Troche v. Morgan

Filing 44

ORDER that plaintiff's 38 response to the 8/21/2013 32 order to show cause is well-taken and the Court finds that Leaman does not require dismissal of plaintiff's federal claims. Consequently, defendant's 43 Motion to Stay the Court's calendar order is Denied as moot. Signed by Magistrate Judge Karen L. Litkovitz on 5/28/2014. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

SHANNON EARL TROCHE,
Plaintiff,
vs.
MICHAEL CRABTREE,
Defendant.

CaseNo. 1:12-cv-176
Speigel, J.
Litkovitz, M.J.
ORDER

This matter is before the Court on plaintiff's response to the show cause order (Doc. 38)
and defendant's memorandum in opposition to plaintiff's response (Doc. 40). Also pending
before the Court is defendant's motion to stay the Court's calendar order (Doc. 42) pending
resolution of the show cause order (Doc. 43).
I. Background

Plaintiff, an inmate at the Ohio State Penitentiary, filed this prisoner civil rights action
under 42 U.S.C. § 1983 alleging violations ofhis constitutional rights by defendant Correctional
Officer Michael Crabtree while plaintiff was an inmate at the Southern Ohio Correctional
Facility (SOCF). (Doc. 23). 1 Plaintiff also raises Ohio state law tort claims of assault and
battery against defendant. (!d.).
On May 10, 2012, after instituting this federal proceeding, plaintiff filed an action in the
Ohio Court of Claims arising out of the same incident giving rise to this federal action. See
Troche v. Dep't of Rehab. & Corr., Case No. 2012-03875 (Ohio Court of Claims).

Upon

learning of plaintiff's pending Court of Claims action, this Court ordered plaintiff to show cause
why this case should not be dismissed pursuant to Leaman v. Ohio Dept. ofMental Retardation
& Dev. Disabilities, 825 F.2d 946 (6th Cir. 1987) (en bane), which holds that under Ohio Rev.

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Plaintiff initiated this action on a pro se basis but is currently represented by counsel pursuant to the
District Court's appointment of an attorney. See Doc. 14.

Code§ 2743.02(A)(l), filing a lawsuit in the Ohio Court of Claims results in a "complete
waiver" of any federal cause of action arising out ofthe same act or omission. (Doc. 32).
Plaintiffhas filed a response to the show cause order (Doc. 38) and defendant has filed a
memorandum in opposition to plaintiff's response (Doc. 40).
II. Plaintiff's complaint should not be dismissed pursuant to Leaman.

Plaintiff asserts that his federal claims against defendant should not be dismissed
pursuant to Leaman because he was not represented by counsel at the time he initiated the action
in the Ohio Court of Claims and, thus, did not make "a knowing, intelligent, and voluntary
waiver" of his right to bring federal claims against defendant. (Doc. 38 at 3) (quoting Leaman,
825 F.2d at 956). In Leaman, the plaintiff made a knowing and voluntary waiver ofher federal
cause of action because she was represented by counsel at the time the Court of Claims action
was filed. See Leaman, 825 F.2d at 956 ("The finding that the waiver was 'knowing, intelligent,
and voluntary' presumably rests upon the fact that Ms. Leaman was represented by competent
counsel when she filed her action in the Court of Claims, and counsel must be presumed to have
known what the Court of Claims Act said. Under the circumstances of this case, we consider
this an adequate foundation for the finding ofvoluntariness."). Here, in contrast, plaintiff was
not represented by counsel at the time he filed his Court of Claims action. See Doc. 38, Ex. A
(plaintiff's Court of Claims Complaint was filed prose on May 10, 2012) 2 ; Doc. 14 (plaintiff
was not appointed counsel until May 29, 2012). Plaintiff asserts that as a pro se litigant, he was
unaware ofthe consequences offi1ing an action in the Ohio Court ofC1aims and, thus, he did not
make a knowing, intelligent, and voluntary waiver of his federal claims. In support, plaintiff

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The Court may take judicial notice of publicly available court records. See Lynch v. Leis, 382 F.3d 642,
648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)). The online docket records
maintained by the Ohio Court of Claims, which pertain to plaintiffs state action, can be found at:
http://cases.ohiocourtofclaims.gov/cgi-bin/wspd_cgi.shlws_civilcasesearch_2007.r?mode=5&Case No=2 01203875.

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cites to Kaifasz v. Haviland, 55 F. App'x 719, 722 (6th Cir. 2003) and Smith v. Duncan, No. 963233, 1996 WL 583413, at *1 (6th Cir. Oct. 9, 1996), where the Sixth Circuit clarified its
holding in Leaman and determined that in cases where plaintiffs were not represented by
counsel, there was no presumption that the act of filing a Court of Claims action established a
knowing, intelligent, and voluntary waiver of the right to proceed with federal claims. Plaintiff
requests that the Court take into consideration his pro se status at the time his Court of Claims
action was filed and find that his claims against defendant are not subject to dismissal under

Leaman.
Defendant concedes that plaintiffs prose status at the time of filing the Court of Claims
matter removes Leaman's presumption of a voluntary waiver. However, defendant asserts that
this Court may nevertheless find that plaintiff has waived his right to pursue this matter by
looking to plaintiffs filings in the Court of Claims action. (Doc. 40 at 4-5). In support,
defendant cites to two Southern District of Ohio cases where pro se plaintiffs were found to have
made knowing, intelligent, and voluntary waivers pursuant to Leaman based on their prior
experience as a prose litigants, the coherence of their filings, and references to Ohio Rev. Code
§ 2743.01(A)(1) in their court filings. (!d. at 4) (citing Williams v. Smith, No. 2:05-cv-845, 2006
WL 2192470, at *10-11 (S.D. Ohio Aug. 1, 2006) and Brown v. Mason, No. 2:10-cv-783, 2012
WL 2892036 (S.D. Ohio July 16, 2012)). Defendant asks that this Court similarly take into
account the content of plaintiffs court filings. Specifically, defendant notes plaintiffs reference
to Ohio Rev. Code§ 2743.02 in his Ohio Court ofC1aims Complaint (Doc. 40, Ex. A at 1) and
plaintiffs defeat of defendant's motion for summary judgment in the Court of Claims.
Defendant argues that despite plaintiffs prose status at the time of filing, his coherent court
filings and reference to § 2743.02 establish that plaintiff voluntarily, intelligently, and knowingly

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waived his right to pursue his federal claims against defendant when he filed his Court of Claims
action. (Doc. 40 at 5-6). Lastly, defendant notes that the timing of plaintiff's Court of Claims
filing indicates his intent to abandon this lawsuit. (Doc. 40 at 5). Defendant points out that
rather than respond to Warden Morgan's April 9, 2012 motion for judgment on the pleadings,
plaintiff filed the Ohio Court of Claims action on May 10, 2012. Defendant also notes that on
June 7, 2012, plaintiff completed a form for the Ohio Court of Claims wherein he represented
that there was no pending court cases connected to his Court of Claims matter. See Doc. 40, Ex.
B at 2. Defendant asserts that these actions demonstrate that plaintiff elected to proceed in the
Court of Claims, effectively abandoned the instant lawsuit, and knowingly, intelligently, and
voluntarily waived his right to proceed in federal court. Defendant therefore requests that the
Court find that plaintiff's federal claims are barred by Leaman and dismiss this lawsuit in its
entirety.
Ohio Revised Code§ 2743.02(A)(1) provides, in relevant part:
The state hereby waives its immunity from liability ... and consents to be sued,
and have its liability determined, in the court of claims created in this chapter in
accordance with the same rules of law applicable to suits between private parties,
except that the determination of liability is subject to the limitations set forth in
this chapter....
Except in the case of a civil action filed by the state, filing a civil action in the
court of claims results in a complete waiver of any cause of action, based on the
same act or omission, that the filing party has against any officer or employee, as
defined in section 109.36 of the Revised Code. The waiver shall be void if the
court determines that the act or omission was manifestly outside the scope of the
officer's or employee's office or employment or that the officer or employee
acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
The Sixth Circuit has held that a plaintiffwho files suit in the Ohio Court of Claims waives his
right to file a federal cause of action based on the same acts under§ 2743.02(A)(1). Leaman,
825 F.2d at 951-52. See also Thomson v. Harmony, 65 F.3d 1314, 1318 (6th Cir. 1995) (citing

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Leaman, 825 F.2d at 954-55) ("Thus, our circuit interpreted the Court of Claims Act as
establishing a quid pro quo, in which the state consents to be sued in exchange for a plaintiffs
waiver of claims against the state's employee."). The Sixth Circuit reiterated this interpretation
in Turker v. Ohio Dep 't of Rehab. and Corrections, 157 F.3d 453 (6th Cir. 1998), finding that

"Leaman and Thomson, provide that where a federal court plaintiff files a related action in the
Court of Claims, she has waived her right to sue the state official for monetary damages in
federal court." Id. at 459. However, inKajfasz, 55 F. App'x 719, the Sixth Circuit clarified that
the plaintiffs in Leaman and Turker were presumed to have made knowing, intelligent, and
voluntary waivers of their right to proceed in federal court because they were represented by
competent counsel. !d. at 721-22. Where a plaintiff is proceeding pro se, such as in the instant
case, the court must make a factual finding as to whether the plaintiff "knowingly, intelligently,
and voluntarily waived his right to proceed in federal court by filing in the Ohio Court of Claims .

. . ." Id. at 722. In making this finding, the Court may look to the prose plaintiffs prior
litigation experience, the coherency ofhis filings in both the federal and Court of Claims matters,
and whether the litigant referenced the statutory waiver provision in the filings.

See Brown,

2012 WL 2892036, at *2; Easley v. Bauer, No. 1:07-cv-37, 2008 WL 618642, at *1 (S.D. Ohio
Feb. 29, 2008). The Court has considered these factors and finds that plaintiff did not
knowingly, intelligently, and voluntarily waive his right to bring his federal claim against
defendant by filing an action in the Ohio Court of Claims.
A review of the Court's electronic case management system reveals that plaintiff does not
have prior experience as a pro se litigant. Plaintiffs lack of experience in pro se litigation
supports a finding that he was not aware that he would forfeit the instant lawsuit by filing his
Court of Claims action. Cf. Easley, 2008 WL 618642, at *1 (finding that the prose plaintiff who

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had filed up to ten other pro se actions was an experienced litigant and waived his federal right of
action by filing an Ohio Court of Claims matter); Williams, 2006 WL 2192470, at *10 (waiver
found where prose plaintiffhad represented himself in three prior lawsuits).
The Court has also reviewed plaintiffs prose pleadings in this matter and in the Ohio
Court of Claims matter and finds that they do not establish that plaintiffhas "an above-average
understanding of the law for a pro se litigant" such that his filing of the state matter can be
deemed a knowing, intelligent, and voluntary waiver of his right to proceed with his federal
claims. Williams, 2006 WL 2192470, at *10. Plaintiffs initial complaint, drafted prior to the
appointment of counsel, is similar to many other pro se complaints filed by prisoner litigants.
The pleading is hand-written, contains multiple spelling errors, and minimal factual allegations.
See Doc. 3 at 5-6. Plaintiffs other prose filings in this matter contain similar flaws. See, e.g.,
Doc. 4 (containing spelling and grammatical errors); Doc. 6 (wherein plaintiff improperly refers
to himself as "Relator" and evinces his lack of knowledge of legal terms). Review of plaintiffs
Ohio Court of Claims filings likewise reflect that plaintiff has no more than an average
understanding of the law. To the extent defendant asserts that plaintiffs success in defeating
defendant's state court motion for summary judgment establishes plaintiffs "legal skill" (Doc.
40 at 6), the Court disagrees. The Ohio Court of Claims denied defendant's motion for summary
judgment simply because defendant and plaintiff presented contradictory affidavit testimony and
not because of any legal argument made by plaintiff. See Doc. 40, Ex. Eat 4 (August 27, 2012
Ohio Court of Claims Opinion denying defendant's motion for summary judgment).
Lastly, plaintiffs brief reference to Ohio Rev. Code§ 2743.02 does not demonstrate that
he was aware of the significance of this statute to his federal lawsuit. In his Ohio Court of
Claims complaint, under the heading "I. Jurisdiction," plaintiff wrote: "[t]his Court retains

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jurisdiction to adjudicate claims against state agencies and instrumentalities pursuant to R.C.
2743.02." (Doc. 38, Ex. A). Plaintiff does not reference the portion of the statute which
explains that filing a claim in the Court of Claims acts as a waiver of his right to proceed in
federal Court. The undersigned finds that plaintiff's brief reference to the Ohio Court of Claims
Act to establish that court's jurisdiction does not demonstrate that plaintiff was aware of the
immunity language in §2743.02(A) such that he should be found to have waived his right to
pursue his federal lawsuit. Cf. Brown, 2012 WL 2892036, at *2 (finding prose plaintiff made a
knowing, intelligent, and voluntary waiver where he verbatim quoted the immunity language
from§ 2743.02(A) in his Court of Claims complaint).
In consideration of the above, the Court finds that plaintiff did not make a knowing,
intelligent, and voluntary waiver of his right to proceed with the instant lawsuit when he filed his
Ohio Court of Claims action.

III. Conclusion
For the reasons stated above, plaintiff's response to the August 21, 2013 order to show
cause (Doc. 38) is well-taken and the Court finds that Leaman does not require dismissal of
plaintiff's federal claims. Consequently, defendant's motion to stay the Court's calendar order
(Doc. 43) is DENIED as moot.
IT IS SO ORDERED.

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Karen L. Litkovitz ~
United States Magistrate Judge

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