Dunn v. Ohio Dept. of Rehab. & Corr. , 2021 Ohio 3717 ( 2021 )

[Cite as Dunn v. Ohio Dept. of Rehab. & Corr., 2021-Ohio-3717.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Marvin Dunn, :
Plaintiff-Appellant, :
No. 20AP-430
v. : (Ct. of Cl. No. 2020-00309JD)
Ohio Department of Rehabilitation : (ACCELERATED CALENDAR)
& Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on October 19, 2021
On brief: Dave Yost, Attorney General, Anne Berry Strait,
and Samantha J. Scherger, for appellee.
On brief: Marvin Dunn, pro se.
APPEAL from the Court of Claims of Ohio
KLATT, J.
{¶ 1} Plaintiff-appellant, Marvin Dunn, appeals a judgment of the Court of Claims
of Ohio that dismissed his action against defendant-appellee, the Ohio Department of
Rehabilitation and Correction ("ODRC"). Because we agree with the trial court that the sole
claim asserted in Dunn's complaint arose under 42 U.S.C. 1983 ("Section 1983"), we affirm.
{¶ 2} Dunn is incarcerated in an Ohio correctional institution. On May 13, 2020,
he filed a complaint against ODRC. In the complaint, Dunn alleged that on April 10, 2020,
ODRC notified him that another inmate had contracted COVID-19. According to Dunn, in
the month that followed, 4,000 inmates and 100 prison staff members tested positive for
No. 20AP-430 2
COVID-19, and one correctional officer and one nurse died of the disease. Dunn alleged
that he would not have been exposed to COVID-19 had ODRC provided him with a "mask,
suit, gloves, [or] protective wear." (Compl. at 3.) Dunn also alleged that ODRC failed to
properly train its employees to prevent the spread of COVID-19 through the prison
population. Dunn asserted that ODRC was "liable for plaintiff's injury's [sic], damage's
[sic], and losses, and all future claim's [sic] arising from the negligence of defendant's
action's [sic], that failed to prevent exposure of [sic] deadly virus that is now in the same
dorm as plaintiff." Id. at 6.
{¶ 3} ODRC moved to dismiss Dunn's action under Civ.R. 12(B)(1) for lack of
subject-matter jurisdiction. In a judgment dated August 17, 2020, the trial court granted
that motion. The trial court held that Dunn sought recovery for the conditions under which
he was incarcerated, so he asserted a claim under Section 1983. Because such a claim is not
cognizable in the Court of Claims, the trial court dismissed Dunn's action.
{¶ 4} Dunn now appeals the trial court's August 17, 2020 judgment, and he assigns
the following errors:
1. The Trial court error [sic] in Determing [sic] in its Decision
Based on lack of subject-matter jurisdiction.
2. The Trial court error [sic] In using common Law good faith
in truth with A prior Notice standard.
{¶ 5} Pursuant to Civ.R. 12(B)(1), a defendant may move to dismiss an action for
lack of subject-matter jurisdiction. A trial court will grant such a motion if the complaint
fails to raise a cause of action cognizable by the forum. State ex rel. Bush v. Spurlock, 42
Ohio St.3d 77, 80 (1989). Because whether a court possesses subject-matter jurisdiction is
a question of law, appellate courts review a ruling on a Civ.R. 12(B)(1) motion de novo.
State ex rel. Ohio Civ. Serv. Employees Assn. v. Ohio, 146 Ohio St.3d 315, 2016-Ohio-478,
¶ 12; Crosby-Edwards v. Ohio Bd. of Embalmers and Funeral Dirs., 175 Ohio App.3d 213,
2008-Ohio-762, ¶ 21 (10th Dist.).
{¶ 6} In the case at bar, the trial court determined that it lacked subject-matter
jurisdiction over Dunn's action because the sole claim Dunn asserted arose under Section
1983. Neither Dunn nor ODRC disputes that the Court of Claims lacks subject-matter
jurisdiction over Section 1983 claims. See Guillory v. Ohio Dept. of Rehab. & Corr., 10th
No. 20AP-430 3
Dist. No. 07AP-861, 2008-Ohio-2299, ¶ 12 ("It is well-established that the Court of Claims
lacks subject-matter jurisdiction over * * * claims arising under Section 1983, Title 42, U.S.
Code."). Instead, the parties contest the nature of the claim Dunn pled. To resolve that
debate, we will review the applicable law to determine what claim or claims the facts in
Dunn's complaint might support.
{¶ 7} "Section 1983 provides 'a cause of action for deprivation under color of state
law, of any rights, privileges or immunities secured by the Constitution or laws of the United
States.' " Stoudemire v. Mich. Dept. of Corrs., 705 F.3d 560, 567 (6th Cir.2013), quoting
Jones v. Muskegon Cty., 625 F.3d 935, 940-41 (6th Cir.2010). State prisoners may use
Section 1983 to file civil rights actions to challenge the conditions of their confinement as
violative of the Eighth Amendment. Dotson v. Wilkinson, 329 F.3d 463, 466 (6th
Cir.2003); State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 91 (1994).
{¶ 8} The Eighth Amendment protects all people from "cruel and unusual
punishments."
"When the State takes a person into its custody and holds him
there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his
safety and general well being. * * * The rationale for this
principle is simple enough: when the State by the affirmative
exercise of its power so restrains an individual's liberty that it
renders him unable to care for himself, and at the same time
fails to provide for his basic human needs -- e.g., food, clothing,
shelter, medical care, and reasonable safety -- it transgresses
the substantive limits on state action set by the Eighth
Amendment * * *."
Helling v. McKinney, 509 U.S. 25, 32 (1993), quoting DeShaney v. Winnebago Cty. Dept.
of Social Servs., 489 U.S. 189, 199-200 (1989). Consequently, " 'the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to scrutiny
under the Eighth Amendment.' " Farmer v. Brennan, 511 U.S. 825, 832 (1994), quoting
Helling at 31. The amendment imposes the duty on prison officials to ensure "that inmates
receive adequate food, clothing, shelter, and medical care, and [ ] 'take reasonable measures
to guarantee the safety of the inmates.' " Id., quoting Hudson v. Palmer, 468 U.S. 517, 526-
27 (1984).
No. 20AP-430 4
{¶ 9} The analysis of a claim that conditions of confinement violate the Eighth
Amendment includes an objective and a subjective element. Wilson v. Williams, 961 F.3d
829, 839 (6th Cir.2020). To satisfy the objective element, "the inmate must show that he
is incarcerated under conditions posing a substantial risk of serious harm." Farmer at 834.
"Because routine discomfort is 'part of the penalty that criminal offenders pay for their
offenses against society,' " * * * " 'only those deprivations denying the minimal civilized
measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment
violation.' " Hudson v. McMillian, 503 U.S. 1, 9 (1992), quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981) (first part), and Wilson v. Seiter, 501 U.S. 294, 298 (1991) (second
part). Nothing but "extreme" deprivations qualify. Id.{¶ 10} To satisfy the subjective element, the inmate must show deliberate
indifference to inmate's health or safety. Farmer at 834. A prison official is deliberately
indifferent "if he knows that inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it." Id. at 847. In other words, the
prison official must demonstrate recklessness as generally defined by criminal law—the
official must disregard a risk of harm to prisoners of which he is subjectively aware. Id. at
836-37, 839-40.
{¶ 11} Here, conceivably, the complaint states facts that could form a claim for relief
under Section 1983 based on the conditions of Dunn's confinement. By not providing
inmates with personal protective equipment and not adequately training its staff, ODRC
has arguably failed in its Eighth Amendment duty to maintain Dunn's reasonable safety.
As an infectious disease with a relatively high mortality rate, COVID-19 poses a substantial
risk of serious harm to prison inmates. See Smith v. DeWine, 476 F.Supp.3d 635, 662
(S.D.Ohio 2020) (finding COVID-19 "to be an objectively intolerable risk of harm to
prisoners when it enters a prison"). In his complaint, Dunn alleges that ODRC was aware
of the dangers of COVID-19, but it did not do enough to prevent his exposure to the disease.
The trial court, therefore, did not err in construing Dunn's complaint as potentially setting
forth a Section 1983 claim—a claim over which the trial court lacks jurisdiction as both
parties acknowledge.
{¶ 12} However, Dunn argues his complaint alleged a negligence claim. We
recognize that at several points in his complaint, Dunn alleged that ODRC acted negligently.
No. 20AP-430 5
Nevertheless, it is the underlying nature of the claims brought in the complaint rather than
the legal terms used by the plaintiff that controls whether a trial court has subject-matter
jurisdiction. Jackson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-621, 2020-Ohio-
1518, ¶ 18, citing Guillory, 10th Dist. No. 07AP-861, 2008-Ohio-2299, at ¶ 11 (stating that
"the court must look beyond the language used in the complaint and examine the
underlying nature of the claims"); see also State ex rel. Columbia Gas of Ohio, Inc. v.
Henson, 102 Ohio St.3d 349, 2004-Ohio-3208, ¶ 19 (stating that the "mere fact [a plaintiff]
cast its allegations in the underlying case to sound in tort is insufficient to confer
jurisdiction upon [a particular trial court]"). Here, the underlying nature of the claims
alleged in Dunn's complaint solely challenged his conditions of confinement as protected
by the Eighth Amendment. In essence, Dunn's complaint only alleged that he has been
unreasonably exposed to the COVID-19 virus. His complaint alleged no actual injury
resulting from the actions or inactions of ODRC. Without alleging an injury proximately
resulting from the breach of a duty, there is no claim for negligence. Rieger v. Giant Eagle,
Inc., 157 Ohio St.3d 512, 2019-Ohio-3745, ¶ 10 (to establish a claim for negligence, a
plaintiff must show the existence of a duty, breach of that duty, and injury proximately
resulting from the breach). For these reasons, we agree with the trial court that Dunn's
complaint only alleged a Section 1983 claim.1
{¶ 13} Factually, this case is almost identical to White v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 20AP-325, 2021-Ohio-3500, a case very recently decided by this court.
White is an inmate incarcerated in an Ohio correctional institution. White alleged that
ODRC failed to take reasonable measures to protect him from exposure to COVD-19. He
further alleged that as of the date of the filing of his complaint he was in good health and
1 ODRC argues that Dunn could not state a claim for negligence because he asserted in his complaint that
ODRC acted in bad faith, wantonly, willfully, maliciously, recklessly, intentionally, and negligently. Because
negligent conduct excludes intentional, wanton, and willful conduct, ODRC contends that, by pleading ODRC
acted intentionally, wantonly, and willfully, Dunn eliminated his ability to plead a negligence claim. This
argument, however, ignores Civ.R. 8(E)(2), which provides that a plaintiff may plead alternatively. According
to Civ.R. 8(E)(2), "[w]hen two or more statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more
of the alternative statements." Consequently, "[t]he fact that the allegations [in a complaint] are inconsistent
does not render them insufficient." Smith v. Al-Mazni, 6th Dist. No. L-16-1311, 2017-Ohio-7989, ¶ 21. Thus,
for example, a plaintiff could plead alternative claims based on the inconsistent factual allegations that the
defendant had intentionally touched the plaintiff and negligently touched the plaintiff. Brown v. Holiday
Inn Express & Suites, 10th Dist. No. 17AP-477, 2018-Ohio-3281, ¶ 13. Because Civ.R. 8(E)(2) permits
alternative pleading, ODRC's argument is unpersuasive.
No. 20AP-430 6
not infected. Despite several allegations of negligence in the complaint, this court found
that the underlying nature of White's claims solely related to the conditions of his
confinement. Id. at ¶ 11. Therefore, this court affirmed the Court of Claims’ dismissal of
the case for lack of subject-matter jurisdiction. Id. at ¶ 12. The case at bar is
indistinguishable from White.
{¶ 14} We recognize that " 'Ohio law imposes a duty of reasonable care on the state
to provide for its prisoners' health, care, and well-being.' " Nix v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 13AP-547, 2014-Ohio-2902, ¶ 30. " 'In the context of a custodial
relationship between the state and its inmates, the state owes a common-law duty of
reasonable care and protection from unreasonable risks of physical harm.' " Allen v. Dept.
of Adm. Servs. Office of Risk Mgt., 10th Dist. No. 19AP-729, 2020-Ohio-1138, ¶ 24, quoting
McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-177, 2004-Ohio-5545, ¶ 16.
"Although the state is not an insurer of inmate safety, 'once it becomes aware of a dangerous
condition it must take reasonable care to prevent injury to the inmate.' " Skorvanek v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 17AP-222, 2018-Ohio-3870, ¶ 28, quoting Briscoe
v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 02AP-1109, 2003-Ohio-3533, ¶ 20.
{¶ 15} Just as the Eighth Amendment requires prison officials to take reasonable
measures to guarantee the safety of inmates, Ohio law similarly imposes a duty on the state
to exercise reasonable care to keep inmates safe. Therefore, depending on the facts alleged,
a complaint could conceivably contain both a Section 1983 claim and a negligence claim.
Here, however, we conclude that Dunn's complaint solely challenged his conditions of
confinement. See, e.g., White; Guillory, 10th Dist. No. 07AP-861, 2008-Ohio-2299, at ¶ 12
("it is clear from the body of the complaints that the underlying nature of the 'negligence'
claims quoted above are not claims of negligence").
{¶ 16} For the foregoing reasons, we overrule Dunn's assignments of error, and we
affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
BROWN, J., concurs.
SADLER, J., concurs in judgment only.