The opinion of the court was delivered by: Magistrate Judge Norah McCann King
ORDER AND REPORT AND RECOMMENDATION
This is a civil rights action under 42 U.S.C. §1983 ("Section 1983"), in which Mason Harris ("plaintiff"), a state inmate, claims that he has been denied his constitutional rights by defendants Tina Groce and Daniel Borchert. This matter is before the Court on plaintiff's Preacipe ("Plaintiff's Motion for a Hearing"), Doc. No. 16, Plaintiff's Pro Se Motion for a Pretrial Conference (With the Plaintiff's Presence) ("Plaintiff's Motion for a Conference"), Doc. No. 17, Defendant Daniel Borchert's Motion to Dismiss, Doc. No. 8, and Defendant Tina Groce's Motion to Dismiss, Doc. No. 9. For the reasons that follow, both of plaintiff's motions are DENIED as moot and it is RECOMMENDED that both defendants' motions be GRANTED.
Plaintiff is a prisoner of the State of Ohio, currently incarcerated at the Lebanon Correctional Institution ("LeCI"). Complaint pg. 1.*fn1 On approximately December 15, 2004, plaintiff was transferred to LeCI from Madison Correctional Institution ("MaCI"). Id. pgs. 14-15. Plaintiff alleges that defendant Groce, a transport officer employed by MaCI, "packed up" plaintiff's personal belongings and that she is responsible for losing and damaging some of those belongings. Id. pg. 11.
On December 19, 2004, plaintiff filed an Informal Complaint at LeCI, complaining that defendant Groce violated plaintiff's rights by losing or damaging his personal belongings during his move from MaCI to LeCI. Id. pgs. 4, 11. Dissatisfied with the response to his Informal Complaint, plaintiff filed a Notification of Grievance on January 4, 2005. Id. Although plaintiff was dissatisfied with the decision issued on the Notification of Grievance, Id., plaintiff did not pursue the grievance any further. Id. pgs. 11, 15.
On February 25, 2005, plaintiff filed a lawsuit in the Ohio Court of Claims against Ms. Groce, Case Number 2005-03296-AD, based on the allegations in his grievances. Id. pg. 6; Defendant Groce's Motion to Dismiss, Exhibit A. On August 2, 2005, the Court of Claims issued findings of fact and conclusions of law and the case was dismissed. Id. pg. 11.
On October 27, 2005, plaintiff filed the Complaint in this action, naming as defendants Tina Groce and Daniel Borchert. This action presents the precise claim against defendant Groce as plaintiff asserted in the Court of Claims case, alleging that her actions violated his constitutional rights.
Defendant Borchert is the Ohio Court of Claim's Clerk who issued the findings of fact and conclusions of law in plaintiff's Court of Claims case. Id. pg. 5. Plaintiff alleges that, in resolving that action, defendant Borchert violated plaintiff's constitutional rights. Id. pg. 1.
On December 15, 2005, defendant Borchert filed his motion to dismiss, Doc. No. 8, and on December 19, 2005, defendant Groce filed her motion to dismiss, Doc. No. 9. On April 14, 2006, plaintiff filed his opposition to both defendants' motions ("Plaintiff's Memorandum contra") , Doc. No. 12.
On May 31, 2006, plaintiff filed Plaintiff's Motion for a Hearing, Doc. No. 16, and on June 3, 2006, he filed Plaintiff's Motion for a Conference, Doc. No. 17.
Defendants move to dismiss plaintiff's claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(6) attacks the legal sufficiency of the complaint. Roth Steel Prod. v. Sharon Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). In determining whether dismissal on this basis is appropriate, the complaint must be construed in the light most favorable to the plaintiff, and all well-pleaded facts must be accepted as true. Scheuer v. Rhodes,416 U.S. 232, 236 (1974); Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996); Misch v. The Cmty. Mutual Ins. Co., 896 F. Supp. 734, 738 (S.D. Ohio 1994). A claim will be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Thus, this Court will grant a motion to dismiss under Rule 12(b)(6) if the complaint is without merit because of an absence of facts or law to support the claims in it, or if on the face of the complaint there is an insurmountable bar to relief. See generally, ...