Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987
0c647 - W16
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
BARRON BROWN,
Case No. 15CV-07-5987
Plaintiff,
Judge C. Brown
Vv.
GARY MORHR, et al.,
Defendants.
REPLY OF DEFENDANTS IN SUPPORT OF MOTION TO DISMISS
Plaintiff Barron Brown (“Plaintiff”) claims his most recently filed lawsuit revolves
around what he alleges is the breach of a private settlement agreement (“Agreement”) which
provided for the abatement of asbestos at the Chillicothe Correctional Institution. However,
nowhere in the Complaint does Plaintiff claim the asbestos was not abated. Instead, he claims
the work was performed, but that the remediation was completed without evidence of certain
approvals and permits required by statute. He then tries to parlay this alleged failure to provide
copies of approvals and permits into a claim for damages for emotional distress.
But the Agreement says nothing about providing him with copies of approvals or permits.
And while the Agreement provides “[a]ny inmate at CCI may file an action in state court to
enforce this agreement,” nowhere does the Complaint seek specific performance, much less
performance of any kind. To the contrary, the Complaint merely asks the Court to compensate
him in the amount of $7,500,000.00 for his alleged emotional distress.
Nevertheless, the Court of Claims previously considered these claims and dismissed
Plaintiff's complaint for emotional distress, finding “incarceration of plaintiff in buildings that
were discovered to contain asbestos is not extreme and outrageous conduct sufficient to sustain aFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987
0oc647 - W17
claim for intentional infliction of emotional distress.” In so doing, the Court of Claims likewise
found the facts in the complaint insufficient to support a breach of the Agreement.
A. All of Plaintiffs Claims Have Been Waived.
Ohio Rev. Code 2743.02 specifically provides that “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,
which the filing party has against any officer or employee.” Thus, Plaintiff's Court of Claims
suit filed against various state agencies waived any and all claims Plaintiff may have had against
the Defendants based upon the same acts or omissions, whether for breach of the Agreement or
for emotional distress. (Plaintiffs Affidavit of Prior Action, No. 2). Accordingly, because
Plaintiff previously filed a complaint in the Court of Claims based on the same act or omission,
the Complaint should be dismissed. Fischer v. Kent State Univ., F.3d (6th Cir. 2012) (dismissing
plaintiff's complaint where the Court of Claims action addressed similar acts and omissions
because the sequence of filing did not matter).
B. Plaintiff failed to satisfy the mandatory statutory requirements for inmates to
file civil actions.
Ohio Rev. Code 2969.25 and 2969.26 set forth a series of requirements that an inmate
must meet before commencing a civil action against a government entity or employee. R.C.
2969.25 and 2969.26 apply to civil actions that an inmate commences against the state or an
employee of the state in a court of common pleas. R.C. 2969.21(B)(1)(a). The requirements of
R.C. 2969.25 and 2969.26 are mandatory, and failure to comply with them subjects an inmate’s
action to dismissal. See State ex rel. Spencer v. Bobby, 7th Dist. Mahoning No. 12-MA-147,
2012-Ohio-5615, J 3-6; Blackford v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-373, 2011-
Ohio-3369, {| 19-30; McKinney v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-370, 2011-
Ohio-3174, JJ 11-16; see also State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262,Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987
0c647 - W18
788 N.E.2d 634, 5; State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258,
259, 719 N.E.2d 544 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422,
696 N.E.2d 594 (1998); and State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 285, 685 N.E.2d
1242 (1997). Failure to comply is not just a sufficient reason to dismiss this action, it is also
sufficient reason to deny indigency status and assess costs against Plaintiff. State ex rel.
Cvijetinovic v. Warden, Belmont Corr. Inst., 7th Dist. No. 10-BE-23, 2011-Ohio-5575, J 3.
Plaintiff failed to comply with the filing requirements of R.C. 2969.25(A) and 2969.26(A) and
therefore his Complaint should be dismissed and costs assessed to him.
a. Plaintiff failed to comply with the requirements of 2969.25(A).
Under R.C. 2969.25(A),
At the time that an inmate commences a civil action or appeal against a
government entity or employee, the inmate shall 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. The
affidavit shall include all of the following for each of those civil actions or
appeals:
(1) A brief description of the nature of the civil action or appeal;
(2) The case name, case number, and the court in which the civil
action or appeal was brought;
(3) The name of each party to the civil action or appeal; [and]
(4) The outcome of the civil action or appeal, including whether
the court dismissed the civil action or appeal as frivolous or
malicious under state or federal law or rule of court, whether the
court made an award against the inmate or the inmate’s counsel of
record for frivolous conduct under section 2323.51 of the Revised
Code, another statute, or a rule of court, and, if the court so
dismissed the action or appeal or made an award of that nature, the
date of the final order affirming the dismissal or award.
The affidavit of prior civil actions must be filed “/a]t the time that an inmate commences a civil
action or appeal against a government entity or employee.” (Emphasis added.) R.C.
2969.25(A). A belated attempt to file the required affidavit cannot excuse noncompliance.
Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, J 9.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987
0c647 - W19
Notably, the Supreme Court of Ohio has upheld dismissal of an inmate’s action pursuant
to this section when the affidavit of prior civil actions failed to describe the nature and outcome
of the civil actions or appeals the inmate had specified. See State ex rel. Norris v. Giavasis, 100
Ohio St.3d 371, 2003-Ohio-6609, 800 N.E.2d 365, 3; see also Watley v. Coval, 10th. Dist.
Franklin No. 03AP-829, 2004-Ohio-1734, {| 6 (upholding dismissal when “in no instance did
plaintiff provide a brief description of the nature of the civil action or appeal”). R.C. 2969.25(A)
does not permit substantial compliance. State ex rel. Manns v. Henson, 119 Ohio St.3d 348,
2008-Ohio-4478, 894 N.E.2d 47, ] 4.
In this case, although Plaintiff filed an “Affidavit of Prior Actions,” the affidavit fails to
provide any information regarding the nature or outcome of his previously filed civil actions and
appeals. Because Plaintiff has failed to comply with the mandatory requirements provided in
R.C. 2969.25(A), which cannot later be corrected, this case should be dismissed.
b. Plaintiff failed to comply with the requirements of 2969.26(A).
R.C. 2969.26(A) mandates:
If an inmate commences a civil action or appeal against a government entity or
employee and if the inmate’s claim in the civil action or the inmate’s claim in the
civil action that is being appealed is subject to the grievance system for the state
correctional institution, jail, workhouse, or violation sanction center in which the
inmate is confined, the inmate shall file both of the following with the court:
(1) An affidavit stating that the grievance was filed and the date on
which the inmate received the decision regarding the grievance.
(2) A copy of any written decision regarding the grievance from
the grievance system.
However, Plaintiff did not file the requisite affidavit with his Complaint stating he filed a
grievance related to his claims, nor did he attach a copy of any written decision regarding such
grievance. To the contrary, Plaintiff neither stated what, if any, grievances he has filed nor the
dates on which he received decisions regarding said grievances. Additionally, Plaintiff failed toFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987
0c647 - W20
comply with R.C. 2969(A)(2) because he did not file with the Court copies of any written
decisions he received. Since Plaintiff has failed to demonstrate he exhausted his administrative
remedies before commencing this civil action, the Complaint should be dismissed.
For the foregoing reasons, Defendants respectfully request that the Court dismiss
Plaintiff's Complaint in its entirety with prejudice, assess costs to Plaintiff, and award any other
relief deemed necessary and just by the Court.
Respectfully submitted,
MICHAEL DEWINE
Ohio Attorney General
/s/ Mindy Worly
MINDY WORLY (0037395)
Principal Assistant Attorney General
Criminal Justice Section, Corrections Unit
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
Phone: (614) 728-0161; Fax: (866) 474-4985
Mindy, Worly @OhioAttormeyGeneral goy
Trial Attorney for Defendants
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing has been electronically filed this 21“ day of August,
2015, and has been served upon pro se Plaintiff Barron Brown, #465-913, Chillicothe
Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601 via U.S. mail, postage prepaid.
/s/ Mindy Worly
MINDY WORLY (0037395)
Principal Assistant Attorney General
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987 0c647 - W16 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO BARRON BROWN, Case No. 15CV-07-5987 Plaintiff, Judge C. Brown Vv. GARY MORHR, et al., Defendants. REPLY OF DEFENDANTS IN SUPPORT OF MOTION TO DISMISS Plaintiff Barron Brown (“Plaintiff”) claims his most recently filed lawsuit revolves around what he alleges is the breach of a private settlement agreement (“Agreement”) which provided for the abatement of asbestos at the Chillicothe Correctional Institution. However, nowhere in the Complaint does Plaintiff claim the asbestos was not abated. Instead, he claims the work was performed, but that the remediation was completed without evidence of certain approvals and permits required by statute. He then tries to parlay this alleged failure to provide copies of approvals and permits into a claim for damages for emotional distress. But the Agreement says nothing about providing him with copies of approvals or permits. And while the Agreement provides “[a]ny inmate at CCI may file an action in state court to enforce this agreement,” nowhere does the Complaint seek specific performance, much less performance of any kind. To the contrary, the Complaint merely asks the Court to compensate him in the amount of $7,500,000.00 for his alleged emotional distress. Nevertheless, the Court of Claims previously considered these claims and dismissed Plaintiff's complaint for emotional distress, finding “incarceration of plaintiff in buildings that were discovered to contain asbestos is not extreme and outrageous conduct sufficient to sustain aFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987 0oc647 - W17 claim for intentional infliction of emotional distress.” In so doing, the Court of Claims likewise found the facts in the complaint insufficient to support a breach of the Agreement. A. All of Plaintiffs Claims Have Been Waived. Ohio Rev. Code 2743.02 specifically provides that “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, which the filing party has against any officer or employee.” Thus, Plaintiff's Court of Claims suit filed against various state agencies waived any and all claims Plaintiff may have had against the Defendants based upon the same acts or omissions, whether for breach of the Agreement or for emotional distress. (Plaintiffs Affidavit of Prior Action, No. 2). Accordingly, because Plaintiff previously filed a complaint in the Court of Claims based on the same act or omission, the Complaint should be dismissed. Fischer v. Kent State Univ., F.3d (6th Cir. 2012) (dismissing plaintiff's complaint where the Court of Claims action addressed similar acts and omissions because the sequence of filing did not matter). B. Plaintiff failed to satisfy the mandatory statutory requirements for inmates to file civil actions. Ohio Rev. Code 2969.25 and 2969.26 set forth a series of requirements that an inmate must meet before commencing a civil action against a government entity or employee. R.C. 2969.25 and 2969.26 apply to civil actions that an inmate commences against the state or an employee of the state in a court of common pleas. R.C. 2969.21(B)(1)(a). The requirements of R.C. 2969.25 and 2969.26 are mandatory, and failure to comply with them subjects an inmate’s action to dismissal. See State ex rel. Spencer v. Bobby, 7th Dist. Mahoning No. 12-MA-147, 2012-Ohio-5615, J 3-6; Blackford v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-373, 2011- Ohio-3369, {| 19-30; McKinney v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-370, 2011- Ohio-3174, JJ 11-16; see also State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262,Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987 0c647 - W18 788 N.E.2d 634, 5; State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998); and State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 285, 685 N.E.2d 1242 (1997). Failure to comply is not just a sufficient reason to dismiss this action, it is also sufficient reason to deny indigency status and assess costs against Plaintiff. State ex rel. Cvijetinovic v. Warden, Belmont Corr. Inst., 7th Dist. No. 10-BE-23, 2011-Ohio-5575, J 3. Plaintiff failed to comply with the filing requirements of R.C. 2969.25(A) and 2969.26(A) and therefore his Complaint should be dismissed and costs assessed to him. a. Plaintiff failed to comply with the requirements of 2969.25(A). Under R.C. 2969.25(A), At the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall 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. The affidavit shall include all of the following for each of those civil actions or appeals: (1) A brief description of the nature of the civil action or appeal; (2) The case name, case number, and the court in which the civil action or appeal was brought; (3) The name of each party to the civil action or appeal; [and] (4) The outcome of the civil action or appeal, including whether the court dismissed the civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether the court made an award against the inmate or the inmate’s counsel of record for frivolous conduct under section 2323.51 of the Revised Code, another statute, or a rule of court, and, if the court so dismissed the action or appeal or made an award of that nature, the date of the final order affirming the dismissal or award. The affidavit of prior civil actions must be filed “/a]t the time that an inmate commences a civil action or appeal against a government entity or employee.” (Emphasis added.) R.C. 2969.25(A). A belated attempt to file the required affidavit cannot excuse noncompliance. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, J 9.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987 0c647 - W19 Notably, the Supreme Court of Ohio has upheld dismissal of an inmate’s action pursuant to this section when the affidavit of prior civil actions failed to describe the nature and outcome of the civil actions or appeals the inmate had specified. See State ex rel. Norris v. Giavasis, 100 Ohio St.3d 371, 2003-Ohio-6609, 800 N.E.2d 365, 3; see also Watley v. Coval, 10th. Dist. Franklin No. 03AP-829, 2004-Ohio-1734, {| 6 (upholding dismissal when “in no instance did plaintiff provide a brief description of the nature of the civil action or appeal”). R.C. 2969.25(A) does not permit substantial compliance. State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, 894 N.E.2d 47, ] 4. In this case, although Plaintiff filed an “Affidavit of Prior Actions,” the affidavit fails to provide any information regarding the nature or outcome of his previously filed civil actions and appeals. Because Plaintiff has failed to comply with the mandatory requirements provided in R.C. 2969.25(A), which cannot later be corrected, this case should be dismissed. b. Plaintiff failed to comply with the requirements of 2969.26(A). R.C. 2969.26(A) mandates: If an inmate commences a civil action or appeal against a government entity or employee and if the inmate’s claim in the civil action or the inmate’s claim in the civil action that is being appealed is subject to the grievance system for the state correctional institution, jail, workhouse, or violation sanction center in which the inmate is confined, the inmate shall file both of the following with the court: (1) An affidavit stating that the grievance was filed and the date on which the inmate received the decision regarding the grievance. (2) A copy of any written decision regarding the grievance from the grievance system. However, Plaintiff did not file the requisite affidavit with his Complaint stating he filed a grievance related to his claims, nor did he attach a copy of any written decision regarding such grievance. To the contrary, Plaintiff neither stated what, if any, grievances he has filed nor the dates on which he received decisions regarding said grievances. Additionally, Plaintiff failed toFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 21 1:28 PM-15CV005987 0c647 - W20 comply with R.C. 2969(A)(2) because he did not file with the Court copies of any written decisions he received. Since Plaintiff has failed to demonstrate he exhausted his administrative remedies before commencing this civil action, the Complaint should be dismissed. For the foregoing reasons, Defendants respectfully request that the Court dismiss Plaintiff's Complaint in its entirety with prejudice, assess costs to Plaintiff, and award any other relief deemed necessary and just by the Court. Respectfully submitted, MICHAEL DEWINE Ohio Attorney General /s/ Mindy Worly MINDY WORLY (0037395) Principal Assistant Attorney General Criminal Justice Section, Corrections Unit 150 East Gay Street, 16th Floor Columbus, Ohio 43215 Phone: (614) 728-0161; Fax: (866) 474-4985 Mindy, Worly @OhioAttormeyGeneral goy Trial Attorney for Defendants CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been electronically filed this 21“ day of August, 2015, and has been served upon pro se Plaintiff Barron Brown, #465-913, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601 via U.S. mail, postage prepaid. /s/ Mindy Worly MINDY WORLY (0037395) Principal Assistant Attorney General