The opinion
[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 defendant-
appellee, 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. CR-
297040." 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.
______________________