Bo Guess v. Reginald Wilkinson
| Decision Date | 14 October 1997 |
| Docket Number | 97-LW-4543,97APE03-337 |
| Parties | Bo Guess,Plaintiff-Appellant, v. Reginald Wilkinson, Defendant-Appellee |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Bo Guess, pro se.
Betty D. Montgomery, Attorney General, and Robert C. Angell, for appellee.
Plaintiff-appellant, Philip E. (Bo) Guess, appeals from a judgment of the Franklin County Court of Common Pleas dismissing his complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted.
Plaintiff is incarcerated at the Southern Ohio Correctional Facility ("S.O.C.F."). On December 20, 1996 plaintiff filed a complaint, styled "42 U.S.C. 1983 Civil Action in a State Court for Twenty Million Dollars," in the Franklin County Court of Common Pleas. Plaintiff's complaint named Reginald A. Wilkinson, the Director of the Ohio Department of Rehabilitation and Correction ("Director"), as the sole defendant and contained four separate 1983 claims. Although plaintiff's four claims are illegible in places and somewhat difficult to discern even where legible, they appear to allege that S.O.C.F employees: (1) violated plaintiff's unspecified constitutional rights by denying him his December commissary privileges; (2) deprived plaintiff of his constitutional right of access to the courts through the denial of commissary privileges which prevents plaintiff from purchasing writing supplies and postage; (3) violated plaintiff's due process rights through the enforcement of recently enacted R.C. 2969.21 through 2969.27 without prior notice; and (4) inflicted cruel and unusual punishment on plaintiff in violation of the Eighth Amendment to the United States Constitution by preventing plaintiff from purchasing or possessing a comb with which to comb his hair for approximately three years.
In lieu of an answer, the Director, on January 14, 1997, filed a motion to dismiss plaintiff's complaint, pursuant to Civ.R. 12(B)(6), for failure to state a claim upon which relief can be granted. On March 3, 1997, the trial court dismissed plaintiff's complaint, pursuant to Civ.R. 12(B)(6), and entered judgment for the Director. The trial court held that relief could not be granted on plaintiff's first claim because plaintiff did not allege that the Director had either encouraged or directly participated in the alleged denial of December commissary privileges as required to state a claim under Section 1983, Title 42, U.S.Code. The trial court further held that relief could not be granted on plaintiff's second, third, and fourth claims as those claims were barred by the doctrine of res judicata. Plaintiff appeals from the judgment of the trial court assigning the following errors:
Plaintiff's assignments of error are incomprehensible. Therefore, we will address both as though they allege that the trial court erred in dismissing plaintiff's complaint for failure to state a claim. When reviewing a judgment granting a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, an appellate court must independently review the complaint to determine if dismissal was appropriate. McGlone v. Grimshaw (1993), 86 Ohio App.3d 279, 285. The appellate court need not defer to the trial court's decision in Civ.R. 12(B)(6) cases. Id. Dismissal of a claim for failure to state a claim upon which relief may be granted is appropriate only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144. In construing a complaint on a motion to dismiss pursuant to Civ.R. 12(B)(6), a court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. However, a court need not presume the truth of conclusions unsupported by factual allegations. Id. at 193.
Turning first to the trial court's dismissal of plaintiff's second, third, and fourth assignments of error on the grounds that the claims were barred by the doctrine of res judicata. As noted, the Director did not file an answer. Instead, the Director raised the defense of res judicata in his Civ.R. 12(B)(6) motion. It is well-settled that res judicata is an affirmative defense which must be raised in a defendant's answer or be deemed waived. Civ.R. 8(C); see, also, State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109; Star Bank, N.A., Cincinnati v. Management Technologies, Inc. (1990), 69 Ohio App.3d 147, 149. It is equally well settled that the defense of res judicata may not be raised by a motion to dismiss pursuant Civ.R. 12(B). Freeman, supra. Therefore, the trial court erred in dismissing plaintiff's second, third, and fourth claims on the basis of res judicata.
However, each of plaintiff's four claims are brought pursuant to Section 1983, Title 42, U.S.Code. Section 1983, provides as follows:
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