Appellant Glen Mullins appeals pro se from a judgment of the Common Pleas Court of Allen County dismissing his complaint pursuant to Civ.R. 12(B)(6).
Appellant, an inmate at the Lima Correctional Institution, filed a complaint against prison officer appellee Steven Birchfield individually and in his capacity as a state employee, alleging Birchfield had violated both state and federal law. *Page 172
In his complaint, Mullins alleges that Birchfield violated Sections 1983, 1985(3) and 1986, Title 42, U.S. Code and Ohio state law by discriminating against him and interfering with his mail correspondence, thereby denying him access to courts, all as retaliation against Mullins for lawsuits he had filed against other prison officers.
The trial court dismissed Mullins's complaint without prejudice, citing Friedman v. Johnson (1985), 18 Ohio St.3d 85, 18 OBR 122, 480 N.E.2d 82, which held that an action for damages against the sovereign state of Ohio and its agencies and officers may not be maintained in any court other than the Court of Claims, and R.C. 9.86, which provides that state officers and employees are immune from personal liability unless they acted beyond the scope of their employment or acted "with malicious purpose, in bad faith, or in a wanton or reckless manner."
It is from this judgment that appellant now appeals, asserting a single assignment of error:
"The trial court abused its discretion in dismissing appellant [sic] complaint pursuant to R.C. 2743.02 and R.C.9.86, in ruling that the court lack [sic] jurisdiction of the subject matter because the Court of Claims must first determine whether the state employee are [sic] entitled to personal immunity."
R.C. 2743.02, as amended on October 20, 1987, states in pertinent part:
"(F) A civil action against an officer or employee, as defined in section 109.36 of the Revised Code, that alleges that the officer's or employee's conduct was manifestly outside the scope of his 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, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action.
"The filing of a claim against an officer or employee under this division tolls the running of the applicable statute of limitations until the court of claims determines whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code."
Pursuant to R.C. 2743.02(F) and R.C. 9.86, appellant's state law claims were properly dismissed by the trial court. In order to bring such claims against a state employee, an action to determine whether the employee is entitled to immunity must first be filed in the Court of Claims. Conley v. Shearer (1992), *Page 173
64 Ohio St.3d 284, 595 N.E.2d 862; State ex rel. Sanquily v. LucasCty. Court of Common Pleas (1991), 60 Ohio St.3d 78,573 N.E.2d 606.
R.C. 2743.02(F) and 9.86 do not apply to actions brought against state employees based on federal law. Conley,64 Ohio St.3d at 292, 595 N.E.2d at 869. As noted in Conley, R.C. 9.86 applies only to civil actions arising under state law. Id.
Appellant's assignment of error is overruled in part and sustained in part. The trial court properly dismissed appellant's claims which are based on state law but improperly dismissed his claims which are based on federal law.
Accordingly, the judgment of the Common Pleas Court of Allen County is affirmed in part and reversed in part and this action is remanded to that court for further proceedings consistent with this opinion.
Judgment affirmed in part,reversed in part,and cause remanded.
HADLEY, J., concurs.
EVANS, P.J., concurs separately.