that, because the Complaint
alleges that defendants acted maliciously and in bad faith, see id. at
¶ 77, PAGEID# 11, this Court has jurisdiction to entertain the state
law claims asserted against them. Plaintiffs also contend that, in any
event, the Ohio Court of Claims lacks jurisdiction to entertain claims

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under § 1983. In support of these contentions, plaintiffs cite Von
Hoene v. State, Dep’t of Rehabilitation & Correction, Div. of Parole &
Community Services, 20 Ohio App. 3d 363 (1st Dist. Ct. App. 1985), and
Hanna v. Ohio Department of Rehabilitation & Correction, 2009-Ohio5094, 2009 WL 3089128 (10th Dist. Ct. App. Sept. 17, 2009). Plaintiffs’
contentions are not well-taken.
It is true that the Ohio Court of Claims may not entertain claims
for affirmative relief against a state agency under § 1983 in
connection with conditions of confinement. Hanna, 2009 WL 3089128, *2
(citing, inter alia, Baker v. Ohio Dept. of Rehab. & Corr, 144 Ohio
App. 3d 749, 761 (10th Dist. Ct. App. 2001)).

However, Ohio’s Court of

Claims Act was amended in 1987 to expressly provide:
A civil action against an officer or employee . . . that
alleges that the officer’s or employee’s conduct was
manifestly outside the scope of the officer’s or employee’s
employment or official responsibilities, or that the
officer or employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner shall first be
filed against the state in the court of claims that has
exclusive, original jurisdiction to determine, initially,
whether the officer or employee is entitled to personal
immunity under second 9.86 of the Revised Code . . . .
O.R.C. 2743.02(F). The Ohio Supreme Court has expressly held that the
Ohio Court of Claims has the exclusive jurisdiction to determine
whether a state employee is immune from liability on state law claims.
Johns v. University of Cincinnati Medical Associates, Inc., 101 Ohio
St. 3d 234 (2004), syllabus. Thus, Von Hoene, which had previously
held that a “malicious act allegation” in the complaint is sufficient
to confer jurisdiction on a court of common pleas over individual
state employees on state law claims, is no longer an accurate
articulation of Ohio law.

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It is therefore RECOMMENDED that plaintiffs’ Motion for
Reconsideration of the Decision on the Report and Recommendation, ECF
No. 4, be denied.
Upon unopposed motion, ECF No. 7, defendants may have until
fourteen (14) days after resolution of the pending motion for
reconsideration to respond to the Complaint.

March 8, 2016

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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