[Cite as McKinney v. Noble Corr. Inst., 2011-Ohio-3174.]
                              STATE OF OHIO, NOBLE COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


LAMONT McKINNEY,               )
                               )                           CASE NO. 10 NO 370
    PLAINTIFF-APPELLANT,       )
                               )
    - VS -                     )                                  OPINION
                               )
NOBLE CORRECTIONAL INSTITUTION,)
                               )
    DEFENDANT-APPELLEE .       )


CHARACTER OF PROCEEDINGS:                                  Civil Appeal from Common
                                                           Pleas Court, Case No. 210-0005


JUDGMENT:                                                  Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                                   Lamont McKinney, Pro-se
                                                           #A 606-776
                                                           Chillicothe Correctional Institution
                                                           P.O. Box 5500
                                                           Chillicothe, OH 45601


For Defendant-Appellee:                                    No Brief Filed.




JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich


                                                           Dated: June 13, 2011
                                                                                          -2-




DeGenaro, J.
       {¶1}    Pro-se Plaintiff-Appellant, Lamont McKinney, appeals the January 12, 2010
judgment of the Noble County Court of Common Pleas sua sponte dismissing his
complaint against Defendant-Appellee, Noble Correctional Institution (NCI). On appeal
McKinney contends the court erroneously concluded McKinney asserted no cause of
action over which the court had jurisdiction.
       {¶2}    Upon review, McKinney's assignment of error is meritless. McKinney's
complaint challenged the actions of officials at NCI, the prison where he was
incarcerated, and he failed to exhaust his administrative remedies pursuant to R.C.
2969.26(A) before instituting this lawsuit. As such, the trial court properly dismissed his
complaint, and the judgment of the trial court is affirmed.
                              Facts and Procedural History
       {¶3}    McKinney is currently incarcerated at Chillicothe Correctional Institution but
was incarcerated at NCI at the time of the alleged incident. On January 11, 2010,
McKinney filed a complaint against NCI in the Noble County Court of Common Pleas. He
listed "failure to investigate" as his sole cause of action. He requested the following relief:
"(A) an order, ordering the Defendant to fully investigate the action at hand, (B) to award
proper as deemed fit, compensation for Damages, undue distress, and/or deprival of
rights, and violation of due process."
       {¶4}    In support of his complaint, McKinney attached a document entitled
"Memorandum in Support," which is nothing more than McKinney's sworn affidavit.
McKinney averred that on October 2, 2009, he was assaulted by another inmate. That
same day, he and the other inmate were escorted to "segregation" without handcuffs.
McKinney remained in segregation until October 9, 2009; and the second inmate
remained there until October 19, 2009. McKinney asked for, but was denied, medical
treatment on October 2, 7, 8, 21, and 30, 2009. Finally, McKinney listed five times during
October 2009 where he was moved from segregation to the general population. He listed
only one time where the other inmate had been moved.
                                                                                       -3-


       {¶5}   On January 12, 2010, the day after McKinney filed his complaint, the trial
court sua sponte dismissed it in a journal entry stating in its entirety:
       {¶6}   "The Court, having reviewed the pleadings in a light most favorable to the
Plaintiff, finds that no cause of action had been alleged by Plaintiff over which this court
would have jurisdiction. This matter is dismissed. Costs assessed to Plaintiff."
       {¶7}   McKinney timely appealed to this Court. However, he attached exhibits to
his Appellant's Brief which are not contained in the trial court record, and will not be
considered on appeal. See Gray v. Totterdale Bros. Supply Co., Inc., 7th Dist. No. 07 BE
11, 2007-Ohio-4992, at ¶7.
                               Dismissal of the Complaint
       {¶8}   In his sole assignment of error, McKinney asserts:
       {¶9}   "The trial court abused their [sic] discretion by dismissal of the complaint
filed because the Noble County Common Pleas [sic] had proper authority, jurisdiction and
duty to accept the complaint."
       {¶10} The standard of review for a dismissal for lack of subject matter jurisdiction,
pursuant to Civ.R. 12(B)(1), is whether any cause of action cognizable by the forum has
been raised in the complaint. State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80,
537 N.E.2d 641, 644; Doyle v. Morgan, 7th Dist. No. 08 MA 113, 2009-Ohio-795, at ¶21.
An appellate court applies a de novo standard of review to such a dismissal. Green v.
Ohio Lottery Comm., 7th Dist. No. 09 MA 48, 2009-Ohio-6403, at ¶7.
       {¶11} Pursuant to R.C. 2969.26(A), 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.
       {¶12} Ohio Adm.Code 5120-9-31 explains the inmate grievance procedure in
more detail and states in pertinent part:
       {¶13} "The department of rehabilitation and correction shall provide inmates with
                                                                                          -4-


access to an inmate grievance procedure. This procedure is designed to address inmate
complaints related to any aspect of institutional life that directly and personally affects the
grievant. This may include complaints regarding policies, procedures, conditions of
confinement, or the actions of institutional staff." (Emphasis added.) Ohio Adm.Code
5120-9-31(A).     Further, subpart (K) provides that the grievance process must be
commenced by the inmate within fourteen (14) days of the incident, but does vest officials
with the discretion to waive the time limits if good cause is shown.
       {¶14} "Compliance with R.C. 2969.26 is mandatory and the failure to satisfy this
statutory requirement is grounds for dismissal." Semenchuk v. Ohio Dept. of Rehab. &
Corr, 10th Dist. No. 10AP-19, 2010-Ohio-5551, at ¶28, citing, State ex rel. Spurlock v.
Sevrey, 10th Dist. No. 06AP-1291, 2007-Ohio-3550; and Hamilton v. Wilkinson, 10th Dist.
No. 04AP-502, 2004-Ohio-6982.
       {¶15} McKinney failed to comply with R.C. 2929.26. The claim he raised in his
complaint is subject to the inmate grievance procedure system. See Ohio Adm.Code
5120-9-31(A). In the affidavit he attached to his complaint, McKinney only describes the
facts surrounding his claim. He does not aver that a grievance was filed, or provide, the
date he received a decision regarding a grievance. McKinney also failed to attach a copy
of any written decision regarding a grievance. Thus, there is no evidence in the record
that a grievance was ever filed.
       {¶16} Finally, the trial court properly dismissed McKinney's complaint sua sponte.
McKinney filed his complaint with the trial court over three months after the incident. Ohio
Adm.Code 5120-9-31(K) provides that the grievance process must be commenced within
fourteen (14) days of the incident. The record before the trial court is that neither a
grievance was filed nor that a waiver was granted. Compliance with R.C. 2969.26 is
mandatory. McKinney failed to file the requisite affidavit, nor can he, because he is
beyond the time limits to file a grievance set forth in Ohio Adm.Code 5120-9-31(K), which
is a prerequisite to filing in common pleas court. A trial court may dismiss an action sua
sponte without notice when the complaint is either frivolous or the plaintiff cannot prevail
on the facts as stated in the complaint. Concord Health Care Inc. v. Schroeder, 177 Ohio
                                                                                       -5-


App.3d 228, 2008-Ohio-3392, 894 N.E.2d 351, at ¶11, citing MBNA Am. Bank v. Canfora,
9th Dist. No. 23588, 2007-Ohio-4137, at ¶7, citing Dunn v. Marthers, 9th Dist. No.
05CA008838, 2006-Ohio-4923, at ¶11.
       {¶17} Further to the extent that McKinney alleges a section 1983 violation in his
complaint, 42 U.S.C. 1997(c) permits sua sponte dismissal pursuant to subpart (a), which
provides:
       {¶18} "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." 42 U.S.C. Code 1997(a).
       {¶19} Accordingly, McKinney's sole assignment of error is meritless and the
judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.
