[Cite as Evans v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-1345.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


William H. Evans, Jr.,                                :

                Plaintiff-Appellant,                  :
                                                                         No. 19AP-478
v.                                                    :            (Ct. of Cl. No. 2019-00451JD)

Ohio Department of Rehabilitation and                 :            (REGULAR CALENDAR)
Correction,
                                                      :
                Defendant-Appellee.



                                           D E C I S I O N

                                      Rendered on April 7, 2020


                On brief: William H. Evans, Jr., pro se.

                On brief: Dave Yost, Attorney General, and Timothy M.
                Miller, for appellee.

                            APPEAL from the Court of Claims of Ohio
BEATTY BLUNT, J.
        {¶ 1} Plaintiff-appellant, William H. Evans, Jr., appeals from an entry of the Court
of Claims of Ohio granting the motion to dismiss of defendant-appellee, Ohio Department
of Rehabilitation and Correction ("ODRC"). For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} The facts of the instant matter are not in dispute. Evans is an inmate in the
custody and control of ODRC at the Northeast Ohio Correctional Center. On April 3, 2019,
Evans filed a complaint in the Court of Claims in which he asserted a claim for violation of
42 U.S.C. 12101 et seq., otherwise known as the Americans with Disabilities Act ("ADA").
The complaint alleges Evans has a mental impairment in the form of "Bi-Polar Affective
Disorder I" and ODRC should accommodate this disability by designating his status as
No. 19AP-478                                                                                2

"cell-alone" and assigning him to a single-person cell. (Compl. at ¶ 1.) In alleging he has
"Bi-Polar Affective Disorder I," Evans references a mental health treatment plan attached
to the complaint. Evans alleges the treatment plan, coupled with the fact he has been
receiving Social Security Disability payments for several years, are conclusive evidence he
has a disability as recognized under the ADA. (Compl. At ¶ 1.) Evans also alleges "he is
treated differently than other inmates with a 'qualified disability,' such as inmates in a
wheelchair, or those deemed dangerous due to mental illness" because they all "can be
accorded a 'cell-alone' status." (Compl. at ¶ 2.)
       {¶ 3} Evans further alleges "he is being excluded or denied benefits of [activities],
being 'major life activities.' " (Compl. at ¶ 3.) He explains that "[b]y giving Evans a cell-
mate, it causes Evans to be denied his adequate sleep, being able to concentrate and read
and think." (Compl. At ¶ 3.) Therefore, Evans alleges, ODRC has failed to reasonably
accommodate his disability.
       {¶ 4} Evans seeks a declaratory judgment stating ODRC must accommodate his
request to be designated as a "cell-alone" inmate, an injunction requiring the "cell-alone"
designation be continued, and damages in excess of $25,000 as compensation for his claim.
(Compl. at ¶ 4.)
       {¶ 5} ODRC responded to Evans' complaint with a May 2, 2019 motion to dismiss,
arguing the Court of Claims should dismiss the complaint in its entirety pursuant to Civ.R.
12(B)(6). Evans filed a memorandum contra ODRC's motion to dismiss on May 10, 2019.
       {¶ 6} In a July 11, 2019 entry, the Court of Claims granted ODRC's motion to
dismiss based on Evans' failure to plead all the essential elements required to establish a
violation of the ADA. More specifically, the court found Evans' complaint failed to allege
ODRC denied him a reasonable accommodation and he had requested such an
accommodation. The Court of Claims further found Evans' complaint failed to allege ODRC
discriminated against him because of his disability or that he was denied the opportunity
to participate in or benefit from ODRC's services, programs, or activities, which are
requisite elements to state a claim for violation of Title II of the ADA. Thus, the court
dismissed Evans' complaint in its entirety for failure to state a claim for relief pursuant to
Civ.R. 12(B)(6). Evans timely appeals.
No. 19AP-478                                                                                 3

II. Assignments of Error
        {¶ 7} Evans assigns two errors for our review:
              [1.] Trial court errs in holding Evans failed to request accommodation
              under ADA.

              [2.] Trial court errs in holding that Evans failed to allege that
              he was discriminated against.

III. Discussion and Legal Analysis
    A. Standard of Review
        {¶ 8} When reviewing a decision on a Civ.R. 12(B)(6) motion to dismiss for failure
to state a claim upon which relief can be granted, this court's standard of review is de novo.
Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9. A
Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the complaint. O'Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). In ruling on a motion to
dismiss pursuant to Civ.R. 12(B)(6), the court must construe the complaint in the light most
favorable to the plaintiff, presume all factual allegations in the complaint are true, and make
all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192 (1988). Unsupported conclusions of a complaint, however, are insufficient
to withstand a motion to dismiss. Id. at 193. The dismissal of a complaint for failure to
state a claim is proper when it appears, beyond doubt, the plaintiff can prove no set of facts
entitling him to relief. O'Brien at 245. Finally, although the trial court may not rely on
evidence outside the complaint, it may take into consideration both the complaint and any
attachments to it. Smith v. Estate of Knight, 10th Dist. No. 18AP-534, 2019-Ohio-560, ¶ 7;
Beard v. New York Life Ins. & Annuity Corp., 10th Dist. No. 12AP-977, 2013-Ohio-3700,
¶ 11.
    B. Title II of the ADA—42 U.S.C. 12132 et seq.
        {¶ 9} Title II of the ADA applies to state prisons and prisoners, and thus, prisons
cannot use an inmate's disability as a reason to bar that inmate from participating in or
receiving the benefits of recreation, medical services, educational programs, or vocational
programs. Wolfe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-346, 2011-Ohio-
6825, ¶ 14, citing Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998).
Further, Title II requires public entities, including prisons, "to make reasonable
No. 19AP-478                                                                                 4

accommodations to enable disabled individuals to receive meaningful access to the
services, programs, or activities that the public entities offer." (Citations omitted.) Wolfe
at ¶ 15.
       {¶ 10} To prevail on a claim brought under Title II of the ADA, a plaintiff must
show: "(1) that he or she is a qualified individual with a disability; (2) the defendant is
subject to the ADA; and (3) the plaintiff was denied the opportunity to participate or
benefit from defendants' services, programs, or activities or was otherwise discriminated
against by defendants, by reason of plaintiff's disability." Wolfe at ¶ 16, citing Franks v.
Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048 (10th
Dist.); Thomson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-782, 2010-Ohio-
416. Further, in order to demonstrate discrimination based on disability, a plaintiff must
show ODRC denied him a reasonable accommodation and he requested such an
accommodation. Thomson at ¶ 26; Wolfe at ¶ 16.
    C. Appellant's Second Assignment of Error
       {¶ 11} Because we find it dispositive to resolving this appeal, we begin by
addressing appellant's second assignment of error. In his second assignment of error,
Evans asserts the Court of Claims erred in finding he failed to allege he was discriminated
against. Following our de novo review of the complaint, however, we agree with the court
that Evans failed to allege in his complaint he has been prevented from participating in a
service, program, or activity because of ODRC's failure to assign him to cell-alone status.
We further agree with the Court of Claims that Evans' failure to allege he has been
precluded from participating in a service, program or activity is dispositive of Evans' claim
for violation of Title II of the ADA. Wolfe at ¶ 16.
       {¶ 12} Evans has alleged he cannot get adequate sleep, concentrate, read, or think
when sharing a cell with another inmate. Yet, as the Court of Claims found, these
allegations are insufficient to demonstrate Evans has been denied participation in a
program or activity because sleeping, concentrating, reading, and thinking are not
programs or activities. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) (finding
that "incarceration, which requires the provision of a place to sleep, is not a 'program' or
'activity' " as contemplated by Title II of the ADA, and further that "[s]leeping in one's cell
is not a 'program' or 'activity' " under the ADA); Thomas v. Pennsylvania Dept. of Corr.,
No. 19AP-478                                                                                  5

615 F.Supp.2d 411, 427 (holding that "using the toilet, sink and shower facilities or being
able to dress oneself, are not programs or activities as contemplated by Title II of the ADA
any more than sleeping is").
       {¶ 13} In Thomas, the plaintiff was an above-the-knee amputee inmate who brought
suit against the prison where he was incarcerated for an alleged violation of Title II of the
ADA based on the prison's refusal to assign him to a handicap cell. The court, citing
favorably to Bowers v. Natl. Collegiate Athletics Assn., 475 F.3d 524, 553 (3d Cir.2007),
fn.32, found the plaintiff "has not alleged that he has been precluded from participating in
a service, program, or activity because of defendants' failure to accommodate him with a
handicap cell.      Rather, the plaintiff alleges that, by denying his request for
accommodation, i.e., a handicap cell, defendants have failed to attend to his medical needs.
Defendants' alleged failure to attend to his medical needs, however, fails to state a claim
under Title II of the ADA." Thomas at 426.
       {¶ 14} Similarly, in this case, sleeping, thinking, reading, and concentrating are not
programs or activities as contemplated by Title II of the ADA. As the Court of Claims
determined, at best Evans has alleged ODRC failed to attend to his medical needs because
of its failure to assign him to "cell-alone." Such allegations are insufficient to state a claim
for violation of Title II of the ADA. See Bryant at 249; Thomas at 427. Therefore, we find
the Court of Claims did not err in finding Evans failed to allege he was discriminated
against, and the court properly granted ODRC's motion to dismiss Evans' complaint
pursuant to Civ.R. 12(B)(6).
       {¶ 15} Accordingly, we overrule appellant's second assignment of error.
    D. Appellant's First Assignment of Error
       {¶ 16} In his first assignment of error, Evans asserts the Court of Claims erred in
finding he failed to request an accommodation under the ADA. We previously found in
addressing the second assignment of error the Court of Claims properly granted ODRC's
motion to dismiss Evans' complaint pursuant to Civ.R. 12(B)(6). Therefore, due to our
resolution of the second assignment of error, we find appellant's first assignment of error
to be moot. App.R. 12(A)(1)(c).
No. 19AP-478                                                                              6

IV. Disposition
       {¶ 17} For the foregoing reasons, the Court of Claims did not err in granting ODRC's
motion to dismiss pursuant to Civ.R. 12(B)(6). Having overruled Evans' second assignment
of error and determined his first assignment of error is moot, we affirm the judgment of the
Court of Claims of Ohio.
                                                                       Judgment affirmed.
                            KLATT and NELSON, JJ., concur.
