IN THE SUPREME COURT OF OHIO. benefit of counsel, hereby move this Honorable Court to Review the Entry of Dismissal filed in The

Transcription

1 O 1 ^ INAL KENNETH PRUITT#A635780, Pickaway Correctional Inst., P.O. Box 209, Orient, Ohio 43146, Plaintiff, V. JUDGE, Patrick M. McGrath/ MAGISTRATE, Robert Van Schoyck, COURT OF CLAIMS OF OHIO, 65 South Front Street, Third Floor, Columbus, Ohio 43215, Respondent(s). IN THE SUPREME COURT OF OHIO CASE NO. Trial Case No. B C.C. Case No I -U4U7 COMPLAINT/ MOTION FOR COURT REVIEW UNDER: Article IV, Section 2 of the Ohio Constitution. In the interest of justice, now comes Plaintiff, Kenneth Pruitt, acting in pro se, and without the benefit of counsel, hereby move this Honorable Court to Review the Entry of Dismissal filed in The Court of Claims, on January 29th, 2013; to hear and decide a controversy between the parties and to enter a judgment thereon (on the merits) pursuant to Section , General Code. See, Warren v. Mayor and Aldermen of Charleston, 68 Mass. (2 Gray), 84, 99. also State v. Cameron, Supra. Plaintiff Prays that this Honorable Court exercise the power imposed upon this court, to wit; the duty of declaring on questions of law to guide the lower courts in similar cases, even though it was not conferring upon this court judicial power. The reasons for this action are more fully stated in the Memorandum In Support, and Exhibit (H), 1RECHE V of this action. Respectfully Submi d, MAR 1 J 2013 CLERK OF COURT SUPREME CUURT OF ( E ETH X ITT, Pro se Pickaway Correctional Institution P.O. Box 209 Orient, Ohio MAR 13 NO CLERK OF COURT SUPREME COURT OF OHIO JoF 8

2 STATEMENT OF FACTS Plaintiff filed a complaint in the Court of Claims on December 6th, Thereafter, Plaintiff filed a Motion For Declaratory Judgment in the Court of Claims. Defendant (DRC) filed a Motion To Dismiss the complaint, staying the time to file an answer to the complaint on December 28ti', On January 8th, 2013, Defendant (DRC) filed a Motion To Stay Response To Plaintiffs Motion For Declaratory Judgment, until after the Court of Claims has decided on Defendant's Motion To Dismiss. On January 29th, 2013, the Court of Claims dismissed Plaintiffs complaint on the Defendant's pleadings, which is contrary to law, and in controversy with similar cases. MEMORANDUM IN SUPPORT The Entry of Dismissal fails to acknowledge how the February 18th, 2011 Order was obtained by the DRC. The Entry states:" Although plaintiff alleges that the February 18th, 2011 order regarding jail time credit is invalid on the grounds that it is a forgery, his complaint identifies nothing on its face of the order that would indicate its invalidity". Pg. 2 of the Entry of Dismissal. Plaintiff clearly indicated that not only did the February 18th, 2011 order contain a signature totally different from the signature on the February 17th, 2011 Entry Granting Motion For Jail Time Credit, signed by the sentencing Judge Nadel, but Plaintiff also provided evidence, Exhibit (H) paragraph 3, that stated DRC contacted the Judge's Office, and a Bailiff informed them that amount was incorrect and he (the Bailiff) would re do the entry. Wherefore, the ambiguous signature on the February 18th, 2011 order, coupled with the illegal communication between DRC and the Court's Bailiff was unlawful and contrary to law, which makes the February 18th, 2011 order Void on its face. The law is very clear that DRC has a duty to carry out the judgment of the court and nothing more. See, State ex rel. Dailey v. Morgan, 761 N.E.2d 140,143. In Dismissing Plaintiffs complaint, the Respondent(s) allowed the DRC to be in contempt, by refusing to enforce the Entry Granting Motion For Jail Time Credit, filed on February 17th, 2011, by the trial court. The Respondent(s) destroyed the sanctity and finality of judgments by dismissing the a 04,8

3 complaint, which is clearly contrary to law. It was not within DRC's prerogative to refuse to enforce the unambiguous terms of Plaintiff s sentence. See, State ex rel. Dailey v. Morlian, 761 N.E.2d 140, 143. Pg. 3 of the Entry of Dismissal claimed that Plaintiff challenged the propriety of his sentence, and that the Court of Claims lacked jurisdiction over the case. This is also incorrect; Plaintiff clearly claimed that he was unambiguously granted 1,530 days of jail time credit, on February 17th, 2011, by the trial court, and that DRC refused to enforce that particular Order. The Respondent(s) also failed to properly adjudicate Plaintiffs Motion For Declaratory Judgment in this case. R.C (A)(2) currently provides:"if the claimant in a civil action as described in division (A)(1) of this section also files a claim for a declaratory judgment, injunctive relief, or other equitable relief against the state that arises out of the same circumstances that gave rise to the civil action described in division (A)(1) of this section, the court of claims has exclusive, original jurisdiction to hear and determine that claim in that civil action. This division does not affect, and shall not be construed as affecting, the original jurisdiction of another court of this state to hear and determine a civil action in which the sole relief that the claimant seeks against the state is a declaratory judgment, injunctive relief, or other equitable relief." (Emphasis added.) NOTE: Plaintiff also attached a Prayer for Monetary Relief to his Motion For Declaratory Judgment, which placed the action properly before the Court of Claims. The Entry of Dismissal also fails to acknowledge the Ohio Adult Parole Authority's authority, Whereas, the APA placed Plaintiff on PRC with the tentative start date of May 23d, 2011, as a result of the 2/17/2011 assessment on February 17th, NOTE: Jail Time Credit rest solely with the APA. See, State ex rel. Harrell v. Court of Common Pleas (1979), 58 Ohio St. 2d 193. In this case, the fact remains that the February 17th, 2011 Entry Granting Motion For Jail Time Credit was a Final Appealable Order pursuant to R.C (A)(1), and was not appealed by any party. See, State ex rel. Dailey v. Morgan, 761 N.E. 2d 140. The Respondent(s) failed to acknowledge the fact that the February 18'h, 2011 Order would not exist if DRC would have simply complied with the trial court's original Entry Granting Motion For Jail Time Credit instead of illicitly contacting the 3 oc 13

4 Judge's Office. In the same instance, a Bailiff is not even a party of the Hamilton County Case, and had no authority to re do a Court's Order as stated in Exhibit (H) paragraph 3, provided by the Plaintiff. As a general proposition, even the trial court's barred determination of 964 days of credit for time served, (currently in DRC's Records as 965 days of JTC), filed on November 14th, 2011 and October 4th, 2012, would still have Plaintiff False Imprisoned as of this date, because his new release date would have been on or about November 26th, Those entries would have replaced the February 18th, 2011 order, although they are barred by res judicata. Here, However, the Respondent(s) allowed DRC to refused to enforce those entries as well, which evidence is also provided in Exhibit (H) paragraph 4. See, Exhibit (H). Therefore, the decision of the Respondent(s) was fundamentally wrong in its reasoning, and undermines the structure and purpose of the Court of Claims. Plaintiff Prays that this Honorable Court grant appropriate relief according to law, reversal, or issuance of any alternative writ or relief deemed necessary for appropriate relief by this Honorable Court according to law. Plaintiff is entitled to judgment as a matter of law. Respectfully Submitt, CINETI- UITT, Pro se Pickaway Correctional Institution P.O. Box 209 Orient, Ohio CERTIFICATE OF SERVICE I, Kenneth Pruitt, certify that a copy of the foregoing "Complaint" was mailed, by regular U.S. Mail, to Judge, Patrick M. McGrath and Magistrate, Robert Van Schoyck, located at The Court of Claims, 65 South Front Street, Third Floor, Columbus Ohio 43215, on this ^ day of q o4''8

5 2013. or at the designated location within The Ohio Supreme Court's Clerk of Courts Office on the filed stamped date. ^I ke"etih T, Pro se Pl AFFIDAVIT OF VERITY I, Kenneth Pruitt, being competent to testify in a court of law, and being able to do so with personal knowiedge of the facts in the complaint, do hereby depose and state, having first been duly sworn and cautioned as to the penalty of perjury that; I filed a complaint in the Court of Claims on December 6th, 2012; Thereafter, I filed a Motion For Declaratory Judgment in the Court of Claims; The Respondent(s) failed to properly adjudicate the Motion For Declaratory Judgment in the case;,5 ft

6 Defendant (DRC) filed a Motion To Dismiss the complaint, staying the time to file an answer to the complaint on December 28th, 2012; On January 8th, 2013, Defendant (DRC) filed a Motion To Stay Response To Plaintiffs Motion For Declaratory Judgment, until after the Court of Claims has decided on Defendant's Motion To Dismiss; On January 29th, 2013, the Court of Claims dismissed the complaint on the Defendant's pleadings, without determining whether the Defendant's actions where within the scope of their authority; I clearly claimed in my complaint, in the Court of Claims, that I was unambiguously granted 1,530 days of jail time credit, on February 17th, 2011, by the trial court, and that DRC refused to enforce that particular Order; I was placed on PRC by the Ohio Adult Parole Authority on February 17th, 2011, with the tentative start date of May 23rd, 2011, as a result of the 2/17/2011 assessment; I presented Exhibit (H) with the Complaint, which provided evidence that the Defendant (DRC) contacted the judge's office after receiving the clear and unambiguous Entry Granting Motion For Jail Time Credit, that awarded me 1,530 days of jail time credit, filed by the trial court on February 17th, 2011, which was signed by the sentencing Judge Nadel; That Entry was not appealed by any party, which made it a Final Judgment pursuant to R.C (A)(1); a Bailiff informed DRC that he (the Bailiff) would re do that order, which is unlawful, and violated my 14ffi Amendment to the United States Constitution, Due Process of Law; I stated that the February l8th, 2011 Order contained a forged signature of the presiding Judge Nadel and that the Order was Void and of no legal effect; The Defendant (DRC) did not provide the Court of Claims with any authority that would suggest DRC had authority to refuse to enforce the Entry Granting Motion For Jail Time Credit, filed by the trial court on February 17th, 2011; That Entry was signed by the sentencing Judge Nadel, and forwarded to their office without delay; DRC had no authority to refuse to enforce that particular order or contact the Judge's Office; and the Bailiff had no authority to re do a Court's Order; I claimed that I am currently False Imprisoned at Pickaway Correctional Institution; and that I am entitled to immediate release from confinement, and monetary relief according to law; I further assert waiver of prepayment and that the information submitted in the foregoing Complaint is true and correct 6MC8

7 to the best of my perception; and that the supporting Exhibit (H) is admissible as evidence in a Court of Law; Further Affiant Sayeth Naught AMANT Sworn to, or affirmed, and subscribed in my presence this :Z day of 4^!^A, - 0ZL'd Notary Public o tu. My Commissic^ Carl. Bridgeforth Notary Public, State of Ohio 0 kly Comioission Expires '«I(IIIIItI``. ri /'8

8 , ^ - e..e t;<' NANo c,^^ Ohio Department of Rehr.^^ bififatiq11 and Correction Bureau of Sentence Computation P.O. Box 2650 y'b }^ Coiumbus, OH ^ OHtO,..r John Fi. Kasich, Govemor Gary C. Mohr, Direatar TO: Linda Hill, Legal Assistant Criminal Justice Section Office of Ohio Attorney General ivlike DeWine FROM: Lora Heiss, Corr. Records Mgt. Supervisor ^^^^ Bureau of Sentence Computation DATE: June 22, 2012 RE: Kenneth Pruitt, A Pursuant to your request for sentence computation. on the above offender,. I can. provide the following. Pruitt was: adniitted to ODRC on 8/4 i(la T3e was sentencedon Hamilton Co case :1 on 7/28/10: Judge Nadel sentenced him to a 5 years sentertce on eourit 1,.Possessson, Felony 3, count 2 Trafficking, Felony 2; count.3 and 6, Posscssion; Felony 1; counts 4 and 5,1'ra^cking, Fclony 1; and caunt 7, I-'taving Weapon While Under Disability, Felony 3. The counts were qrdered concurrent to each other for an aggregate sentence of 5 years. T'he entry vvas silent to jail credit so 7 days convey was applied frotn the day of sentencing up to his admission date. His computed release date was 7/26/15. Our office received a jail time credit filed 8I24/10 granting 11 days credit as of the date of sentencing. Pruitt was resentenced 9/22/10 on B0901.$51 for PRC notification with no change to his sentence of 5 years. No credit was listed in tlte resentencing entry. His 5 years sentence was reduced by 11 days credit plus 6 days convey for a total of 17 days. credit. His computed released was 7/15/1.5 which included I day of earned credit. Our office received an entry filed 2/17/2011 granting 1530 day credit on his sentetice. The judge's office was contacted and the bailiff infornted our office that. amount was incorrect and he would re-do the entry. We received. an entry filed 2/18/11 granting 553 days as of9/22/10 to which 4 days of conveyance time was added for a total of 557 days. His 5 years sentence was computed effect.ive his retuin from court date of 9/27/10 and reduced by 557 days of cred. it for an Expiration of Stated Term of 3/15%14 which included 2 days earned credit. Pruitt's sentence was reversed and remanded by the appellate court. He was resentenced on 11/7/11 to serve 5 years concurrently on counts 2, 3, 5, and 7, The resentencing entry granted. 964 days credit plus I day convey was added for a total credit of 965 days. Again, the judge's.office was dontacted andthe bailiff confirmed the amount in the entry was total credit and his release date should not chartge: His sentence was corriputed effective his return from court dmte of 11/9/11 and reduced by 965 days credit for a release date of 3/11/14 which included 6 days earned credit. Due to receiv'tng 6 more days of earned credit, Pruitt's Expiration of Stated Term is 3/5/14 as of this date. l}iope this information is helpful. (8)

9 11 Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH or KENNETH PRUITT ^ Plaintiff V. DEPARTMENT OF REHABILITATION AND CORRECTION Defendant Case No Judge Patrick M. McGrath Magistrate Robert Van Schoyck ENTRY OF DISMISSAL c.. N -^ o% C") I -tl [r1 ^ On December 28, 2012, defendant filed a motion to dismiss plaintiff's complaint pursuant to Civ.R. 12(B)(6). On January 7, 2013, plaintiff filed a response. In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations ofthe complaint are true and make all reasonable inferences in favor of'the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975). Plaintiff, an inmate in the custody and control of defendant, brings this action for false imprisonment. The complaint provides that on August 3, 2010, the Hamilton County Court of Common Pleas issued an order sentencing plaintiff to a five-year term of imprisonment in defendant's custody. Plaintiff states that because the sentencing order was silent as to the number of days of jail-time credit to which he was entitled, he subsequently filed a motion for jail-time credit with the sentencing court. Plaintiff further states that on February 17, 2011, the sentencing court issued an order granting him jailtime credit in the amount 1,530 days, but that on the following day, February 18, 2011, an order was issued which set aside the previous day's order and provided that he was to receive a total of 553 days of jail-time credit. Plaintiff alleges that the February 18, 2011 order, a copy of which is attached to the complaint, is "a forged document, illicitly sent by,^^

10 ,, FvlLED COURT OF CLAIMS OF OHIO Case No JAN 29 PN 12: 56 ) ENTRY the trial court's bailiff." Plaintiff asserts that defendant cannot rely on that order and must instead.apply the amount of jail-time credit specified in the February 17, 2011 order, which, according to plaintiff, means that his lawful term of incarceration expired on or about May 23, "False 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). "Pursuant to R.C (A)(1), the state may be held liable for the false imprisonment of its prisoners." Id. 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 that such judgment or order is void."' Id. at 111, quoting Diehl v. Friester, 37 Ohio St. 473, 475 (1882). "Thus, the state is immune from a common law claim of false imprisonment when the plaintiff was incarcerated pursuant to a facially-valid judgment or order, even if the facially-valid judgment or order is later determined to be void." McKinney v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-960, 2010-Ohio-2323, 9. Although plaintiff alleges that the February 18, 2011 order regarding jail-time credit is invalid on the grounds that it is a forgery, his complaint identifies nothing on the face of the order that would indicate its invalidity. Even if plaintiff could present extrinsic evidence to support his allegation, "[f]acial invalidity does not require the consideration of extrinsic information ***." Id. at 12. Furthermore, to the extent that plaintiff claims that defendant "neglected [its] statutory duty to ascertain accurate expiration of plaintiff's sentence," it is well-settled that whereas defendant "has a mandatory duty pursuant to R.C to credit an inmate with jail time already served, it is the trial court that makes the factual determination as to the number of days of confinement that a defendant is entitled to have credited toward his sentence." State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio -,.

11 ,,. FILED COURT":0F CLAIMS OF OHIO 2013 JAN 29 PM 12: 56 Case No ENTRY St.3d 476, 2003-Ohio-2061, 11 7 imprisonment claim against defendant. Accordingly, plaintiff cannot maintain a false Moreover, to the extent that plaintiff challenges the propriety of his sentence, including the amount of jail-time credit allowed, "the statute governing actions in the Court of Claims, R.C , was not intended to confer jurisdiction for the Court of Claims to review criminal proceedings occurring in the court of common pleas." Perry v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11 AP-571, 2012-Ohio-452, 22. For the foregoing reasons, defendant's motion to dismiss is GRANTED and plaintiff's complaint is DISMISSED. All other pending motions are DENIED as moot. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the jour,nal. cc: / r.^. 4 / I PATRICK M. MCGRATH Judge, Craig S. Rapp Assistant Attorney General 150 East Gay Street, 18th Floor Columbus, Ohio Kenneth Pruitt, #A P.O. Box 209 Orient, Ohio