[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.
