[Cite as Howard v. Mgt. & Training Corp., 2019-Ohio-4408.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
JEFFERY L. HOWARD,
PLAINTIFF-APPELLANT, CASE NO. 9-19-40
v.
MANAGEMENT AND TRAINING
CORPORATION, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Marion County Common Pleas Court
Trial Court No. 2016CV0519
Judgment Affirmed
Date of Decision: October 28, 2019
APPEARANCES:
Jeffrey L. Howard Appellant
Edward O. Patton for Appellees, Management and Training
Corporation, et al.,
Case No. 9-19-40
SHAW, J.
{¶1} Plaintiff-appellant, Jeffery L. Howard, appeals the June 14, 2019
judgment of the Marion County Court of Common Pleas granting the motion to
dismiss his complaint filed by defendants-appellees, Management and Training
Corporation, et al. (“collectively referred to as “MTC” or “Appellees”), on the basis
that Howard failed to comply with the mandates of R.C. 2969.25 and R.C. 2969.26.
{¶2} Howard is an inmate at the North Central Correctional Complex
(“NCCC”), which is operated by MTC. In 2017, Howard first initiated this civil
suit for monetary damages in the Marion County Court of Common Pleas, alleging
that Appellees violated his First, Eighth, and Fourteenth Amendment rights under
the United States Constitution. The case was removed to Federal District Court
where all but two state claims were dismissed through summary judgment.1
{¶3} On April 2, 2019, the District Court remanded the remaining claims to
the Common Pleas Court, which involved Howard’s allegations, premised upon a
theory of common law negligence, that he was not provided with appropriate prison-
issued winter footwear and that he received inadequate medical care for the
osteoarthritis in his feet. Howard also alleged that the Chief Inspector and MTC
1
The record reveals that the District Court granted summary judgment in favor of Appellees on the basis that
Howard’s claims were either time-barred or did not state a claim for which relief could be granted. (Doc.
No. 23).
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negligently hired, supervised, retained, and disciplined personnel employed at the
correctional facility.
{¶4} On May 10, 2019, Appellees filed a motion to dismiss Howard’s claim
pursuant to Civ.R. 12(B)(6).
{¶5} On June 14, 2019, the Common Pleas Court granted Appellees’ motion
to dismiss the complaint on the grounds that Howard failed “to exhaust all
administrative remedies prior to commencing an action pursuant to R.C. 2969.25
and 2969.26(A).” (Doc. No. 31).
{¶6} Howard filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. ONE
COURT COMMITTED PLAIN ERROR DISMISSING
APPELLANT’S COMPLAINT FOR FAILURE TO EXHAUST
AND FAILURE TO COMPLY WITH O.R.C. 2969.26(A)(2).
ASSIGNMENT OF ERROR NO. TWO
COURT DISMISSAL FOR FAILURE TO EXHAUST WAS
ERRONEOUS AND INJUDICIOUS.
ASSIGNMENT OF ERROR NO. THREE
THE TRIAL COURT DISMISSAL OF APPELLANT’S
COMPLAINT PURSUANT TO OHIO REVISED CODE—ORC
2969.25 AND 2969.26(A)(1&2) IS ERRONEOUS AND PLAIN
ERROR.
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Case No. 9-19-40
ASSIGNMENT OF ERROR NO. FOUR
THE TRIAL COURT ABUSED ITS DISCRETION DISMISSAL
[SIC] APPELLANT’S COMPLAINT PURSUANT TO O.R.C.
2969.26(A)(2).
ASSIGNMENT OF ERROR NO. FIVE
THE TRIAL COURT DEPENDENCE ON CASE THAT HAD
NO PRECEDENTIAL VALUE WAS ERRONEOUS AND
PLAIN ERROR.
{¶7} Due to the fact all the assignment of errors challenge the Common Pleas
Court’s decision to grant Appellees’ motion to dismiss the complaint, we elect to
address them together.
First, Second, Third, Fourth and Fifth
Assignments of Error
{¶8} On appeal, Howard claims the Common Pleas Court erred in granting
Appellees’ motion to dismiss the complaint. Initially, we note that in his brief
Howard appears to conflate his arguments pertaining to his Federal Constitutional
claims dismissed by the District Court with the negligence claims handled by the
Common Pleas Court. As previously stated, this appeal only concerns the state
negligence claims raised by Howard that were resolved by the Common Pleas Court.
Standard of Review
{¶9} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted tests only the legal sufficiency of the complaint. State
ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992).
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For a court to dismiss on this basis, “it must appear beyond doubt from the complaint
that the 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), syllabus. In ruling
on a Civ.R. 12(B)(6) motion, the court must accept the factual allegations contained
in the complaint as true and draw all reasonable inferences from these facts in favor
of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). If
there is a set of facts consistent with the complaint that would allow for recovery,
the court must not grant the motion to dismiss. York v. Ohio State Hwy. Patrol, 60
Ohio St.3d 143, 144 (1991).
Failure to Exhaust Prison Inmate Grievance Procedure
{¶10} The Common Pleas Court granted the motion to dismiss Howard’s
complaint on the grounds he failed to establish that he exhausted all administrative
remedies through the prison inmate grievance procedure prior to commencing an
action pursuant to R.C. 2969.26(A). R.C. 2969.26(A) provides that if an inmate
commences a civil action or appeal against a governmental entity or employee, and
if the inmate’s claim is subject to the grievance procedure system, the inmate must
file: (1) an affidavit stating the grievance was filed, along with the date on which
the decision regarding the grievance was received; and (2) a copy of any written
decision received regarding the grievance from the grievance system.
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Case No. 9-19-40
{¶11} The inmate grievance procedure is designed to address inmate
complaints related to any aspect of institutional life that directly and personally
affects the grievant. It is a three-step process set out in Ohio Admin.Code 5120-9-
31. Step one is the filing of an informal complaint. Ohio Admin.Code 5120-9-
31(J)(1). The informal complaint is to be filed within fourteen days of the incident
giving rise to the complaint. The staff must then respond to the informal complaint
within seven days. Step two is to obtain a notification of grievance, if the inmate is
unsatisfied with the resolution of the informal complaint. Ohio Admin. Code 5120-
9-31(J)(2). The notification of grievance is to be filed within fourteen days of the
informal complaint response. The inspector of institutional services shall provide a
written response to the grievance within fourteen days of receipt. Step three is the
filing of an appeal of the disposition of grievance to the office of the Chief Inspector
of ODRC. Ohio Admin.Code 5120-9-31(J)(3). This appeal must be filed within
fourteen days of the disposition of grievance.
{¶12} Notably, an inmate does not exhaust his remedies under Ohio
Admin.Code 5120-9-31 until he has received a decision in an appeal to the office of
the Chief Inspector. State ex rel. Sloan v. Mohr, 7th Dist. Belmont No. 16 BE 0055,
2017-Ohio-7504, ¶ 7. The Supreme Court of Ohio has recently held, in another
matter involving the same parties in the case sub judice, that “compliance with R.C.
2969.26(A) is mandatory and that an inmate’s failure to comply with the statute
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warrants dismissal of the inmate’s action.” State ex rel. Howard v. Turner, 156
Ohio St. 3d 285, 2019-Ohio-759, ¶ 6.
{¶13} Here, the record demonstrates that Howard has failed to comply with
R.C. 2969.26(A). Nothing in his complaint nor the exhibits attached to the
complaint reflects that he has pursued the inmate grievance procedure concerning
his negligence claims. While Howard has attached as exhibits to his complaint
various copies purportedly documenting his pursuit of relief under the grievance
system concerning his Federal Constitutional claims, he has not included with his
complaint any documents demonstrating his efforts to administratively resolve his
state negligence claims nor has he included an affidavit attesting to his having
exhausted his remedies under the grievance system with respect to these claims.
Therefore, the record supports the Common Pleas Court’s determination that
Howard failed to comply with R.C. 2969.26(A).
Affidavit of Prior Civil Actions
{¶14} In addition, R.C. 2969.25(A) requires that at the time an inmate
commences a civil action against a government entity or employee, the inmate must
file an affidavit that contains a (1) a brief description of the nature of the civil action
or appeal; (2) the case name, case number, and the court in which the civil action or
appeal was brought; (3) the name of each party to the civil action or appeal; and (4)
the outcome of the civil action or appeal. “The requirements of R.C. 2969.25 are
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mandatory and failure to comply with them requires dismissal of an inmate's
complaint.” State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, ¶ 4.
“[T]he affidavit required by R.C. 2969.25(A) must be filed at the time the complaint
is filed, and an inmate may not cure the defect by later filings.” Id., citing Fuqua v.
Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9. Here, the record indicates that
Howard failed to file an affidavit in compliance with R.C. 2969.25(A) when he
initiated this lawsuit by filing his complaint. Accordingly, we find that the trial
court’s decision to dismiss the complaint for the failure to comply with R.C.
2969.25(A) is supported by the record.
Failure to State a Claim
{¶15} Even assuming Howard complied with the statutory mandates
previously discussed, he failed to allege in his complaint any operative facts to
substantiate his claim that the Chief Inspector and MTC has negligently hired,
supervised, retained, and disciplined NCCC personnel. Specifically, Howard has
failed to plead sufficient facts to demonstrate incompetence of the employee, actual
or constructive knowledge of the incompetence on behalf of the employer, and an
act of omission by the employee. See, Kingston Mound Manor I v. Keeton, 4th
Pickaway No. 18CA15, 2019-Ohio-3260, ¶ 33 (setting forth the elements of a
negligent hiring, retention, or supervision claim).
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{¶16} Based on the foregoing, we conclude that the trial court did not err in
dismissing Howard’s complaint on the grounds he failed to comply with the
requirements of R.C. 2969.25 and 2969.26. Accordingly, the assignments of error
are overruled and the judgment of the trial court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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