Maharathah Karmasu v. Frederick Bendolf

• Decision Date: 28 September 1994
• Docket Number: 94-LW-2479,93CA2160
• Parties: MAHARATHAH KARMASU, Plaintiff-Appellant v. FREDERICK BENDOLF, et al., Defendant-Appellees Case
• Court: Ohio Court of Appeals

MAHARATHAH KARMASU, Plaintiff-Appellant v. FREDERICK BENDOLF, et al Defendant-Appellees

No. 93CA2160.

94-LW-2479 (4th)

Court of Appeals of Ohio, Fourth District Scioto

September 28, 1994

Maharathah Karmasu, Lucasvllle, Ohio, Pro se.

Lee Fisher, Ohio Attorney General, and Suzanne E. Mohr, Assistant Attorney General, Columbus, Ohio, for Appellees.

DECISION

Stephenson J.

This is an appeal from a judgment dismissing the federal civil rights action brought by Maharathah Karmasu, plaintiff below and appellant herein, against various guards and employees at the Southern Ohio Correctional Facility (hereinafter referred to as "S.O.C.F.") where he is incarcerated.^[1] The following errors are assigned for our review:

I. "Trial court errored [sic] in binding a pro se plaintiff prisoner to the rigid standards of unincarcerated pro se and attorney litigants."

II. "Trial court errored [sic] in not allotting a pro se litigant a fair and informed opportunity to correct the inefficiencies of the complaint."

III. "Trial court errored [sic] in adopting the logic of Ledger vs Horn[.]"

IV. "Trial court errored [sic] in adopting the logic of [Leaman vs Ohio Dept. of M.R.D.D.]"

V. "Trial court errored [sic] in striking the authority of O.R.C. 2743.02(A) as to whether or not a waiver becomes effective and when."

VI. "Trial court errored [sic] in relying upon the logic of Def's [sic] counsel to overturn or ignore the wisdom of Smith vs Stempel."

VII. "Trial court errored [sic] in ruling that ORC [sic] 2743.02 was constitutional in application even though it is used to waive the power of the federal code and houses of congress."

VIII. "Trial court errored [sic] in determining plts's [sic] prior court of claims actions waived the instant action even though not same action."

IX. "Trial court errored [sic] in determining that the action was barred by the statute of limitations."

X. "Trial court errored [sic] in not applying Ohio's four or ten year statute of limitations."

XI. "Trial court errored [sic] in ruling that plaintiff did not submit a sufficient pro se complaint[.]"

XII. "Trial court errored [sic] in weighing issues of fact upon a 12(B)(6) motion to dismiss the action."

XIII. "Trial court errored [sic] in determining that a dismissal from a prison work assignment upon basis of color, legal litigation and grievance procedure usage did not raise a constitutional claim."

XIV. "Trial court errored [sic] in ruling that punishing an inmate by extremes of temperature for color legal and grievance litigation did not state a due process or other constitutional claim."

XV. "Trial court errored [sic] in ruling that the ridiculing of an inmate with deadly remarks in retaliation for legal and grievance litigation did not state a constitutional claim."

XVI. "Trial court errored [sic] in ruling that the placement of an inmate in a feces encrusted oriental dry cell did not state a constitutional claim."

XVII. "Trial court errored [sic] in ruling that the prose complaint did not state a proper claim upon denial of his legal property and denial of access to the courts because of such."

XVIII. "Trial court errored [sic] in ruling that an inmate under O.A.C. 5120-9-14 must not be separated from potentially hostile inmates, when the inmate has not been released from protective custody status."

XIX. "Trial court errored [sic] in ruling that the act of an inmate reminding prison officials of their duties under the O.A.C. constitutes an order."

XX. "Trial court errored [sic] in ruling that the placement of an inmate in a box-car type solitary confinement cell without any due process because of past grievance and legal litigations did not state a cause of action and a violation of constitutional rights [.]"

XXI. "The trial court errored [sic] in not appointing counsel under [Section 1983, Title 42, U.S. Code] to correct the inefficiencies of the pleading when it did not give plaintiff a fair and informed opportunity to do so."

A review of the record reveals the following facts pertinent to this appeal. The case was commenced below on January 12 1993, as a civil rights action brought pursuant to Section 1983 et. seq., Title a 42, U.S. Code. Appellant claimed that he was the victim of racist discrimination, physical attacks, loss of prison job and denial of legal and religious materials at the behest of S.O.C.F. personnel. The bulk of his allegations were against appellee, Frederick Bendolf, who was supposed to have either directly infringed on appellant's civil rights or conspired with a group of inmates to affect such infringement. Although appellees Underwood and Chandler were alleged to have illegally deprived appellant of religious and legal materials when he was put in "the hole," the averments against the remaining defendants were, by and large, that they failed to intervene and prevent such abuses when reported. Appellant sought an order ending the discrimination and "aparthedic [sic] practices" against him at S.O.C.F. as well as $302,500.00 in damages.

The transcript of docket and journal entries in the cause sub judice indicates that service of summons and complaint was effectively made on all defendants soon after the action was begun. Nevertheless, no answer was ever made by appellees to the allegations against them and nothing was filed by counsel for nearly six (6) months. On July 1, 1993, appellees filed a certain "motion for summary judgment" seeking a dismissal of the action pursuant to Civ.R. 12(B)(6) on the grounds that the complaint failed "to state a claim upon which relief can be granted."^[2] Appellees argued, inter alia, that the complaint was impermissibly conclusory, that it failed to properly raised constitutional issues and that, in any event, the claim for denial of religious and legal materials had previously been raised in the Ohio Court of Claims and, therefore, could not be raised in the instant case. Copies of complaints previously filed by appellant with the Court of Claims were attached as exhibits to the motion in support of this argument.

The matter was set for consideration at a non-oral hearing scheduled for July 23, 1993. Prior to that time, appellant filed his memorandum in opposition to dismissal. The lower court found the motion to be well taken and on July 26, 1993, a judgment entry was filed dismissing the action. This appeal followed.

We begin our analysis by narrowing the range of issues appellant would have us consider. The lower court gave no indication whatsoever of its reason(s) for dismissing the cause sub judice. The judgment, in its entirety, stated as follows:

"This matter comes before this court on this 23rd day of July, 1993, on defendant's motion to dismiss. This court finds said motion well taken and the same is hereby granted.

Wherefore, it is the ORDER of this Court that this action be dismissed."

In the absence of guidance as to the lower court's reasoning, the parties (as well as this court) have been left to speculate about the basis for the dismissal. A number of errors assigned by appellant for our review assume that the trial court adopted a particular argument advanced by appellees (in their motion) and then ruled accordingly. Appellant would have us review the legal correctness of those arguments as if they had been expressly incorporated by the trial court into its judgment entry. We decline the invitation. A trial court speaks only through its journal, In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173 at fn. 3; Schenley v. Kauth (1953), 160 Ohio St. 109 at paragraph one of the syllabus, and an appellate court will not, ordinarily, review matters which are not set forth in the judgment entry. Snouffer v. Snouffer (1993), 87 Ohio App.3d 89, 91; Howard v. Wills (1991), 77 Ohio App.3d 133, 140 at fn. 5. In that the judgment entered below did not expressly set forth the ruling(s) challenged by appellant in some of his argument(s), we will not review them. To do so would be tantamount to issuing an advisory opinion on those matters which is something from which an appellate court should refrain. See e.g. In re Collier (1993), 85 Ohio App.3d 232, 239; State v. Bistricky (1990), 66 Ohio App.3d 395, also see Cherry v. Leesburg (Jan. 31, 1990), Highland App. No. 8, unreported at 4, fn. 2. Accordingly, the third, fourth, fifth, sixth, seventh, eighth, ninth and tenth assignments of error are summarily overruled.^[3]

The only real issue in this case is whether the trial court erred procedurally in dismissing appellant's civil rights claims and there is no need to reach the underlying substantive merit of any other argument. See Fyffe v Dep't of Rehabilitations & Correction (Sep. 30, 1993), Franklin App. No. 93AP-793, unreported. Appellant's eleventh, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and twentieth assignments of error all raise varying arguments to the effect that the lower court committed procedural error in dismissing certain claims. These arguments will be considered together. It is noted at the outset that our analysis is guided by the principle that, in reviewing a complaint on a motion to dismiss pursuant to Civ.R. 12(B)(6), all factual allegations must be presumed true and all reasonable inferences must be made in favor of the non-moving party. See State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490; Perez v. Cleveland (1993), 66 Ohio St.3d 397, 399; York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144. The complaint may be dismissed only if it appears beyond doubt that plaintiff can prove no set of facts permitting recovery. Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio st.3d 541, 544; Anderson v. Olmstead Utility Equip. Inc. (1991), 60 Ohio St.3d 124, 130-131; Brien v. University Community Tenants Union (19...