DocketNumber: No. 93CA1977.
Citation Numbers: 644 N.E.2d 686, 96 Ohio App. 3d 91
Judges: STEPHENSON, Judge.
Filed Date: 7/5/1994
Status: Precedential
Modified Date: 1/13/2023
This is an appeal from a judgment of the Ross County Court of Common Pleas dismissing the Section 1983 complaint filed by Michael E. Shockey, plaintiff below and appellant herein, for failure to state a claim upon which relief can be granted, Civ.R. 12(B)(6). Appellant assigns the following error for our review:
"The trial court erred to the prejudice of the plaintiff-appellant for the dismissal of his complaint for declaratory judgment, injunctive relief and money damages pursuant to the Ohio Revised Code, Section
A review of the record reveals the following facts pertinent to this appeal. Appellant is incarcerated in the Chillicothe Correctional Institute ("CCI"). On June 2, 1993, appellant filed a "complaint for declaratory judgment, injunctive *Page 93
relief and money damages." Named as defendants were Reginald A. Wilkinson, Director of the Department of Corrections; Terry Morris, Warden at CCI; Earl Stump, Director of Psychological Services; Kenith Eberts, Director of Social Services; and Margarette Ghee, Chairman of the Ohio Adult Parole Authority. Appellant asserted that his action was being brought pursuant to Section 1983, Title 42, U.S.Code. Appellant's complaint alleged that (1) he is currently an inmate at CCI; (2) Polaris is a voluntary program for sex offenders; (3) he is refusing participation in the Polaris Program because he would have to abandon his
On July 15, 1993, appellees filed a motion to dismiss pursuant to Civ.R. 12(B)(6).1 The matter was set for nonoral hearing on August 11, 1993. Subsequently, by entry dated August 17, 1993, the court granted appellees' motion and ordered appellant's complaint dismissed. This appeal follows.
In his sole assignment of error, appellant asserts the court erred in dismissing his complaint for failure to state a claim upon which relief can be granted. More specifically, appellant argues that by denying him release on parole on the grounds that he has not participated in the Polaris Program, appellees have violated his rights against self-incrimination under the
In order for a court to dismiss a complaint for failure to state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. *Page 94 York v. Ohio State Hwy. Patrol (1991),
A complaint alleging Section 1983 as the basis for the action must meet two requirements. First, there must be an allegation that the conduct in question was performed by a person acting under color of state law. Second, that conduct must have deprived the plaintiff of a federal right. Cooperman v. Univ.Surgical Assoc., Inc. (1987),
From the record before us, it appears that appellant was indicted in January 1977 on one count of felonious assault, one count of kidnapping, and one count of rape. Pursuant to a plea bargain, appellant pleaded guilty to the kidnapping charge and the two remaining charges were dropped. Appellant was eventually incarcerated at CCI.
The Polaris Program is available to CCI inmates who are sex offenders. The program is not mandatory, but rather relies on voluntary participation. Prison authorities determined that appellant's offense was rooted, in part, in sexual motivation and he was offered the opportunity to participate in the Polaris Program. Appellant declined to participate and consequently received unfavorable reviews on his parole applications.
Participants in the Polaris Program must agree to abide by certain conditions, including the following, which are set forth in the resident contract:
"B. Program participants shall:
"* * *
"2. Meet participation criteria as follows:
"* * *
"b. Agree to become completely honest and assume full responsibility for your offenses and your behavior. *Page 95
"c. Sign consent to be videotaped FOR THE PURPOSE OF SUPERVISION AND EVALUATION OF SESSIONS."
In addition, the contract states:
"Information given treatment team members in individual or group sessions will not be given to individuals who are not on the Sex Offender Treatment Staff without the participant's written consent, unless state or federal law mandates release of that information or there is a clear indication that the participant is in danger of physically harming himself or someone else. Identities of victims of sexual offenses — prosecuted or unprosecuted — will be reported."
Thus, it would appear that a participant in the Polaris Program must be willing to admit all sex offenses which he has committed and that these admissions will be reported.
Appellant maintains that he is being discriminated against by the Parole Board because he refuses to participate in the Polaris Program. He states that participation in the Polaris Program requires that a participant give up his right against self-incrimination because participants must agree to acknowledge their offenses and accept responsibility for them. The gravamen of appellant's argument appears to be that he "should not be forced to enter into such program to gain parole." Appellees respond that the fact that appellant has voluntarily refused to participate in the Polaris Program, for whatever reason, does not implicate the
The
In the case sub judice, appellant asserts in his Section 1983 complaint that participation in the Polaris Program is voluntary. Thus, based upon the foregoing, we find that appellant is not being compelled to admit to offenses in violation of his
Judgment affirmed.
PETER B. ABELE, J., concurs.
GREY, J., dissents.