Collateral Litigation


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Immunity Issues

Harris v. Sutton, 183 Ohio App. 3d 616, 2009-Ohio-4033 – Plaintiff sued city for malicious prosecution. City asserted sovereign immunity. R.C. Chapter 2744 requires a three tiered analysis when a political subdivision asserts sovereign immunity. (1) Does the claim for damages relate to a governmental function? Here the operation of a police department is a governmental function. (2) Do any of the exceptions to sovereign immunity set forth in R.C. 2744.02(B) apply? These are (i) negligent operation of a motor vehicle, (ii) negligent conduct of employees while carrying out a proprietary function, (iii) failure to keep roads or sidewalks free from nuisance, (iv) injury or loss in government buildings caused by employee negligence, and (v) any other situation in which liability is expressly imposed by the Revised Code. Only (v) might apply here and the plaintiff has failed to identify such a statute. (3) Does an R.C. 2744.03 defense restore immunity? Not reached in this case.
Walk v. Supreme Court of Ohio, Franklin App. No. 03AP-205, 2003-Ohio-5343 -- Former inmate sued the Supreme Court maintaining it was liable for damages because the judge assigned to sit on the trial court imposed an erroneous sentence resulting in eleven months of incarceration beyond the term of the sentence following reversal. Immunity bars recovery as the assigned judge acted within his judicial capacity. Thus vicarious liability may not be imposed on the Supreme Court through respondeat superior.
Scott v. Harris (2007), 127 S.Ct. 1769 -- Pursuing officer bumped fleeing suspect from behind at high speed. Crash rendered the driver a quadriplegic, and he brought a 1983 suit. Summary judgment should have been granted on the officer's claim of qualified immunity as the Supreme Court (unlike the lower courts) concludes there is no disputable issue of fact as to the reasonableness of his actions. Compare Tennessee v. Garner (1975), 471 U.S. 1.
Los Angeles v. Rettele (2007), 127 S.Ct. 1989 -- In the context of a 1983 suit, it was not unreasonable for officers executing a warrant to force a couple to stand naked in their bedroom for a few minutes though the suspects who used to live at that address were of a different race. The police were entitled to exercise unquestioned command of the situation and thus were protected by immunity.
Brkic v. Cleveland (1995), 100 Ohio App. 3d 282 -- Police officers severely damaged property during execution of search warrant and property owner sued. R.C. 2744.01 and 2744.03 do not provide immunity for acts and omissions outside the scope of employment or done with a malicious purpose, in bad faith or in a wanton or reckless manner. Also see Brkic v. Cleveland (1997), 124 Ohio App. 3d 271.
Franklin v. Dayton Probation Service Department (1996), 109 Ohio App. 3d 613 -- Because plaintiff pleaded that clerk's omissions were wanton, immunity did not defeat cause of action. Court erroneously sustained motion for judgment on the pleadings.
Baum v. Ohio State Highway Patrol (1995), 72 Ohio App. 3d 469 -- Syllabus: "In the absence of willful or wanton misconduct, the State Highway Patrol is immune from liability for injuries caused by a patrol officer in the operation of his vehicle while responding to an emergency call."
Richard v. Rice (1993), 91 Ohio App. 3d 199 -- A prosecutor is entitled to absolute prosecutorial immunity against a suit claiming malicious prosecution based on the use of perjured testimony. See Imbler v. Tachtman (1974), 424 U.S. 409.
Anderson v. Creighton (1987), 483 U.S. 653 -- Officers conducting an unlawful search are entitled to summary judgment based on qualified immunity from civil liability if they can establish as a matter of law that a reasonable officer could have believed the search complied with the Fourth Amendment, even though it did not.
Piphus v. Blum (1995), 108 Ohio App. 3d 218 -- Officers were not entitled to summary judgment on the basis of qualified immunity on those claims seeking equitable relief. Black motorists claimed discriminatory pattern of making traffic stops to facilitate drug interdiction, and sought injunctive relief.
Sprague v. Army's Auto Wrecking (1995), 79 Ohio Misc. 2d 45 -- Towed vehicle was damaged and personal property was missing. Owner sued city and towing company. (1) Bailment held to have existed. (2) Sovereign immunity does not apply.
Hicks v. Leffler (1997), 119 Ohio App. 3d 424 -- Officer arrested thirteen year old girl who jaywalked in front of his van to accept a ride from her grandmother. For purposes of summary judgment, there were legitimate issues of fact as to the qualified immunity given governmental employees and as to other issues in the case.

Appropriateness and Availability of Collateral Cause of Action

State v. Brooks (1999), 133 Ohio App. 3d 521 -- Inmate brought a declaratory judgment action in an effort to revisit the propriety of his probation revocation four years earlier. (1) There was no justiciable controversy between the parties. A declaratory judgment action cannot be used as a substitute for appeal or as a subterfuge for revisiting issues already determined. (2) Relief sought was in the nature of postconviction relief. Action was untimely.
State v. Martin (1993), 92 Ohio App. 3d 384 -- Judge ordered release of grand jury minutes to defendant police officer. When he sought to use them in a hearing before the police personnel board of review, the prosecutor obtained an injunction from another judge blocking use. Collateral attack in this manner was improper. "Injunction is not available to enjoin that which has already been accomplished or afford redress for past wrongs." The proper remedy was to seek to have the order releasing grand jury testimony voided, or to appeal it.
Wise v. Ohio Department of Rehabilitation and Correction (1992), 84 Ohio App. 3d 11 -- Neither declaratory judgment action or mandamus brought by inmate lies to challenge "parole guidelines" not properly adopted as a rule, since even if they had been properly adopted, no right to release or parole would have been created.
Hattie v. Anderson (1994), 68 Ohio St. 3d 232 -- Inmate had been approved for release on parole, but this was rescinded when he wrote to his parole office questioning some of the conditions. (1) Habeas corpus does not lie in these circumstances since the authority of the sentencing court was not challenged. (2) Mandamus does provide a remedy. (3) A declaratory judgment action is the proper remedy to challenge terms of release.
State ex rel. Hattie v. Goldheart (1994), 69 Ohio St. 3d 123 -- Mandamus does not lie to compel correction of alleged errors on APA risk assessment score sheet.
Johnson v. Wilkinson (1992), 84 Ohio App. 3d 509, 515 -- "We hold that the failure to exhaust administrative remedies does not affect a court's subject matter jurisdiction, but merely is an affirmative defense that must be timely raised ad established."

Dismissal and Summary Judgment

State ex rel. Bristow v. Huffman (2000), 138 Ohio App. 3d 500 -- Mandamus action properly dismissed because of inmate's failure to comply with R.C. 2969.25 by filing a affidavit describing each civil action filed in state or federal court during the previous five years. Also see State ex rel. Swingle v. Zaleski (2001), 91 Ohio St. 3d 82.
Bellecourt v. Cleveland, 104 Ohio St. 3d 439, 2004-Ohio-6551 -- Protestors were arrested, but not prosecuted, for arson after a newspaper stuffed effigy of Chief Wahoo flared up. Subsequent 1983 action is shot down. Pfeifer dissenting at ¶27: "If we allow flag burning in this country, we should certainly allow Chief Wahoo effigy burning. Our flag stands for over 200 years of freedom and unity; Chief Wahoo stands for 56 years (and counting) of baseball futility."
Akbar-El v. Ohio Department of Rehabilitation and Correction (1998), 126 Ohio App. 3d 644 -- Inmate failed to file required affidavit detailing litigation undertaken during the past five years. Prosecutor's motion for dismissal was converted to a motion for summary judgment and granted. Affirmed. Also see State ex rel. Alford v. Winters (1997), 80 Ohio St. 3d 285.
Besser v. Griffey (1993), 88 Ohio App. 3d 379 -- Sua sponte dismissal of inmate suit, without notice to inmate or opportunity to respond was improper. Civ. R. 12(B)(6) dismissal requires notice to parties and opportunity to respond and Civ. R. 56 does not provide for sua sponte summary judgment.
Murphy v. Reynoldsburg (1992), 65 Ohio St. 3d 356 -- African-American was arrested on a drug trafficking charge which was dismissed after a mistrial. After learning of the suburban police department's "SNAT Team," he filed a civil rights action. Summary judgment was granted in favor of the city following a hearing at which the judge said he had not read the motion or briefs submitted by counsel. Reversed. Syllabus: "Civ. R. 56(C) places a mandatory duty on a trial court to thoroughly examine all appropriate materials filed by the parties before ruling on a motion for summary judgment. The failure of a trial court to comply with this requirement constitutes reversible error."

Frivolous Claims; Sanctions

Karmasu v. Wilkerson (1996), 115 Ohio App. 3d 737 -- Inmate's lawsuit properly dismissed after in forma pauperis status was revoked because of "repeatedly filing frivolous and vexatious pleadings," and inmate's subsequent failure to cover necessary costs of continuing the action. Also see Wilson v. Department of Rehabilitation and Correction (2000), 138 Ohio App. 3d 239.
Karmasu v. Southern Ohio Correctional Facility (1993), 63 Ohio Misc. 2d 377, 378 -- "...(T)he abusive procedure of filing (37) frivolous lawsuits requires the court to OVERRULE plaintiff's request to proceed in forma pauperis in his recent filing."
State ex rel Russell v. Shaker Heights Municipal Court (1993), 87 Ohio App. 3d 511 -- Pro se filing seeking writ of prohibition in Common Pleas Court, which did not have jurisdiction, was frivolous conduct warranting award of attorney fees.

Prisoner's Suits

State ex rel. Wickensimer v. Bartleson, 123 Ohio St. 3d 154, 2009-Ohio-4695 – If an inmate has not initiated a civil action or appeal against a government entity or employee during the previous five years R.C. 2969.25(A) does not require the filing of an affidavit to that effect. It may be advisable to do so anyway to forestall dismissal.
Boylen v. Ohio Department of Rehabilitation and Corrections, 12 Ohio App. 3d 265, 2009-Ohio-1953 – Inmate brought an action seeking declaratory judgment, injunctive relief and damages relating to collection of court costs from his inmate account. Trial court improperly dismissed action. Opinion discusses the administrative review process and the procedural hurdles the inmate is found to have passed with regard to the ensuing lawsuit.
Wilkinson v. Dotson (2005), 125 S.Ct. 1242 -- Inmates may pursue a 42 U.S.C. 1983 action for declaratory and injunctive relief claiming Ohio's parole eligibility procedures violate the federal constitution. Inmates are not limited to habeas relief. Section 1983 remains available where success would not necessarily lead to immediate release. Claims for future relief do not necessarily imply current confinement is invalid.
State v. Stephens, Hamilton App. No. C-020683, 2003-Ohio-6193 -- The remedy for a Layne violation is a declaratory judgment action against the Adult Parole Authority and the county prosecutor, not a motion to withdraw the guilty plea. Also see State v. Davis, 158 Ohio App. 3d 478, 2004-Ohio-5354.
Conely v. Correctional Reception Center (2001), 141 Ohio App. 3d 412 -- Inmate may pursue a mandamus action to obtain photos and work schedules of corrections officers who were on duty when and where he claims to have been attacked. The "good sense" rule of State ex rel. Keller v. Cox (1999), 85 Ohio St. 3d 279 does not extend to these circumstances.
State v. Haynie, 157 Ohio App. 3d 708. 2004-Ohio-2452 -- No equal protection violation found in garnishment for court costs against a prisoner's inmate account.
Martin v. Ohio Department of Rehabilitation and Correction (2001), 140 Ohio App. 3d 831 -- State court lawsuit claiming mistreatment of prisoner construed as a 1983 action and help properly dismissed pursuant to Title 42 U.S.C., Sec. 1997e(a), which requires exhaustion of administrative remedies with respect to suits concerning detention facility conditions.
Rash v. Anderson (1997), 80 Ohio St. 3d 349, 351 -- With little discussion, court finds no constitutional violations in R.C. 2969.22, which calls for all but $10 to be taken from inmate accounts towards payment of court costs in civil cases.
State ex rel. Bruggeman v. Leonard (1999), 86 Ohio St. 3d 298 -- Court did not abuse its discretion in ordering petitioner to pay costs, since prison records disclosed he had spent "over $34" on pizza and ice cream during the preceding six months.
Karmasu v. Tate (1992), 83 Ohio App. 3d 199 -- The warden of a prison is obliged to provide an inmate the sacred text(s) of his religion. Also see R.C. 5145.25; Karmasu v. Tate (1994), 95 Ohio App. 3d 399.
State ex rel. Davis v. Ghee (1998), 126 Ohio App. 3d 569 -- Venue for a mandamus action seeking to compel the APA to conduct a parole revocation hearing lies in Franklin County where the Adult Parole Authority conducts business.
Coleman v. Stobbs (1986), 23 Ohio St. 3d 137 -- Syllabus: "A court should apply a two-part test in determining whether the delay of the Adult Parole Authority, in not commencing a final parole revocation hearing, entitles an alleged parole violator to habeas corpus relief. First, it must be determined that any delay was unreasonable.. Second, if the delay is found to be unreasonable, it must be determined whether the delay somehow prejudiced the alleged parole violator." Also see Horton v. Collins (1992), 83 Ohio App. 3d 287.
Corder v. Ohio Department of Rehabilitation and Correction (1994), 94 Ohio App. 3d 315, 318 -- Former prisoner is entitled to damages for wrongful imprisonment where the APA had knowledge of the status of the law, but chose not to follow it.
Elliott v. Ohio Department of Rehabilitation and Correction (1994), 92 Ohio App. 3d 772 -- Guard who punched prisoner in the face acted recklessly and could be sued individually. Because he was acting within the course of his employment, ODRC was liable under the doctrine of respondeat superior.
Szydlowski v. Ohio Dept. of Rehabilitation and Correction (1992), 79 Ohio App. 3d 303 -- Since sexual abuse by psychological aide at the Marysville Reformatory was outside the scope of his duties, the state was not liable under the doctrine of respondeat superior.

Civil Rights Actions

Baker v. Ohio Department of Rehabilitation and Correction (2001), 144 Ohio App. 3d 740 -- Inmate's 1983 action survives Civ.R. 12(B)(6) motion on claim denial of proper medical care by prison affiliated physician amounted to cruel and unusual punishment.
Bridges v. Butch (1997), 122 Ohio App. 572 -- Parole officers damaged house belonging to parents who had two sons on parole. (1) 1983 action did not have to be brought in the Court of Claims. (2) Parole officers acted under color of law. (3) Property rights violations must be asserted using state remedies, if available, but this rule does not extend to substantive rights, such as illegal search and seizure. (4) Because there were disputed issues of fact as to whether seizures of persons or property occurred, summary judgment was improper.
Wise v. Department of Rehabilitation and Correction (1994), 97 Ohio App. 3d 741 -- Based only on an anonymous letter to the warden claiming to describe how she smuggled drugs to her husband in prison, plaintiff submitted to a strip search at the time of her next visit, facing loss of visiting privileges if she refused. (1) Though detailed, letter was not corroborated either internally or by other circumstances and did not give rise to the reasonable suspicion required for a strip search to be conducted. (2) A strip search is an invasion of privacy which would be objectionable to a reasonable visitor to a penal institution. (3) Visual inspection of the entrances to the anal and vaginal cavities held to be a strip search and not a body cavity search, which must be conducted by medical personnel.
Shockley v. Wilkinson (1994), 96 Ohio App. 3d 91 -- Court affirms 12(B)(6) dismissal of inmate's 1983 suit claiming that adverse treatment in the institution and unfavorable consideration for parole resulted from his refusal to participate in a "voluntary" program for sex offenders, which required waiver of Fifth Amendment privilege with the understanding that admissions of unprosecuted criminal acts would be reported to the authorities. See dissent.
Martin v. Roeder (1992), 83 Ohio App. 3d 64 -- A court of common pleas has subject matter jurisdiction over suits brought under 42 U.S.C. Sec. 1983. Also see Conley v. Shearer (1992), 64 Ohio St. 3d 284, 292-293; Schwartz v. Ohio State Board of Trustees (1987), 31 Ohio St. 3d 267.
Gumpl v. Bost (1992), 81 Ohio App. 3d 370 -- Inmate filed civil action against prison employees mixed claims under state law and 42 U.S.C. Sec. 1983. As to state claims, plaintiff was first required to obtain immunity determination from the Court of Claims, however, this was not a prerequisite for the federal claims. Also see Mullins v. Griffin (1991), 78 Ohio App. 3d 84; Mullins v. Birchfield (1993), 88 Ohio App. 3d 170.
Adams v. Garrison (February 6, 1996), Franklin Co. App. No. 95APE02-235, unreported (1996 Opinions 370) -- Probationer remained in jail on holder several days after new charge was dropped. Summary judgment properly granted in 1983 claim against probation department as delay appeared to be an isolated incident and not the custom.

Malicious Prosecution

State ex rel. Sapp v. Franklin County Court of Appeals, 118 Ohio St. 3d 368, 2008-Ohio-2637 – A party declared a vexatious litigator by a trial court must seek leave to appeal from the court of appeals and obtain leave in time for the notice of appeal to be timely. Writ of prohibition issued to prevent court of appeals from proceeding.
Akron v. Frazier (2001), 142 Ohio App. 3d 718 -- Pursuant to R.C. 2953.53 unsealing of the record is mandatory at the request of the defendant or complaining witness in relation to a subsequent malicious prosecution action.
Mayes v. Columbus (1995), 105 Ohio App. 3d 728, 737 -- "...The Ohio Supreme Court has defined 'malice' for purposes of malicious criminal prosecution as 'an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice.'...In determining whether a criminal prosecution was instituted or continued for an improper purpose, inquiry must be made into the basis for the decision to prosecute. In the absence of evidence showing a basis for the decision, it will appear to have been made without any basis, i.e., maliciously...Thus, the absence of probable cause is the gist of an action for malicious prosecution, and malice may be inferred from the absence of probable cause." Also see Mayes v. Columbus (1997), 124 Ohio App. 3d 411 holding with respect to a 1983 claim that it was error to instruct the jury that proof of malicious prosecution was a predicate.
Seredick v. Karnock (1994), 99 Ohio App. 3d 502, 503 -- "The elements necessary to maintain an action for malicious prosecution in Ohio are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused." For the nearly identical requisites of malicious prosecution cause of action based on a civil suit see Robb v. Chagrin Lagoons Yacht Club (1996), 75 Ohio St. 3d 264.
Kirk v. Edwards (1995), 103 Ohio App. 3d 187 -- Guardian ad litem left instructions that suspected victim of child abuse not be interviewed without either her or a licensed psychologist being present. When pursuant to these instructions a detective was turned away during a supervised visit, he precipitously filed obstructing justice charges against the guardian, which were soon dismissed. (1) Summary judgment was improperly granted in favor of the defendant as there was a material issue of fact as to whether there was probable cause for filing charges. (2) Malice may be inferred from a lack of probable cause. Malice need not be predicated upon evidence of actual ill will or evil intent. It may be evidenced by wanton and reckless refusal to make a reasonable investigation with regard to the propriety of prosecution, or by the refusal to terminate prosecution upon notice that it is wrongful.
Richard v. Rice (1993), 91 Ohio App. 3d 199 -- A prosecutor is entitled to absolute prosecutorial immunity against a suit claiming malicious prosecution based on the use of perjured testimony. See Imbler v. Tachtman (1974), 424 U.S. 409.

Vexatious Litigators

State ex rel. Sapp v. Franklin County Court of Appeals, 118 Ohio St. 3d 368, 2008-Ohio-2637 – A party declared a vexatious litigator by a trial court must seek leave to appeal from the court of appeals and obtain leave in time for the notice of appeal to be timely. Writ of prohibition issued to prevent court of appeals from proceeding.
Mayer v. Bristow (2001), 91 Ohio St. 3d 4 -- Syllabus: "(1) R.C. 2323.52, the vexatious litigator statute, is constitutional in its entirety. (2) R.C. 2323.52 grants authority to the court of common pleas to order a vexatious litigator to obtain its leave before proceeding in the Court of Claims, a court of common pleas, municipal court, or county court. A court of common pleas has no authority under R.C. 2323.52, or pursuant to its own inherent powers to prevent abuse of the judicial process, to restrict the activities of a vexatious litigator in courts other than those specifically enumerated Ohio trial courts." Ohio court ordered that inmate's mail containing pleadings and other materials be forwarded for review, including those relating to litigation in other jurisdictions. Also see Mayer v. Bristow (2001), 144 Ohio App. 3d 84.
State ex rel. Howard v. Court of Common Pleas of Lucas County (2001), 142 Ohio App. 3d 761 -- Adjudicated vexatious litigator failed to apply for leave to proceed. Mandamus action dismissed as this omission means he can not demonstrate a clear right to the relief sought or that respondents have a clear legal duty to perform the act requested.
Hull v. Sawchyn (2001), 145 Ohio App. 3d 193 -- Repeated suits raising the same unfounded claim warranted designation as a vexatious litigator. Subjectively the party may have been seeking justice, but objectively he had received justice, though the law was not in his favor. Also see Gains v. Harman, 148 Ohio App. 3d 357, 2002-Ohio-2793.

Other Issues

Griffin v. Cleveland, 128 Ohio St. 3d 35, 2010-Ohio-4905 – Syllabus: “(1) Only courts of common pleas have jurisdiction to determine whether a person has satisfied the five requirements of R.C. 2743.48(A). (2) All wrongful-imprisonment claimants must follow a two-step process. In the first step, the claimant must bring an action in the court of common pleas to secure a determination that he or she is a wrongfully imprisoned individual entitled to compensation. In the second step, the claimant must file a civil action against the state, in the Court of Claims, to recover a sum of money. (Walden v. State (1989), 47 Ohio St. 3d 47, 547 N.E.2d 962, followed.)
McClain v. State, 186 Ohio App. 3d 654, 2010-Ohio-1021 – Plaintiff was convicted, then awarded a new trial and acquitted in Hamilton County. Wrongful imprisonment suit was filed against the state of Ohio in the Franklin County Common Pleas Court which dismissed based on the pleadings, finding the Hamilton County Prosecutor was the “proper party defendant to represent the state of Ohio” and that Hamilton County was the proper venue. Reversed. Opinion sets forth the basics of wrongful imprisonment suits, then concluded the state (represented by the A.G.) is the real party in interest as it would have to pay any judgment, and that venue is proper in Franklin County, which is the seat of state government.
Soke v. The Plain Dealer (1994), 69 Ohio St. 3d 395 -- A police officer testifying in trial regarding his personal advice to a nephew about that relative's cooperation in a murder investigation is a public official for defamation purposes.
State ex rel. Freeman v. Morris (1992), 65 Ohio St. 3d 458 -- A prevailing pro se litigant is not entitled to compensation for attorney fees under R.C. 2335.39.
Ingraham v. Ribar (1992), 80 Ohio App. 3d 29, 34 -- A pro se litigant in a mandamus action pursuant to R.C. 149.43 is not entitled to attorney fees.
Washington County Department of Human Services v. Rutter (1995), 100 Ohio App. 3d 32 -- Statute allowing non-lawyer employee of human services department to sue in small claims court to appear in small claims court on behalf of the department is unconstitutional. At p. 37: "The General Assembly has no authority to authorize lay persons to appear before the courts of this state in a representative capacity for another entity and the Ohio Supreme Court has taken no action to sanction such conduct."
Huff v. Ohio Department of Administrative Services (1995), 74 Ohio Misc. 2d 37, 45 -- "For purposes of the tort of false imprisonment, plaintiffs need only prove a detention of their person. The presumption then arises that the restraint was unlawful. This shifts the burden of proof to defendants to show legal justification."
Nationwide Insurance Company v. Estate of Kollstedt (1995), 71 Ohio St. 3d 624 -- Paragraph one of the syllabus: "A provision in a liability insurance policy which excludes coverage to an insured where the insured expected or intended to cause bodily injury or property damage does not apply under circumstances where the insured was mentally incapable of committing an intentional act."
State ex rel. Earl (1999), 85 Ohio St. 3d 370 -- Declaratory judgment, not mandamus, is the proper means for seeking correction of a prison record with respect to calculation of good time credit for purposes of parole eligibility.
State v. Harman (1999), 132 Ohio App. 3d 348 -- Trial court properly denied certificate for wrongful imprisonment as defendant was committing other offenses at the time of the offense he was convicted of, notwithstanding reversal and agreement not to prosecute further. Also see Gover v. State (1993), 67 Ohio St. 3d 93, 95.

Publishing Information

Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.