Opinion
Case No. 3:02CV7438
May 28, 2003
ORDER
Plaintiff pro se A.I. Floyd brings this suit against defendants Ken Perry, individually and in his official capacity as acting Sheriff of Lucas County, Ohio; James Telb, individually and in his official capacity as former Sheriff of Lucas County, Ohio; the Lucas County Sheriff's Department; the Ohio Adult Parole Authority ("OAPA"); and Margarette Ghee, individually and in her official capacity as former chairperson of the OAPA. Plaintiff asserts federal and state constitutional claims. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1367. Pending are motions by Perry, Telb, and the Lucas County Sheriff's Department ("county defendants") and the OAPA and Ghee ("state defendant") for judgment on the pleadings. For the following reasons, state defendants' motion shall be granted and county defendants' motion shall be denied.
BACKGROUND
Plaintiff is a prisoner of the State of Ohio incarcerated at the Marion Correctional Institution. On July 13, 2001, plaintiff filed a complaint in the Court of Common Pleas, Lucas County, Ohio, against Perry, Telb, the Lucas County Sheriff's Department, Ghee, and Reginald Wilkerson, the Director of the Ohio Department of Rehabilitation and Corrections. The underlying facts of plaintiff's complaint are not clear. The complaint contained one allegation:
On or about June 5, 2000 through September 14, 2000, Defendants denied Plaintiff his U.S. and Ohio Due Process rights, denied Plaintiff his U.S. and Ohio Civil and Constitutional rights, and deprive Plaintiff his liberty by unlawfully confining Plaintiff during that period.
County Defs.' Br. Ex. 1.
On February 13, 2002, the Court of Common Pleas granted state defendants' motion to dismiss and the county defendants' motion for judgment on the pleadings.
In granting the state defendants' motion to dismiss, the court found that Floyd did not "allege in his complaint sufficient facts to give notice of the nature of the action" and that Floyd did not "set forth any statement in his claim against defendants Wilkinson and Ghee to show that plaintiff is entitled to relief." Id. at Ex. 3.
In granting the county defendants' motion for judgment on the pleadings, the court found that the defendants were immune from liability with respect to their governmental functions pursuant to O.R.C. § 2744. Id.
Plaintiff did not appeal the court's order. On August 9, 2002, plaintiff filed the present lawsuit in the Lucas County Court of Common Pleas. Defendants removed the action to this court pursuant to 28 U.S.C. § 1441.
Plaintiff alleges that between June 5, 2000, and September 4, 2000, he was deprived of his "parole liberty" in violation of the U.S. and Ohio constitutions.
Plaintiff claims state defendants deprived him of his parole liberty by issuing a detainer warrant and failing to afford him any due process hearing regarding the alleged parole violation lodged against him. Plaintiff claims Ghee acted "reckless and outside the scope of her employment duty and obligation."
Complaint at 3.
Plaintiff claims county defendants deprived him of his parole liberty by detaining him at the Lucas County Jail, "failing to inform Ghee or any other APA personnel that the parole warrant detainer had been fulfilled, i.e. that Plaintiff was in fact in custody pursuant to that parole warrant detainer or otherwise in their custody," and failing to give him notice and an opportunity to be heard regarding the alleged parole violations against him. Id. at 4. Plaintiff also alleges county defendants acted "recklessly, negligently and outside the scope of their employment duty and responsibility by failing to seek or require confirmation from Defendant Ghee or other APA personnel that the APA had received notice or been informed by Perry and Telb that the parole warrant detainer lodged with them against Plaintiff had been fulfilled." Id. Plaintiff requests $25,000.00 in punitive and compensatory damages from each defendant.
STANDARD OF REVIEW
Rule 12(c) provides, "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings is determined under the same standard of review as a motion to dismiss under Rule 12(b)(6). Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987). The only different between Rule 12(c) and Rule 12(b)(6) is the timing of the motion to dismiss. A motion to dismiss under Rule 12(b)(6) requires the moving party to request judgment in a pre-answer motion or in an answer. A motion for judgment on the pleadings under Rule 12(c) may be submitted after the defendants filed an answer.
Under Rule 12(b)(6), no complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D.Ohio. 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 246 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
DISCUSSION
Because plaintiff is proceeding pro se, his pleadings are more liberally construed than those prepared by an attorney. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999).
I. State Defendants
State defendants argue that plaintiff's claim should be dismissed because 1) § 1983 liability cannot attach to any defendant solely on the basis of respondeat superior; 2) plaintiff is barred by res judicata from bringing the same claim against Ghee that was litigated in the Lucas County Court of Common Pleas; 3) plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisock, 520 U.S. 641 (1997); 4) the Ohio Court of Claims has exclusive jurisdiction over actions seeking damages against the state and its agencies; 5) Ghee is entitled to qualified immunity in her personal capacity; and 6) plaintiff's claim against the OAPA should be dismissed pursuant to the Eleventh Amendment.
A. Federal Constitutional Claims
Citing 42 U.S.C. § 1983, plaintiff claims state defendants deprived him of his parole liberty in violation of the United States Constitution. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
1. Defendant Ghee
Plaintiff argues:
[I]n her [Ghee] supervisory capacity as Chairperson she was the authority and final determinate in parole board revocation proceedings. Inherent and intrinsic to all revocation proceedings is the due process requirement of written notice. Thereby, it was in Ghee's supervisory capacity and control, and as administratively . . . and statutorily . . . required, to enforce the parole laws and supervise parole officers throughout the state to adhere to and comply with the requirement of due process as it applies to parole revocation proceedings, from start to finish.
Pl.'s Opp. Br. at 2.
According to plaintiff, Ghee's liability "is not founded solely from the doctrine of respondeat superior, but from her inadequate supervision of parole officers. . . ." Id. at 6.
The Supreme Court has clearly indicated that neither the doctrine of respondeat superior nor vicarious liability can form the basis of liability for a § 1983 claim. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); Rizzo v. Goode, 423 U.S. 362, 371 (1976).
In Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984), the Sixth Circuit explained:
[Section] 1983 liability of supervisory personnel must be based on more than the right to control employees. Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a §§ 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.
Id. at 421 (citing Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982)).
Thus, supervisory liability under § 1983 cannot attach where the allegation of liability is based on a mere failure to act. Instead, the liability must be based on active unconstitutional behavior. Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998).
Plaintiff has made no showing that Ghee directly participated in or authorized any of the actions that led to plaintiff's allegation of deprivation of parole liberty. Plaintiff has simply alleged that Ghee, as Chair of the OAPA, is generally responsible for the OAPA's operations. As argued by Ghee:
Plaintiff does not allege that Defendant Ghee was personally responsible for following up on detainer/holders with the Lucas County Sheriff's Office or Jail. Also, Plaintiff makes no allegation that Defendant Ghee was personally advised or given notice by any law enforcement authorities that Plaintiff had been arrested and incarcerated in the Lucas County Jail and on what basis he was so arrested and incarcerated. Furthermore, Plaintiff does not allege that Defendant Ghee personally supervised his parole status or that she was personally responsible for bringing parole violation charges against him and bringing him before a hearing officer on those charges.
State Defs.' Br. at 12.
Because there is no allegation that Ghee implicitly authorized, approved, or knowingly acquiesced in the alleged unconstitutional conduct, she is dismissed from any § 1983 liability. Plaintiff's argument that his allegations are not based on respondeat superior is not persuasive. See Salehpour, 159 F.3d at 206 ("The fact that Plaintiff did not couch his claim in [respondeat superior] terms does not change the substance of the allegation (these two Defendants in their official `supervisory' capacity failed to prevent the alleged constitutional violations).").
2. OAPA
The Eleventh Amendment provides immunity to a state and its agencies from suit in federal court unless the state expressly waives immunity or Congress clearly abrogates the Eleventh Amendment in legislation designed to enforce the Fourteenth Amendment. Welch v. Texas Dep't of Highways and Public Transp., 483 U.S. 468, 472-74 (1987). As Congress did not abrogate the Eleventh Amendment when enacting § 1983, neither a state, nor a state official sued in his official capacity is a "person" who is subject to suit under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66-71 (1989). Because the OAPA is a state agency, plaintiff's § 1983 claim against it is dismissed. See Massingill v. Ohio Adult Parole Auth., 2002 U.S. App. LEXIS 1861, at *3 (6th Cir. Feb. 1, 2002).
B. Ohio Constitutional Claims
Civil immunity is granted to officers and employees of the State of Ohio by virtue of the Court of Claims Act, O.R.C. § 2753. The Act waives the state's immunity from suit and creates a court of claims to have exclusive, original jurisdiction over suits permitted by the act. Specifically, the Act provides:
A civil action against an officer or employee, as defined in section 109.35 of the Revised Code, that alleges that the officer's or employee's conduct was manifestly outside the scope of the officer's or employee's employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action.
O.R.C. § 2743.02(F) (emphasis added).
Plaintiff seeks monetary damages against state defendants. Accordingly, the Ohio Court of Claims has original, exclusive jurisdiction to hear plaintiff's case. Friedman v. Johnson, 18 Ohio St.3d 97, 103 (1991).
State defendants' motion for judgment on the pleading shall be, therefore, granted.
II. County Defendants
County defendants simply argue that res judicata precludes plaintiff's claim. According to county defendants, the previous order from the Lucas County Court of Common Pleas was a final appealable order, and, therefore, plaintiff is relitigating the same claim against the same county defendants. The doctrine of res judicata broadly refers to the binding effect of a judgment in a prior case on claims and issues currently pending. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75 (1984). The doctrine prevents relitigation of matter already litigated in a prior action.
The preclusive effect of a prior state court judgment on a matter pending in federal court is determined by the law of that state. As the Supreme Court explained in Allen v. McCurry, 449 U.S. 90 (1980),
though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so. . . .
Id. at 96.
Therefore, as the Court explained in Migra, § 1983 "does not override state preclusion law and guarantee [a] petitioner a right to proceed to judgment in state court on state claims and then turn to federal court for adjudication of federal claims." 465 U.S. at 85. A state court judgment "has the same claim preclusive effect in federal court that the judgment would have in the Ohio state courts." Id. County defendants are correct in that the allegations in the prior case were substantially the same as those alleged in this case. However, in the "Judgment Entry" of the prior order, the Court of Common Pleas stated:
The court further finds that defendants Ken Perry, James Telb and the Lucas County Sheriff's Department's motion for judgment on the pleadings is well taken and it is ordered that plaintiff Archie Floyd's complaint as to defendants Ken Perry, James Telb and the Lucas County Sheriff's Department is dismissed without prejudice at plaintiff's cost.
County Defs.' Br. at Ex. 3, p. 6 (emphasis added).
Under the Ohio Rules of Civil Procedure, a dismissal "operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies." Civ.R. 41(B)(3).
Thus, the issue is whether Ohio courts would give preclusive effect to a proceeding dismissed "without prejudice."
In Chadwick v. Lou, 69 Ohio St.2d 222 (1982), the Supreme Court of Ohio explained that "an action dismissed `with prejudice' is vulnerable to the defense of res judicata." Id. at 226. A dismissal "`without prejudice' is one `otherwise than upon the merits.'" Id. (stating that in defining the phrase "without prejudice," Black's Law Dictionary (5 Ed.) states that when included in an order the words "show that the judicial act is not intended to be res judicata of the merits of the controversy.").
In DeVille Photography, Inc. v. Bowers, Tax Commr., 169 Ohio St. 267 (1959), the Supreme Court of Ohio stated:
A dismissal without prejudice leaves the parties as if no action had been brought at all. It gives to the complaining party the right to state a new case, if he can. . . . . `Where an action or proceeding is dismissed without prejudice, rulings preceding the final judgment or decree of dismissal are, as a general proposition, not capable of becoming res judicata.'
Id. at 446-47 (citing 149 A.L.R., 561).
County defendants argue that the contention that the prior action was dismissed without prejudice is "contrary to the court's order dated . . . and stamped `final appealable order.'" Reply Br. at 5. County defendants further argue a "careful review" of the court's order demonstrates that it was reviewed on the merits. Sur-Reply Br. at 3.
Doubt as to the meaning and effect of the words "without prejudice" in a judgment may arise where the court, although dismissing an action "without prejudice," makes findings or otherwise expresses an opinion as to the merits of the case. See e.g., 46 Am. Jur.2d Judgements § 613 (2001) ("The doubt stemming from this inconsistency is generally resolved in favor of the view that the words "without prejudice" show that ultimately the court did not determine the merits of the controversy, the emphasis being laid on the use of the words "without prejudice," rather than on the facts that there are findings or conclusions on the merits.").
Because the Court of Common Pleas dismissed plaintiff's previous case "without prejudice," I assume the court intended the judgment would not bind further action by the plaintiff. County defendants' res judicata argument, therefore, fails.
CONCLUSION
It is, therefore,
Ordered that
1. State defendants' motion for judgment on the pleadings be, and hereby is, granted. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
2. County defendants motion for judgment on the pleadings is denied. County defendants are granted leave to move for judgment on the merits. County defendants' motion shall be filed by June 6, 2003. Plaintiff's opposition shall be filed by June 30, 2003. County defendants' reply is due July 11, 2003. Discovery shall be held in abeyance pending the outcome of county defendants' motion.
So ordered.