720 N.E.2d 571 | Ohio Ct. App. | 1998
Appellant is allegedly a transsexual suffering from gender dysphoria, a psychological gender identity disorder. See Meriwether v. Faulkner (C.A. 7, 1987),
On December 16, 1993, appellant filed a complaint alleging numerous civil rights violations under the
On November 22, 1996, appellees moved for summary judgment on the remainder of appellant's claims. In response, appellant filed numerous memoranda which included twenty-four different declarations. Appellees filed a consolidated reply which, inter alia, moved to strike twenty-two of the declarations as unsworn in the presence of a notary. In November 1997, the trial court granted the motion to strike and summary judgment in favor of appellees. On December 15, 1997, appellant filed a timely notice of appeal and presents five assignments of error for our review:
Assignment of Error No. 1:
"The trial court erred in striking the affidavits the appellant submitted in opposition to the summary judgment motion." *509
Assignment of Error No. 2:
"The trial court erred in (1) not giving the appellant any warning that only notarized affidavits would be accepted and (2) by failing to consider any alternative means."
Assignment of Error No. 3:
"The trial court erred in failing to consider appellant's verified complaint as evidence in opposition to the summary judgment motion."
Assignment of Error No. 4:
"The trial court erred in finding that the appellant's religious freedom claim was `res judicata'."
Assignment of Error No. 5:
"The trial court erred in dismissing the appellant's `privacy' claims."
Appellant's first and second assignments of error address similar legal issues and will be addressed together. In the first assignment of error, appellant argues that the trial court erred by striking twenty-two unnotarized declarations from appellant's responses to appellees' motion for summary judgment. In the second assignment of error, appellant claims that the trial court did not give notice that unnotarized declarations would not be considered, and/or provide alternative means of receiving the testimony contained in the unsworn declarations.
The Supreme Court of Ohio has addressed the issue directly. See In re Disqualification of Porknoy (1992),
In the third assignment of error, appellant alleges that the trial court failed to consider appellant's verified complaint before granting appellees' summary judgment. We disagree.
Appellant is allegedly a transsexual and has been previously diagnosed with that psychological condition. However, appellant never supplied the trial *510 court with an affidavit or any other evidence from a qualified physician confirming these allegations. The simple fact is appellant is unqualified to reach a medical and/or psychological diagnosis about gender identity disorder or any other medical and/or psychological condition. Accordingly, the third assignment of error is overruled.
In the fourth assignment of error, appellant claims that the trial court erred in finding appellant's "religious freedom" claim to be barred by res judicata. The supplemental complaint states that appellant purports to be of Native American descent and contends that appellees' insistence upon short hair violates appellant's religious beliefs. In dismissing this claim upon summary judgment, the trial court stated that the claim could not proceed because (1) the Religious Freedom Restoration Act of 1993, Section 2000bb et seq., Title 42, U.S. Code ("RFRA") was declared unconstitutional, and (2) this issue was previously decided in a similar case concerning appellant, Pollock v. Marshall (C.A. 6, 1988),
RFRA has been declared unconstitutional by the United States Supreme Court. City of Boerne v. Flores (1997), U.S.,
Aside from RFRA, appellant insists that the trial court erred by deciding appellant's religious freedom claim on the basis of res judicata. However, we need not address this issue because the trial court's decision never mentions res judicata, but merely cites the Sixth Circuit's Pollock decision as the precedent for its legal ruling.3 Simply, a state can regulate prisoners' hair length because such regulations are reasonably related to legitimate penological purposes. O'Lone v. Estate of Shabazz (1987),
In the fifth assignment of error, appellant argues that the trial court erred by dismissing appellant's privacy claims pursuant to Civ. R. 12(B)(6), "failure to state a claim upon which relief can be granted." We review the trial court's decision to dismiss a claim pursuant to Civ. R. 12(B)(6) de novo. Bell v. Horton (1995),
Appellant's privacy claims allege violations of appellant's federal constitutional rights under the
The trial court dismissed claims three through seven pursuant to Civ. R. 12(B)(6) and stated "[appellant] has forfeited the right of privacy in the cell" and cited Hudson v. Palmer (1984),
In Hudson, the United States Supreme Court held that "the
In this case, appellant is asking for
Further, we conclude that appellant's claims of lack of privacy do not constitute cruel and unusual punishment under the
Judgment affirmed.
POWELL, P.J., and WALSH, J., concur.