[Cite as Lathan v. Ohio State Corr. Reception Ctr., 2016-Ohio-3348.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Darek Lathan,                                        :

                 Plaintiff-Appellant,                :
                                                                            No. 16AP-54
v.                                                   :                  (C.P.C. No. 15CV-9185)

Ohio State Correction Reception                      :                 (REGULAR CALENDAR)
Center et al.,
                                                     :
                 Defendants-Appellees.
                                                     :


                                           D E C I S I O N

                                       Rendered on June 9, 2016


                 On brief: Darek Lathan, pro se.

                 On brief: Michael DeWine, Attorney General, and Mindy
                 Worly, for appellees.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Darek Lathan, appeals an order of the Franklin County
Court of Common Pleas, entered on January 7, 2016, dismissing his complaint regarding
prison conditions. We affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On October 15, 2015, Lathan filed a complaint against "THE STATE OF
OHIO/CORR.RECEP CENTER OFFICER SPITLER." (Oct. 15, 2015 Compl.) Although
Lathan did not explain in his complaint whether the defendant in the action was the State
of Ohio, the prison, the prison guard (Officer Spitler), or some combination of two or all
three, a case filing information summary sheet submitted contemporaneously with the
complaint listed the following defendants: (1) State of Ohio; (2) Correction Reception
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No. 16AP-54
Center ("ODRC"); (3) Officer Dawson; (4) Officer Datillon; (5) Officer Noble; and (6)
Officer Spitler/Sergeant Colley. (Oct. 15, 2015 Civil Case Filing Information Sheet.)1
       {¶ 3} According to the complaint, Lathan was waiting in a queue at the ODRC
facility to use the phone during recreation period when he felt sudden bowel distress due
to a bout of diarrhea he had been experiencing. Lathan alleges that this diarrhea was
caused by the cold temperature of the water in the prison showers. He asked a nearby
officer, Spitler, if he could use one of the restrooms located in the common areas of the
unit rather than the toilet in his cell and explained his situation. Spitler said that such
restrooms were not for inmates to use, that Lathan was free to return to his cell to use the
restroom but, if he did, Officer Spitler would not be returning to let him out again for
recreation period.
       {¶ 4} Lathan therefore elected to stay in line and within ten minutes relieved his
bowels while wearing his pants. Whereupon Lathan left the line, washed out his clothing
in the shower, re-dressed, and returned to the line. After he returned to the line, other
inmates made jest of his accident. Lathan alleged an Eighth Amendment violation as well
as "Harrassment, embarrassment, riddiculing, emotional stress, personal injuries
Including, but not limited to, loss of enjoyment of life, physicalstress, fear of retaliation,
food tampering, unsafe housing, false conduct reports, Loss of rec, phone call, legal
research, mail tampering, placed in segragation purpose delay to parent institution,
intentional infliction of emotional stress." (Sic passim.) (Oct. 15, 2015 Compl. at ¶ 25.)
For his alleged injuries, Lathan sought compensatory damages of an amount greater than
$1,000,000 and punitive damages also in an amount greater than $1,000,000.
       {¶ 5} Initially no answer or appearance was filed by the defendants and Lathan
filed a motion for default. However, on December 4, 2015, the Ohio Attorney General's
Office filed a motion for leave to file a motion to dismiss explaining that although service
had been made on each of the named officers,2 it had not received notice of the case. On
December 7, 2015, the trial court granted the motion for leave and denied Lathan's
motion for default judgment. Shortly thereafter Lathan filed a motion for summary


1 Apparently there is no such person as Officer Noble. Officers Dawson, Datillon, and Sgt. Colley were
evidently sued in other cases by Lathan. See Dec. 4, 2015 Def. Mot. for Leave to File at 3.
2 Other than Officer Noble who does not exist.
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No. 16AP-54
judgment to which he attached an affidavit and copies of two complaints he apparently
filed while imprisoned regarding matters not addressed in the complaint.
      {¶ 6} On January 7, 2016, the trial court dismissed Lathan's complaint with
prejudice and denied as moot all of Lathan's remaining pending motions. The trial court
did so in rhyme:
                     Cold showers caused his bowels to malfunction
                                Or so the plaintiff claims
                             A strict uncaring prison guard
                             Is whom the plaintiff blames.

                              While in line for recreation
                             And little time for hesitation
                           His anal sphincter just exploded
                         The plaintiff's britches quickly loaded.

                           It made the inmates laugh and play
                           To see the plaintiff's pants this way
                             The foul, unsightly, putrid mess
                            Caused the plaintiff major stress.

                           Claiming loss and shame to boot
                           The plaintiff filed the present suit
                            But the law provideth no relief
                             For such unmitigated grief.

                             Neither runs nor constipation
                               Can justify this litigation
                            Whether bowels constrict or flex
                              De minimis non curat lex.

(Jan 7, 2016 Decision and Entry Granting Defs. Mot. to Dismiss.)
      {¶ 7} Lathan now timely appeals.
II. ASSIGNMENTS OF ERROR
      {¶ 8} Lathan asserts ten assignments of error:

              1. THE TRIAL COURT ERRORED IN ALLOWING
              DEFENDANTS TO FILE A MOTION WITHOUT SHOWING
              "EXCUSSABLE NEGLECT"

              2. THE TRIAL COURT ERRORED IN NOT GRANTING
              PLAINTIFF "DEFAULT JUDGMENT" PURSUANT TO CIVIL
              RULE 55
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No. 16AP-54
                3. THE TRIAL COURT ERRORED IN NOT GRANTING
                PLAINTIFF "SUMMARY JUDGMENT" PURSUANT TO
                CIVIL RULE 56

                4. THE TRIAL COURT ERRORED BY NOT APPLYING "RES
                JUDA CATA" TO DEFENDANTS MOTION TO ANSWER
                PLAINTIFF COMPLAINT

                5. THE TRIAL COURT ABUSED ITS DISCRETION BY
                DISMISSING PLAINTIFF COMPLAINT WITH A POME AND
                NO CASE LAW OR FINDINGS OF FACTS AND
                CONCLUSIONS

                6. THE TRIAL COURT ERRORED IN USING "ARBITARY
                DECISION" TO DISMISS PLAINTIFF COMPLAINT

                7. THE TRIAL COURT ERRORED IN NOT COMPLYING
                WITH CIVIL RULE 12(B)

                8. THE TRIAL COURT ERRORED IN NOT COMPLYING
                WITH CIVIL RULE 8(D)

                9. THE TRIAL COURT ERRORED IN NOT COMPLYING TO
                CIVIL RULE 6(B)(2)

                10. THE TRIAL COURT ERRORED IN NOT HOLDING
                DEFENDANT TO "RESPONDANT SUPERIOR"/"RES IPSA
                LOQUITUR"

(Sic passim.)
III. DISCUSSION
      {¶ 9} Ohio Appellate Rule 16 requires the appellant's brief to include:

                An argument containing the contentions of the appellant with
                respect to each assignment of error presented for review and
                the reasons in support of the contentions, with citations to the
                authorities, statutes, and parts of the record on which
                appellant relies.

(Emphasis added.) App.R. 16(A)(7).          Lathan's brief does not separately argue his
assignments of error. Thus, we may and shall disregard them. App.R. 12(A)(2). However,
in the interest of providing some closure in this case, we discuss why, for a multitude of
reasons, denying default to Lathan and granting the State's motion to dismiss was
appropriate.
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No. 16AP-54
   A. Failure to State a Claim
       {¶ 10} One reason a default becomes appropriate when a defending party fails to
answer a complaint is because the party is deemed to have admitted all the allegations not
timely denied. Civ.R. 8(D); Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hospital
Assn., 28 Ohio St.3d 118, 121-22 (1986); Lopez v. Quezada, 10th Dist. No. 13AP-389,
2014-Ohio-367, ¶ 12. However, Lathan's complaint essentially pled that he defecated in
his pants after choosing to wait in line rather than answer the call of nature in his prison
cell and suffered embarrassment as a result. The only involvement of the defendants in
this is that Lathan alleges that his bowel malfunction was brought on by cold showers in
the prison and that, had he been allowed to use a restroom other than the one in his
prison cell, he might not have dithered over whether he would lose his place in line so
long that he lost control of his anal sphincter. However, Lathan also pleads that he
regained his place in line after showering following the bowel movement. Thus, other
than being mocked, even according to the allegations in the complaint, Lathan suffered no
harm. Moreover, since the mocking was perpetrated by fellow prisoners and occurred as
a result of Lathan's own choice to excrete feces into his trousers rather than leave the line,
it is also not clear that there is a causal link between the alleged injury to his dignity and
any act or omission by the guard, prison, or State. In short, this fact situation does not
disclose a constitutional violation of any kind and is not a cause of action recognized in
the law. Even if the defendants admitted the truth of all those allegations, default would
not have been appropriate, because no conceivable cause of action existed in Lathan's
complaint for which any court could provide relief. For this same reason, dismissal for
failure to state a claim was appropriate. See Civ.R. 12(B)(6); Estate of Ridley v. Hamilton
Cnty. Bd. of Mental Retardation & Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-
2629, ¶ 13.
       {¶ 11} The trial court stated it another way: "De minimis non curat lex." (Jan. 7,
2016 Decision and Entry Granting Defs Mot. to Dismiss.); Decastro v. Wellston City
School Dist. Bd. of Edn., 94 Ohio St.3d 197, 199-200 (2002). This maxim can be restated
as, "the law does not concern itself with trifles." The maxim's function is "to place outside
the scope of legal relief the sorts of 'injuries' that are so small that they ' "must be accepted
as the price of living in society rather than made a federal case out of." ' " People v.
Durham, 391 Ill.App.3d 1100, 1103 (2009), quoting Pacini v. Regopoulos, 281 Ill.App.3d
                                                                                             6
No. 16AP-54
274, 280 (1996), quoting Swick v. Chicago, 11 F.3d 85, 87 (7th Cir.1993). We have
previously applied this maxim in our review of trial court cases. Gahanna v. Cameron,
10th Dist. No. 02AP-255, 2002-Ohio-6959, ¶ 43.
   B. Consequences of Having Sued the State
       {¶ 12} It is unclear from Lathan's pleadings just whom he intended to sue. It
appears he intended to sue the State of Ohio, perhaps directly and through its agents and
employees. Thus, default would not have been appropriate under Civ.R. 55(D) without
Lathan having first "establish[ed] his claim or right to relief by evidence satisfactory to the
court," which Lathan showed no attempt to do. Civ.R. 55(D).
       {¶ 13} Moreover, Lathan sued in the Franklin County Court of Common Pleas
rather than the Court of Claims of Ohio (which has exclusive and original jurisdiction over
claims against the State of Ohio). R.C. 2743.03(A)(1); R.C. 2743.02(F); R.C. 9.86. Thus, it
is not even clear that Lathan sued in the correct court or followed the necessary
procedures to avoid his claim(s) being thwarted by the operation of sovereign immunity.
   C. Consequences of Suing Based on Prison Conditions as a Prisoner
       {¶ 14} Ohio Revised Code 2969.25 and 2969.26 provide certain requirements that
an inmate commencing a civil action must observe. For example, an inmate must "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. 2969.25(A). While compliance with this requirement is not necessary if no
such litigation has been filed, Lathan has prior involvement in the courts. See, e.g.,
Lathan v. Dept. of Rehab. & Corr., 10th Dist. No. 11AP-710, 2012-Ohio-1220, ¶ 3
(discussing action filed by Lathan against a corrections officer in May 2011); see also State
ex rel. Wickensimer v. Bartleson, 123 Ohio St.3d 154, 2009-Ohio-4695. Non-compliance
with R.C. 2969.25 and 2969.26 may serve as a ground for dismissal. State ex rel.
Thompkins v. Cocroft, 10th Dist. No. 12AP-700 (Dec. 28, 2012); Brown v. Ohio Adult
Parole Auth., 10th Dist. No. 09AP-797, 2010-Ohio-872, ¶ 9-11. Though Lathan filed an
exhibit referencing R.C. 2969.25, no R.C. 2969.25 affidavit accompanied the complaint.
       {¶ 15} In addition, to the extent references to the Eighth Amendment in Lathan's
complaint may purport to represent a federal claim, Lathan would have been required to
meet the requirements of the Prison Litigation Reform Act ("PLRA") for such a claim if it
existed to move forward. See 42 U.S.C. 1997e (a, e).
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No. 16AP-54
        {¶ 16} Lathan has made no attempt to comply with PLRA and has failed to comply
with R.C. 2969.25 and 2969.26.
    D. The Propriety of Dismissing Lathan's Suit in Rhyme
        {¶ 17} The trial court's reliance on de minimis non curat lex was appropriate. The
complaint's lack of substance left it little choice but to apply the maxim. Further, neither
case law nor rules prevent a court from delivering its decision in rhyme, especially when it
occurs with the unconventional precision of the trial court's decision.3
        {¶ 18} We find no error in the trial court's delivering its decision in poetic format.
IV. CONCLUSION
        {¶ 19} We, therefore, and for the reasons expressed herein, overrule all of Lathan's
ten assignments of error and affirm the judgment of the Franklin County Court of
Common Pleas.
                                                                                 Judgment affirmed.
                                BROWN and KLATT, JJ., concur.




3Examples of poetry in case law are numerous. See, e.g., United States v. Batson, 782 F.2d 1307, 1309 (5th
Cir.1989); Joe Hand Promotions v. Sports Page Cafe, 940 F.Supp. 102, 102-05 (D.N.J.1996); In re Love, 61
B.R. 558, 558-59 (S.D.Fl.1986); United States v. One 1976 Ford F-150 Pick-Up, 599 F.Supp. 818, 818-19
(E.D.Mo.1984); Irvin v. Smith, 71 Ohio Misc.2d 18, 19-22 (C.P.1993); Fisher v. Lowe, 122 Mich.App.418, 419
(Mich.1983).
