[Cite as Freeman v. Mohr, 2013-Ohio-2238.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
DWIGHT FREEMAN (#471-218), :
:
Plaintiff-Appellant, : Case No. 11CA3461
:
vs. :
:
GARY C. MOHR, DIRECTOR : DECISION AND JUDGMENT
OHIO DEPT. OF REHAB. & : ENTRY
CORR., et al. :
:
Defendants-Appellees. : Released: 05/01/13
_____________________________________________________________
APPEARANCES:
Dwight Freeman, Youngstown, Ohio, Appellant, pro se.
Michael DeWine, Ohio Attorney General, and Debra Gorrell Wehrle,
Assistant Attorney General, Columbus, Ohio, for Appellees.
_____________________________________________________________
McFarland, P.J.
{¶1} Dwight Freeman, appeals the decision of the trial court
dismissing his complaint against Appellees, Gary Mohr, the director of the
Department of Rehabilitations and Corrections, Warden Morgan, the warden
at Southern Ohio Correctional Facility, and correctional officers Burk,
Miller and Wiget, pursuant to Civ.R. 12(B)(1) based upon lack of
jurisdiction, and also Civ.R. 12(B)(6) for failure to state a claim upon which
relief can be granted. On appeal, Freeman (Appellant herein) questions
Scioto App. No. 11CA3461 2
whether 1) the common pleas court properly determined that Appellant’s
complaint failed to state a claim upon which relief may be granted
“inasmuch” as Appellant failed to exhaust mandatory administrative
remedies and failed to identify previous case dismissals; and 2) whether the
common pleas court lacked subject matter jurisdiction.
{¶2} In light of our determination that the trial court properly
concluded it lacked subject matter jurisdiction over Appellant’s state law
claims, Appellant’s second assignment of error is overruled. Further,
because we conclude that the trial court properly determined Appellant
failed to comply with R.C. 2969.25 and 2969.26 in filing his complaint,
Appellant’s remaining claims were properly dismissed as well. Thus,
Appellant’s first assignment of error is also overruled. Accordingly, the
decision of the trial court is affirmed.
FACTS
{¶3} On June 14, 2011, Appellant filed a complaint against,
Appellees, Gary Mohr, the director of the Department of Rehabilitation and
Correction, Warden Morgan, the warden at Southern Ohio Correctional
Facility where Appellant was, at one time, incarcerated, and correctional
officers Burk, Miller, and Wiget, as well as several other John Doe
employees of the correctional facility. The complaint alleged several civil
Scioto App. No. 11CA3461 3
rights violations under the Ohio Constitution and 42 U.S.C. § 1983, as well
as state law claims of assault and battery, refusal to provide proper medical
treatment, dereliction of duty in violation of R.C. 2921.44, and failure to
train and discipline employees. The complaint further requested
compensatory and punitive damages.
{¶4} Appellant’s complaint stemmed from allegations of events that
allegedly occurred on March 11, 2011. Specifically, Appellant alleged that
when he was being escorted to the medical department for chest pain, he was
physically assaulted by officers Burk, Miller and Wiget. Appellant alleged
that the officers physically assaulted him causing injury to his stomach,
shoulder, arm, neck, face and head. Appellant alleged that the officers also
made racial slurs, used chemical mace on him, all while Appellant was in
restraints, and then denied Appellant medical treatment for twelve days.
Appellant claims that the officers were, at all times, acting under of state
law.
{¶5} After seeking several extensions in which to file an answer to
the complaint, Appellees instead filed a motion to dismiss on August 5,
2011. Appellees’ motion to dismiss requested that Appellant’s complaint be
dismissed under Civ.R. 12(B)(1) for lack of subject matter jurisdiction, and
Civ.R. 12(B)(6) for failure to state a claim upon which relief may be
Scioto App. No. 11CA3461 4
granted, as well as based upon Appellant’s failure to comply with
R.C. 2969.25 and R.C. 2969.26 in filing his complaint.1 In response to
Appellees’ motion, Appellant filed a memorandum in opposition on August
15, 2011, seeking to cure the deficiencies pointed out in Appellees’ motion.
For instance, Appellant attached to his memorandum a document purporting
to be an affidavit stating he had exhausted his administrative remedies and
also listing all of his prior civil actions brought against government entities
or employees. Appellees filed a reply memorandum that Appellant’s
purported affidavit was invalid because it was not properly notarized.
{¶6} Subsequently, on November 4, 2011, the trial court issued an
entry granting Appellees’ motion to dismiss. In its decision, the trial court
reasoned it lacked subject matter jurisdiction pursuant to Civ.R. 12(B)(1),
and that pursuant to Civ.R. 12(B)(6), Appellant’s complaint failed to state a
claim upon which relief could be granted “inasmuch” as Appellant “has
failed to both exhaust mandatory remedies and has failed to identify
previous case dismissals before filing this action, as mandated under Revised
Code Sections 2969.25 and 2969.26.” It is from this entry that Appellant
1
R.C. 2969.25 requires that an inmate, at the time he commences a civil action or appeal against a
government entity or employee, file with the court “an affidavit that contains a description of each civil
action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal
court.” R.C. 2969.26 governs the prison grievance system and requires that an inmate, upon commencing a
civil action or appeal against a government entity or employee and if that action is subject to the grievance
system for state correctional institutions, file an affidavit with the court “stating that the grievance was filed
and the date on which the inmate received the decision regarding the grievance,” as well as “[a] copy of
any written decision regarding the grievance from the grievance system.”
Scioto App. No. 11CA3461 5
now brings his appeal, setting forth the following assignments of error for
our review.
ASSIGNMENTS OF ERROR
I. WHETHER THE COMMON PLEAS COURT PROPERLY
DETERMINED THAT APPELLANT’S COMPLAINT FAILED
TO STATE A CLAIM UPON WHICH RELIEF MAY BE
GRANTED INASMUCH AS APPELLANT FAILED TO
EXHAUST MANDATORY ADMINISTRATIVE REMEDIES
AND FAILED TO IDENTIFY PREVIOUS CASES.
II. WHETHER THE COMMON PLEAS COURT LACKS SUBJECT
MATTER JURISDICION.”
ASSIGNMENT OF ERROR II
{¶7} For ease of analysis, we address Appellant’s assignments of
error out of order. In his second assignment of error, Appellant contends
that the trial court erred in dismissing his complaint pursuant to Civ.R.
12(B)(1) based upon lack of subject matter jurisdiction. Appellant presents
no argument or citation to authority in support of this assignment of error,
but instead simply concludes that the common pleas court did not lack
jurisdiction over his “excessive force” and “deliberate indifference” claim.
Appellees counter by arguing that Appellees are entitled to immunity on all
state law claims and that pursuant to R.C. 2743.02(F), the Ohio Court of
Claims is vested with exclusive, original jurisdiction to decide the question
of immunity. As such, Appellees contend that the common pleas court
Scioto App. No. 11CA3461 6
lacked subject matter jurisdiction over Appellant’s state law claims. Based
upon the following reasoning, we agree with Appellees.
{¶8} The legal standard for deciding a Civ.R. 12(B)(1) motion to
dismiss for lack of subject-matter jurisdiction is “whether any cause of
action cognizable by the forum has been raised in the complaint.” State ex
rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989) (per
curiam). A determination of whether a court has subject-matter jurisdiction
involves a question of law that we review de novo. Roll v. Edwards, 156
Ohio App.3d 227, 2004-Ohio-767, 805 N.E.2d 162, ¶ 15; citing Shockey v.
Fouty, 106 Ohio App.3d 420, 424, 666 N.E.2d 304 (4th Dist. 1995).
{¶9} Under Section 16, Article I of the Ohio Constitution, “[s]uits
may be brought against the state, in such courts and in such manner, as may
be provided by law.” R.C. 2743.02(A)(1) provides that “[t]he state hereby
waives its immunity from liability * * * and consents to be sued, and have
its liability determined, in the court of claims created in this chapter in
accordance with the same rules of law applicable to suits between private
parties * * *.” Moreover, R.C. 2743.03(A)(1) provides that the Court of
Claims “has exclusive, original jurisdiction of all civil actions against the
state permitted by the waiver of immunity contained in section 2743.02 of
Scioto App. No. 11CA3461 7
the Revised Code* * *.” The term “state” includes “all departments” of the
state. R.C. 2743.01(A).
{¶10} As set forth above, Appellant’s complaint alleged several state
law claims, and, in conjunction therewith, sought compensatory and punitive
damages. As this Court has previously recognized, “ ‘[i]f a cause of action
involves a civil suit for money damages against the state, the Court of
Claims has exclusive, original jurisdiction even when ancillary relief-such as
an injunction or declaratory judgment-is sought in the complaint.’ ” Parsons
v. Dept. of Youth Services, 4th Dist. No. 09CA3302, 2010-Ohio-284, ¶ 10;
quoting State ex rel. Blackwell v. Crawford, 106 Ohio St.3d 447, 2005-Ohio-
5124, 835 N.E.2d 1232, ¶ 20.
{¶11} Here, Appellant failed to first file his complaint in the Ohio
Court of Claims. “Under R.C. 2743.02(F), the Court of Claims has
exclusive, original jurisdiction to determine whether a state officer or
employee is entitled to immunity under R.C. 9.86.” Parsons at ¶ 12. Thus,
the trial court did not err in concluding it was without jurisdiction to
consider Appellant’s state law claims, and as such, it properly dismissed that
portion of Appellant’s complaint pursuant to Civ.R. 12(B)(1). Accordingly,
Appellant’s second assignment of error is overruled.
Scioto App. No. 11CA3461 8
ASSIGNMENT OF ERROR I
{¶12} In his first assignment of error, Appellant contends that the
trial court erred in dismissing his complaint under Civ.R. 12(B)(6) for failure
to state a claim upon which relief may be granted, “inasmuch” as Appellant
failed to exhaust mandatory administrative remedies and failed to identify
previous case dismissals. Much like his second assignment of error,
Appellant simply concludes that there was no need for him to attach this
information to his original complaint, and states that all of the required
documentation was filed as an attachment to his memorandum in opposition
to Appellees’ motion to dismiss.
{¶13} Appellees contend, on the contrary, that compliance with the
filing requirements of R.C. 2969.25 and 2969.26 was mandatory at the time
of filing, and that even if it was not, Appellant’s attempt to cure the
deficiency by attaching the documents to his memorandum in opposition
failed because the document did not contain a valid notary. Appellees also
contend that the trial court correctly dismissed Appellant’s remaining claims
under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be
granted with regard to Director Mohr and Warden Morgan, to the extent that
the claims were based upon the doctrine of respondeat superior, arguing that
Scioto App. No. 11CA3461 9
there is no liability on a vicarious liability or respondeat superior theory
under 42 U.S.C. § 1983 for failure to act.
{¶14} As this Court previously noted in Warwick v.
DeWitt, 4th Dist. No. 01CA2613, 2002 WL 59667, *2:
“42 U.S.C.S § 1997e(a) states: No action shall be brought with
respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies
as are available are exhausted. (Emphasis added).”
As mentioned above, R.C. 2969.26 provides for a grievance procedure that
inmates are required to follow when initiating a civil action in court, which
requires that an inmate shall file with the court:
“(1) An affidavit stating that the grievance was filed and the
date on which the inmate received the decision regarding the
grievance.
(2) A copy of any written decision regarding the grievance from
the grievance system. See R.C. 2969.26(A)(1) and (2).” See
also Warwick at *2.
{¶15} Additionally, as previously noted above, R.C. 2969.25
provides in section (A) that:
Scioto App. No. 11CA3461 10
“At the time that an inmate commences a civil action or appeal
against a government entity or employee, the inmate shall file
with the court an affidavit that contains a description of each
civil action or appeal of a civil action that the inmate has filed
in the previous five years in any state or federal court.”
As in Warwick, Appellant failed to satisfy the requirements of R.C.
2969.26(A) in initially filing his complaint. Appellant likewise failed to file
an affidavit setting forth his cases in the previous five years, as required by
R.C. 2969.25(A).
{¶16} Although Appellant attempted to cure these deficiencies by
attaching a purported affidavit to his later filed memorandum in opposition
to Appellees’ motion to dismiss, the purported affidavit lacked a valid
notarial seal. As such, the affidavit itself was invalid. See State ex rel.
Hightower v. Russo, 8th Dist. No. 82321, 2003-Ohio-3679, ¶ 5 (stating that
an affidavit lacking a notary fails to comply with the requirements of R.C.
2319.01 through 2319.04.) R.C. 2319.02 defines an affidavit as “a written
declaration under oath, made without notice to the adverse party.”
{¶17} Further, as noted by the Eleventh District in State ex rel.
Trawick v. Trumbull Corr. Inst., 11th Dist. No. 2012-T-0071, 2012-Ohio-
5839, ¶ 15:
Scioto App. No. 11CA3461 11
“The Ohio Supreme Court has maintained, with ‘longstanding
insistence,’ that ‘only a written declaration made under oath
before a proper officer qualifies as an “affidavit.” ’ Toledo Bar
Assn. v. Neller, 102 Ohio St.3d 1234, 2004-Ohio-2895, 809
N.E.2d 1152, ¶ 24. ‘Notaries public are * * * the persons who
most often administer the oaths that appear on affidavits.’ Id. at
¶ 11.”
{¶18} In light of Appellant’s failure to comply with the mandatory
filing requirements of R.C. 2969.25 and 2969.26, we conclude that the trial
court properly dismissed Appellant’s remaining claims. Martin v. Ohio
Dept. of Rehabilitation and Correction, 140 Ohio App.3d 831, 836, 749
N.E.2d 787, (4th Dist. 2001) ( finding that “exhaustion of administrative
remedies is a requirement in a prisoner’s Section 1983 claim that must be
specifically averred in the complaint, and that failure to do so renders the
complaint subject to dismissal. Civ.R. 9(C).”).2 Further, we conclude that
the trial court’s dismissal of Appellant’s remaining claims was appropriate,
without resort to the application of Civ.R. 12(B)(6). See Semenchuck v.
Ohio Dept. of Rehabilitation and Correction, 10th Dist. No., 10AP-19, 2010-
Ohio-5551, ¶ 28 (“Compliance with R.C. 2969.26 is mandatory and the
2
Civ.R. 9(C) addresses conditions precedent when pleading special matters.
Scioto App. No. 11CA3461 12
failure to satisfy this statutory requirement is grounds for dismissal.”)
(Internal citations omitted); State ex rel. Trawick v. Trumbull Corr. Inst.,
supra, at ¶ 14; quoting State ex rel. White v. Bechtel, 99 Ohio St.3d 11,
2003-Ohio-2262, 788 N.E.2d 634, ¶ 5 (“The requirements of R.C. 2969.25
are mandatory, and failure to comply with them subjects an inmate's action
to dismissal.”).
{¶19} Further, although Appellees argue that the claims against
Director Mohr and Warden Morgan that were based upon the theory of
respondeat superior were properly dismissed in accordance with Civ.R.
12(B)(6), a review of the trial court’s entry indicates that it did not reach its
decision on this basis, but rather hinged its decision on Appellant’s failure to
comply with the mandatory statutory filing requirements. As such, we see
no need to address this additional issue raised by Appellees on appeal. Thus,
Appellant’s first assignment of error is overruled.
{¶20} Having failed to find any merit in the assignments of error
raised by Appellant, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
Scioto App. No. 11CA3461 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs herein
be taxed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
Freeman v. Mohr
Combined Opinion