Imburgia v. Ohio Dept. of Rehab. & Corr.

2011 Ohio 1768

Opinion

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor Columbus, OH 43215

614.387.9800 or 1.800.824.8263 www.cco.state.oh.us

CHARLES IMBURGIA

Plaintiff

v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

Defendant

Case No. 2010-12214-AD

Deputy Clerk Daniel R. Borchert

ENTRY OF DISMISSAL

{¶ 1} On November 29, 2010, plaintiff, Charles Imburgia, filed a complaint against defendant, Department of Rehabilitation and Correction. Plaintiff alleges on June 14, 2010 at approximately 9:55 a.m., defendant’s agent refused to allow him to use the restroom facility resulting in him defecating on himself. Plaintiff seeks damages in the amount of $2,500.00. The filing fee was waived.

{¶ 2} On December 22, 2010, defendant filed a motion to dismiss. Defendant asserts that plaintiff’s case should be dismissed on two grounds. First, plaintiff asserts that defendant’s agent acted manifestly outside the scope of defendant’s agent’s employment, with malicious purpose, in bad faith or in wanton or reckless manner. This court does not have subject matter jurisdiction concerning an individual who acts beyond the scope of his employment. Second, plaintiff asserts his constitutional rights were violated. It is well settled that constitutional claims are not actionable in the Court of Claims. For these reasons plaintiff’s case should be dismissed.

{¶ 3} On December 30, 2010, plaintiff filed an objection to defendant’s motion to

Case No. 2010-12214-AD -2- ENTRY

dismiss. It appears from a reading of this document that plaintiff asserts defendant is in violation of the Eighth Amendment of the United States Constitution. Constitutional claims are not actionable in the Court of Claims. Bleicher v. Univ. of Cincinnati College of Med. (1992), 78 Ohio App. 3d 302, 604 N.E. 2d 783; Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App. 3d 170, 528 N.E. 2d 607.

{¶ 4} Therefore, defendant’s motion to dismiss is GRANTED. Plaintiff’s case is DISMISSED. the court shall absorb the court costs of this case.

________________________________

DANIEL R. BORCHERT Deputy Clerk

Entry cc:

Charles Imburgia, #502-009 Stephen A. Young 1800 S. Avon Belden Road Department of Rehabilitation Grafton, Ohio 44044 and Correction 770 West Broad Street Columbus, Ohio 43222

DRB/laa Filed 1/21/11 Sent to S.C. reporter 4/8/11