704 N.E.2d 328 | Ohio Ct. App. | 1997
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. *433
Plaintiff is incarcerated at the Southern Ohio Correctional Facility ("S.O.C.F."). On December 20, 1996, plaintiff filed a complaint, styled "
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 could 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:
"1: Judge abused discretion, errored [sic] and committed crimes by dismissal; issue not res judicata, claim is stated and Wilkinson is liable by policies, acquiescence, failure of grevience/inspector [sic] system and where prior/pending related suits on him got no action or protection for Guess.
"2: Ruling is fraud-theft by deception of fees ect. [sic] record; ruling[.]"
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),
Turning first to the trial court's dismissal of plaintiffs 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 that 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),
However, each of plaintiff's four claims is brought pursuant to Section 1983, Title 42, U.S.Code. Section 1983 provides as follows:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
Section 1983 provides a remedy for violations of substantive rights created by the United States Constitution or federal statute. Barnier v. Szentmiklosi (E.D.Mich. 1983),
In the present case, plaintiff has failed to allege that the director authorized, approved, or knowingly acquiesced in any of the four constitutional violations which he claims to have suffered. Plaintiff's claims against the director rest solely upon the fact that the director has ultimate control over the S.O.C.F. employees who caused the alleged constitutional deprivations. Consequently, plaintiff's complaint fails to state a Section 1983 claim upon which relief can be granted. Plaintiff's two assignments of error are overruled.
Plaintiff's two assignments of error having been overruled, the judgment of the trial court is affirmed.
Judgment affirmed.
JOHN C. YOUNG and PETREE, JJ., concur.
DEAN STRAUSBAUGH, J., retired, of the Tenth Appellate District, was assigned to active duty under the authority of Section