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State ex rel. Sloan v. Mohr

Court of Appeals of Ohio, Seventh District, Belmont

August 28, 2017

STATE EX REL., MARSHALL SLOAN, RELATOR,
v.
GARY MOHR, DIRECTOR, OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, RESPONDENT.

         Writ of Mandamus.

          For Relator: Marshall Soan, pro se

          For Respondent: Atty. Debra Gorrell Wehrle Assistant Attorney General

          JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Mary DeGenaro

          OPINION AND JUDGMENT ENTRY

          PER CURIUM

         {¶1} Relator Marshall Sloan, a prison inmate at Ohio's Belmont Correctional Institution, has filed a pro se petition for a writ of mandamus seeking to have this Court compel Respondent Gary Mohr, Director of the Ohio Department of Rehabilitation and Corrections, to provide him specific medical treatment and twenty-four hour access to toilet facilities. Respondent has filed a motion to dismiss.

         {¶2} The bulk of Relator's 200-page pro se complaint (including exhibits) addresses his medical claim. Relator alleges he has Hepatitis C and liver cirrhosis. He seeks specific diagnostic testing and to be treated with a specific set of medications. According to exhibits attached to his complaint, Relator is a "non responder" to a previous treatment attempt and is experiencing elevated ammonia levels which are being treated with a certain medication. Medical personnel at the prison have indicated that the medications Relator seeks to be treated with are not on the drug formulary list and, therefore, cannot be provided to him. Relator also seeks unfettered twenty-four hour access to toilet facilities.

         {¶3} Respondent characterizes Relator's medical claim as a 42 U.S.C. 1983 medical indifference claim for which Relator has an adequate remedy at law in federal court. Concerning Relator's claim about the toilet facilities, Respondent argues that Relator also has an adequate remedy at law in the form of the inmate grievance procedure.

         {¶4} A writ of mandamus is an extraordinary remedy which should be exercised with caution and issued only when the right is clear. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 142 Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶ 11. Entitlement to a writ of mandamus requires the relator to demonstrate: (1) they have a clear legal right to the relief, (2) the respondent has a clear legal duty to provide that relief, and (3) they have no adequate remedy at law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12.

         {¶5} Respondent has filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests only the legal sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). For a court to dismiss on this basis, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. In ruling on a Civ.R. 12(B)(6) motion, the court must accept the factual allegations contained in the complaint as true and draw all reasonable inferences from these facts in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). If there is a set of facts consistent with the complaint that would allow for recovery, the court must not grant the motion to dismiss. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991).

         Failure to Exhaust Prison Inmate Grievance Procedure

         {¶6} As an initial matter, we note Relator's complaint must be dismissed because he failed to include an affidavit establishing he has exhausted the prison inmate grievance procedure. Pursuant to R.C. 2969.26(A), if an inmate commences a civil action or appeal against a governmental entity or employee, and if the inmate's claim is subject to the grievance procedure system, the inmate must file: (1) an affidavit stating the grievance was filed, along with the date on which the decision regarding the grievance was received; and (2) a copy of any written decision received regarding the grievance from the grievance system.

         {¶7} The inmate grievance procedure is designed to address inmate complaints related to any aspect of institutional life that directly and personally affects the grievant. It is a three-step process set out in Ohio Admin.Code 5120-9-31. Step one is the filing of an informal complaint. Ohio Admin.Code 5120-9-31(K)(1). The informal complaint is to be filed within fourteen days of the incident giving rise to the complaint. The staff must then respond to the informal complaint within seven days. Step two is to obtain a notification of grievance, if the inmate is unsatisfied with the resolution of the informal complaint. Ohio Admin. Code 5120-9-31(K)(2). The notification of grievance is to be filed within fourteen days of the informal complaint response. The inspector of institutional services shall provide a written response to the grievance within fourteen days of receipt. Step three is the filing of an appeal of the disposition of grievance to the office of the Chief Inspector of ODRC. Ohio Admin.Code 5120-9-31 (K)(3). This appeal must be filed within fourteen days of the disposition of grievance. An inmate does not exhaust his remedies under Ohio Admin.Code 5120-9-31 until he has received a decision in an appeal to the office of the Chief Inspector.

         {¶8} Relator argues that the grievance procedure is arbitrary and futile. However, compliance with R.C. 2969.26's affidavit requirement is mandatory and the failure to satisfy this statutory requirement is grounds for dismissal. McKinney ...


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