Harris v. Smith et al

Filing 44

Memorandum and Order. Defendant's Motion to Dismiss 30 is granted and all of Plaintiff's claims are dismissed. Signed by Magistrate Judge Kenneth S. McHargh on 6/10/11. (R,N)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DWAYNE HARRIS,
Plaintiff,
v.
KEITH SMITH,
Defendant.

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Case No. 1:10CV1313

MEMORANDUM
AND ORDER
Magistrate Judge McHargh

The parties have consented to the jurisdiction of this Magistrate Judge.
Presently before the Court is Defendant Keith Smith’s Motion to Dismiss Plaintiff
Dwayne Harris’ Complaint. (Doc. 17). Plaintiff filed his Response in Opposition to
Defendant’s Motion on April 29, 2011. (Doc. 34). Defendant timely filed its Reply on
May, 2, 2011. (Doc. 35). Plaintiff then filed an Amended Opposition to Defendant’s
Motion on May 4, 2011. (Doc. 36). Based upon the parties’ filings and the applicable
law, Defendant’s Motion is hereby GRANTED.
I. FACTUAL & PROCEDURAL BACKGROUND
On June 15, 2010 pro se Plaintiff Dwayne Harris brought this action pursuant
to 42 U.S.C. §1983 against Mansfield Correctional Institution (“MANCI”), Warden
Keith Smith, Ohio Department of Rehabilitation and Correction (“ODRC”) Director
Ernie Moore, Ohio Adult Parole Authority (“OAPA”) Deputy Director Harry E.
Hageman, and OAPA Chief Cynthia Mausser. Mr. Harris alleges Ohio prisons,

including MANCI, are overcrowded and unsanitary due to lengthy sentences being
served by inmates convicted prior to the enactment of Ohio Senate Bill 2 (“S.B. 2"). He
has requested a jury trial and seeks declaratory, injunctive, and monetary relief.
Specifically, Mr. Harris states that inmates at MANCI are forced to sleep on
mattresses that are in “bad condition.” (Compl. at 5). He alleges that showers must
be shared by approximately 120 inmates and leak sewage from the shower vents.
Moreover, he contends that the showers are covered with black mold and the water
temperature of the showers fluctuates between scalding and extremely cold. He
indicates that on holidays and weekends inmates are only served brunch, rather than
breakfast and lunch, resulting in the elimination of one meal. Furthermore, Mr.
Harris alleges that there is a heightened level of tension and violence among inmates
which has led to increased accounts of gang related and staff member assaults on
inmates. He complains that inmates have been denied rehabilitation programs.
Additionally, he contends that there is no ventilation in the multipurpose rooms which
are shared by approximately 120 inmates.
Mr. Harris states that the overcrowding of Ohio prisons is a result of the OAPA
decision to deny parole to inmates serving indefinite sentences. (Compl. at 5). He
suggests that the amount of time served by inmates sentenced prior to the enactment
of S.B. 2 is disproportionate to the amount of time served by those receiving sentences
of definite terms for the same crimes post-enactment. Id. Thus, he claims, Defendants
violated his Eighth Amendment rights. Id.

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However, on August 10, 2010, District Court Judge Aaron Polster dismissed
Plaintiff’s claims pertaining to the length of his sentence or incarceration pursuant to
28 U.S.C. §1915(e). (Doc. 5). Additionally, Judge Polster dismissed Plaintiff’s Eighth
Amendment claims against ODRC Director Ernie Moore, OAPA Deputy Director Harry
Hageman, and OAPA Chief Cynthia Mausser finding that no facts in the pleading
reasonably associated these parties with any of the claims set forth by the Plaintiff.
The Court then left the case to proceed “solely on Plaintiff’s Eighth Amendment claim
against MANCI Warden Keith Smith concerning the conditions of confinement.” (Doc.
5).
II. Defendant’s Motion to Dismiss
Defendant filed its Motion to Dismiss on April 8, 2011. (Doc. 30). Defendant has
indicated that Plaintiff’s complaint should be dismissed for failure to exhaust
administrative remedies.

In so arguing, Defendant relies heavily upon the

documentation attached to Plaintiff’s Complaint. However, Defendant has made no
effort in its Motion to Dismiss to indicate what basis for dismissal applies to Plaintiff’s
claim. The Sixth Circuit has held that failure to exhaust administrative remedies is
“not a jurisdictional bar, but rather [exhaustion is] a condition precedent to an action
in federal court.” McKnight v. Gates, 282 Fed. App’x 394, 397 n. 2 (6th Cir. 2008)
(citing Zipes v. Trans World Airlines, 455 U.S. 385, 395-98 (1982)). Therefore, if a Rule
12(b) motion was proper in this instance, Defendant’s failure to exhaust argument
would be considered under Rule 12(b)(6). See McKnight, 282 Fed. App’x at 397 n. 2
(6th Cir. 2008).
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However, a Rule 12(b)(6) motion is not proper. In the instant case, Defendant
filed an answer before it filed its motion to dismiss. Indeed, the motion to dismiss was
filed six months after the filing of the answer. A motion to dismiss filed under Rule
12(b)(6), subsequent to the filing of an answer, cannot “properly lie because Rule 12(b)
requires that ‘[a] motion making any of these defenses shall be made before pleading.’”

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quoting
FED.R.CIV.P. 12(b)). However, Rule 12(h)(2) of the Federal Rules of Civil Procedure
provides that a Rule 12(b)(6) defense may be raised by a motion for judgment on the
pleadings pursuant to Rule 12(c). Accordingly, courts will generally construe a postanswer Rule 12(b)(6) motion to dismiss as a Rule 12(c) motion for judgment on the
pleadings. See Clarke v. Howard, No. 405CV1977, 2006 WL 3700238 (N.D. Ohio Dec.
8, 2006). See also Scheid, 859 F.2d at 436 (“[A Rule 12(b)(6)] motion may be properly
considered as one for judgment on the pleadings under Fed.R.Civ.P. 12(c), and
evaluated, nonetheless, under the standards for dismissal under Rule 12(b)(6).”).
Therefore, the Court will consider the instant Rule 12(b)(6) motion as one for judgment
on the pleadings and evaluate it pursuant to the standard for dismissal under Rule
12(b)(6). Id.
In determining whether a plaintiff has stated a claim upon which relief can be
granted, the court must construe the complaint in the light most favorable to the
Plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553-56 (2007). If an allegation in
the complaint is capable of more than one inference, the court must construe it in the
plaintiff’s favor. Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th
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Cir. 1995). Furthermore, the court must determine whether the complaint contains
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570. However, a plaintiff’s obligation to provide the grounds for relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. at 555. Although a plaintiff’s complaint need not contain
“detailed” factual allegation, its “[f]actual allegations must be enough to raise a right
to relief above the speculative level on the assumption that all the allegations in the
complaint are true.” Id. A court is “not bound to accept as true a legal conclusion
couched as a factual allegation.”

Papason v. Allain, 478 U.S. 265, 286 (1986).

Moreover, pro se pleadings are, generally, liberally construed. Boag v. MacDougall,
454 U.S. 364, 365 (1982) (per curiam).
The Sixth Circuit has held that a court may consider exhibits attached to the
complaint, in addition to the allegations in the complaint itself, without converting the
motion to dismiss to a motion for summary judgment. FED.R.CIV.P. 10(c); Weiner v.

Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997).
III. ANALYSIS
Defendant has moved to dismiss Plaintiff’s Complaint for failure to exhaust
administrative remedies before filing the instant suit as required by the Prison
Litigation Reform Act of 1995 (PLRA). 42 U.S.C. §1997(e)(a) (2011). Although Plaintiff
properly described the grievance process which he completed prior to filing his
complaint, his grievances are insufficient for his complaint to proceed against the
warden. “Proper exhaustion demands compliance with an agency’s deadlines and other
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critical procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.” Woodford

v. Ngo, 548 U.S. 81, 90-91 (2006). Moreover, these procedural rules are determined by
“the prison’s requirements, and not the PLRA...” Jones v. Bock, 549 U.S. 199, 218
(2007).
Ohio’s Administrative Code lays out the inmate grievance procedure. See Ohio
Admin. Code 5120-9-31 (2011). Relevant to the instant case is Section M of Ohio
Administrative Code 5120-9-31 which states:
[g]rievances against the warden or inspector of institutional services
must be filed directly to the office of the chief inspector within thirty
calendar days of the event giving rise to the complaint. Such grievances
must show that the warden or inspector of institutional services was
personally or knowingly involved in a violation of law, rule or policy, or
personally and knowingly approved or condoned such a violation.

Id. (emphasis added). Accordingly, Plaintiff was required to file his grievance against
the warden with the office of the chief inspector within thirty calendar days and was
required to show in his grievance that the “the warden or inspector of institutional
services was personally or knowingly involved in a violation of law, rule or policy, or
personally and knowingly approved or condoned such a violation.” Id.
Plaintiff has attached all of his grievances to his Complaint. (Compl. at 10-13).
A review of these grievances reveals Plaintiff mentions the warden’s name in
introducing the claim, but fails to provide any facts or details as to how the Warden
was “personally or knowingly involved in a violation of law, rule or policy, or personally
and knowingly approved or condoned such a violation.” Ohio Admin. Code 5120-9-31
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(2011). Moreover, Plaintiff fails to connect the warden to the allegations of unsanitary
prison conditions. There is simply nothing in Plaintiff’s grievances which might
constitute the showing required by Ohio Administrative Code 5120-9-31. See Morgan

v. Beightler, No. 109CV2190, 2011 WL 2111082 (N.D. Ohio May 26, 2011) (dismissing
pro se plaintiff’s complaint where the plaintiff’s grievances neither showed how the
warden was personally or knowingly involved in the alleged act, nor how she
personally approved or condoned such acts); Tate v. Williams, No. 206CV47, 2007 WL
781657 (S.D. Ohio Mar. 12, 2007) (dismissing claim in part because plaintiff failed to
identify the warden and how he was “personally knowingly involved in a violation of
law, rule or policy, or personally and knowingly approved or condoned such a
violation”). Additionally, Plaintiff’s first of the two grievances was filed with the
inspector of institutional services at MANCI rather than the office of the chief
inspector contrary to the requirement of Section M of Ohio Administrative Code 51209-31. Plaintiff’s failure to comply with the inmate grievance procedures constitutes a
failure to properly exhaust his remedies as required by the PLRA.
Plaintiff argues that Judge Polster, in screening the Complaint, already
determined that “Harris [exhausted] his administrative remedies before the filing of
his complaint against Warden Smith.” (Doc. 34). However, a review of Judge Polster’s
screening shows that Plaintiff’s argument is misguided. During the screening process,
the Court did not address exhaustion. See generally (Doc. 5). Moreover, the Sixth
Circuit has stated that claims that survive the initial screening under 28 U.S.C. §
1915A may be the proper subject of a later motion to dismiss under Fed.R.Civ.P.
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12(b)(6). See Dickerson v. Parnell, 101 Fed. App’x. 587, 588 (6th Cir. 2004); Naturalite

v. Hood, 98 Fed. App’x. 401, 402 (6th Cir. 2004); Harrington v. Painter, 92 Fed. App’x.
126, 128 (6th Cir. 2003). Thus, this Court may address exhaustion presently.
Additionally, Plaintiff contends that his complaint should not be dismissed for
failure to exhaust his administrative remedies because he filed grievances against the
warden to both the institutional inspector and to the office of the chief inspector. (Doc.
34). However, Defendant does not argue that Plaintiff did not file a grievance against
the warden with the office of the chief inspector. Instead, Defendant contends that
Plaintiff failed to show that the Warden was “personally or knowingly involved in a
violation of law, rule or policy, or personally and knowingly approved or condoned such
a violation,” and therefore failed to exhaust his administrative remedies. Ohio Admin.
Code 5120-9-31 (2011). Since Plaintiff’s argument is erroneous, the Court’s analysis
remains unchanged.
It is well established in the Sixth Circuit that a plaintiff’s complaint must be
dismissed where he files his “federal complaint before allowing the administrative
process to be completed.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Moreover, it is clear from the face of the Complaint that Plaintiff failed to exhaust his
administrative remedies. Cf. Jones, 549 U.S 199 (2007) (acknowledging that a claim
may be dismissed under FED.R.CIV.P. 12(b)(6) if an affirmative defense appears on the
face of the complaint). Therefore, Plaintiff’s Complaint must be dismissed for failure
to exhaust his administrative remedies.

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IV. CONCLUSION
For the reasons stated herein, Defendant’s Motion to Dismiss is GRANTED.
Furthermore, all of Plaintiff’s claims are hereby dismissed.

IT IS SO ORDERED.

June 10, 2011

/s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge

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