[Cite as Freeman v. Mohr, 2013-Ohio-2238.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

DWIGHT FREEMAN (#471-218), : 

 : 

 Plaintiff-Appellant, : Case No. 11CA3461 

 : 

 vs. : 

 : 

GARY C. MOHR, DIRECTOR : DECISION AND JUDGMENT 

OHIO DEPT. OF REHAB. & : ENTRY

CORR., et al. : 

 : 

 Defendants-Appellees. : Released: 05/01/13 

_____________________________________________________________ 

APPEARANCES:

Dwight Freeman, Youngstown, Ohio, Appellant, pro se. 

Michael DeWine, Ohio Attorney General, and Debra Gorrell Wehrle, 

Assistant Attorney General, Columbus, Ohio, for Appellees. 

_____________________________________________________________ 

 

McFarland, P.J. 

{¶1} Dwight Freeman, appeals the decision of the trial court 

dismissing his complaint against Appellees, Gary Mohr, the director of the 

Department of Rehabilitations and Corrections, Warden Morgan, the warden 

at Southern Ohio Correctional Facility, and correctional officers Burk, 

Miller and Wiget, pursuant to Civ.R. 12(B)(1) based upon lack of 

jurisdiction, and also Civ.R. 12(B)(6) for failure to state a claim upon which 

relief can be granted. On appeal, Freeman (Appellant herein) questions 
Scioto App. No. 11CA3461 2

whether 1) the common pleas court properly determined that Appellant’s 

complaint failed to state a claim upon which relief may be granted 

“inasmuch” as Appellant failed to exhaust mandatory administrative 

remedies and failed to identify previous case dismissals; and 2) whether the 

common pleas court lacked subject matter jurisdiction. 

{¶2} In light of our determination that the trial court properly 

concluded it lacked subject matter jurisdiction over Appellant’s state law 

claims, Appellant’s second assignment of error is overruled. Further, 

because we conclude that the trial court properly determined Appellant 

failed to comply with R.C. 2969.25 and 2969.26 in filing his complaint, 

Appellant’s remaining claims were properly dismissed as well. Thus, 

Appellant’s first assignment of error is also overruled. Accordingly, the 

decision of the trial court is affirmed. 

FACTS 

{¶3} On June 14, 2011, Appellant filed a complaint against, 

Appellees, Gary Mohr, the director of the Department of Rehabilitation and 

Correction, Warden Morgan, the warden at Southern Ohio Correctional 

Facility where Appellant was, at one time, incarcerated, and correctional 

officers Burk, Miller, and Wiget, as well as several other John Doe 

employees of the correctional facility. The complaint alleged several civil 
Scioto App. No. 11CA3461 3

rights violations under the Ohio Constitution and 42 U.S.C. § 1983, as well 

as state law claims of assault and battery, refusal to provide proper medical 

treatment, dereliction of duty in violation of R.C. 2921.44, and failure to 

train and discipline employees. The complaint further requested 

compensatory and punitive damages. 

{¶4} Appellant’s complaint stemmed from allegations of events that 

allegedly occurred on March 11, 2011. Specifically, Appellant alleged that 

when he was being escorted to the medical department for chest pain, he was 

physically assaulted by officers Burk, Miller and Wiget. Appellant alleged 

that the officers physically assaulted him causing injury to his stomach, 

shoulder, arm, neck, face and head. Appellant alleged that the officers also 

made racial slurs, used chemical mace on him, all while Appellant was in 

restraints, and then denied Appellant medical treatment for twelve days. 

Appellant claims that the officers were, at all times, acting under of state 

law. 

{¶5} After seeking several extensions in which to file an answer to 

the complaint, Appellees instead filed a motion to dismiss on August 5, 

2011. Appellees’ motion to dismiss requested that Appellant’s complaint be 

dismissed under Civ.R. 12(B)(1) for lack of subject matter jurisdiction, and 

Civ.R. 12(B)(6) for failure to state a claim upon which relief may be 
Scioto App. No. 11CA3461 4

granted, as well as based upon Appellant’s failure to comply with 

R.C. 2969.25 and R.C. 2969.26 in filing his complaint.1 In response to 

Appellees’ motion, Appellant filed a memorandum in opposition on August 

15, 2011, seeking to cure the deficiencies pointed out in Appellees’ motion. 

For instance, Appellant attached to his memorandum a document purporting 

to be an affidavit stating he had exhausted his administrative remedies and 

also listing all of his prior civil actions brought against government entities 

or employees. Appellees filed a reply memorandum that Appellant’s 

purported affidavit was invalid because it was not properly notarized. 

{¶6} Subsequently, on November 4, 2011, the trial court issued an 

entry granting Appellees’ motion to dismiss. In its decision, the trial court 

reasoned it lacked subject matter jurisdiction pursuant to Civ.R. 12(B)(1), 

and that pursuant to Civ.R. 12(B)(6), Appellant’s complaint failed to state a 

claim upon which relief could be granted “inasmuch” as Appellant “has 

failed to both exhaust mandatory remedies and has failed to identify 

previous case dismissals before filing this action, as mandated under Revised 

Code Sections 2969.25 and 2969.26.” It is from this entry that Appellant 

 

1

 R.C. 2969.25 requires that an inmate, at the time he commences a civil action or appeal against a 

government entity or employee, file with the court “an affidavit that contains a description of each civil 

action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal 

court.” R.C. 2969.26 governs the prison grievance system and requires that an inmate, upon commencing a 

civil action or appeal against a government entity or employee and if that action is subject to the grievance 

system for state correctional institutions, file an affidavit with the court “stating that the grievance was filed 

and the date on which the inmate received the decision regarding the grievance,” as well as “[a] copy of 

any written decision regarding the grievance from the grievance system.” 
Scioto App. No. 11CA3461 5

now brings his appeal, setting forth the following assignments of error for 

our review. 

ASSIGNMENTS OF ERROR 

I. WHETHER THE COMMON PLEAS COURT PROPERLY 

DETERMINED THAT APPELLANT’S COMPLAINT FAILED 

TO STATE A CLAIM UPON WHICH RELIEF MAY BE 

GRANTED INASMUCH AS APPELLANT FAILED TO 

EXHAUST MANDATORY ADMINISTRATIVE REMEDIES 

AND FAILED TO IDENTIFY PREVIOUS CASES. 

II. WHETHER THE COMMON PLEAS COURT LACKS SUBJECT 

MATTER JURISDICION.” 

ASSIGNMENT OF ERROR II 

{¶7} For ease of analysis, we address Appellant’s assignments of 

error out of order. In his second assignment of error, Appellant contends 

that the trial court erred in dismissing his complaint pursuant to Civ.R. 

12(B)(1) based upon lack of subject matter jurisdiction. Appellant presents 

no argument or citation to authority in support of this assignment of error, 

but instead simply concludes that the common pleas court did not lack 

jurisdiction over his “excessive force” and “deliberate indifference” claim. 

Appellees counter by arguing that Appellees are entitled to immunity on all 

state law claims and that pursuant to R.C. 2743.02(F), the Ohio Court of 

Claims is vested with exclusive, original jurisdiction to decide the question 

of immunity. As such, Appellees contend that the common pleas court 
Scioto App. No. 11CA3461 6

lacked subject matter jurisdiction over Appellant’s state law claims. Based 

upon the following reasoning, we agree with Appellees. 

{¶8} The legal standard for deciding a Civ.R. 12(B)(1) motion to 

dismiss for lack of subject-matter jurisdiction is “whether any cause of 

action cognizable by the forum has been raised in the complaint.” State ex 

rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989) (per 

curiam). A determination of whether a court has subject-matter jurisdiction 

involves a question of law that we review de novo. Roll v. Edwards, 156 

Ohio App.3d 227, 2004-Ohio-767, 805 N.E.2d 162, ¶ 15; citing Shockey v. 

Fouty, 106 Ohio App.3d 420, 424, 666 N.E.2d 304 (4th Dist. 1995). 

{¶9} Under Section 16, Article I of the Ohio Constitution, “[s]uits 

may be brought against the state, in such courts and in such manner, as may 

be provided by law.” R.C. 2743.02(A)(1) provides that “[t]he state hereby 

waives its immunity from liability * * * and consents to be sued, and have 

its liability determined, in the court of claims created in this chapter in 

accordance with the same rules of law applicable to suits between private 

parties * * *.” Moreover, R.C. 2743.03(A)(1) provides that the Court of 

Claims “has exclusive, original jurisdiction of all civil actions against the 

state permitted by the waiver of immunity contained in section 2743.02 of 
Scioto App. No. 11CA3461 7

the Revised Code* * *.” The term “state” includes “all departments” of the 

state. R.C. 2743.01(A). 

{¶10} As set forth above, Appellant’s complaint alleged several state 

law claims, and, in conjunction therewith, sought compensatory and punitive 

damages. As this Court has previously recognized, “ ‘[i]f a cause of action 

involves a civil suit for money damages against the state, the Court of 

Claims has exclusive, original jurisdiction even when ancillary relief-such as 

an injunction or declaratory judgment-is sought in the complaint.’ ” Parsons 

v. Dept. of Youth Services, 4th Dist. No. 09CA3302, 2010-Ohio-284, ¶ 10; 

quoting State ex rel. Blackwell v. Crawford, 106 Ohio St.3d 447, 2005-Ohio5124, 835 N.E.2d 1232, ¶ 20. 

{¶11} Here, Appellant failed to first file his complaint in the Ohio 

Court of Claims. “Under R.C. 2743.02(F), the Court of Claims has 

exclusive, original jurisdiction to determine whether a state officer or 

employee is entitled to immunity under R.C. 9.86.” Parsons at ¶ 12. Thus, 

the trial court did not err in concluding it was without jurisdiction to 

consider Appellant’s state law claims, and as such, it properly dismissed that 

portion of Appellant’s complaint pursuant to Civ.R. 12(B)(1). Accordingly, 

Appellant’s second assignment of error is overruled. 
Scioto App. No. 11CA3461 8

ASSIGNMENT OF ERROR I 

{¶12} In his first assignment of error, Appellant contends that the 

trial court erred in dismissing his complaint under Civ.R. 12(B)(6) for failure 

to state a claim upon which relief may be granted, “inasmuch” as Appellant 

failed to exhaust mandatory administrative remedies and failed to identify 

previous case dismissals. Much like his second assignment of error, 

Appellant simply concludes that there was no need for him to attach this 

information to his original complaint, and states that all of the required 

documentation was filed as an attachment to his memorandum in opposition 

to Appellees’ motion to dismiss. 

{¶13} Appellees contend, on the contrary, that compliance with the 

filing requirements of R.C. 2969.25 and 2969.26 was mandatory at the time 

of filing, and that even if it was not, Appellant’s attempt to cure the 

deficiency by attaching the documents to his memorandum in opposition 

failed because the document did not contain a valid notary. Appellees also 

contend that the trial court correctly dismissed Appellant’s remaining claims 

under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be 

granted with regard to Director Mohr and Warden Morgan, to the extent that 

the claims were based upon the doctrine of respondeat superior, arguing that 
Scioto App. No. 11CA3461 9

there is no liability on a vicarious liability or respondeat superior theory 

under 42 U.S.C. § 1983 for failure to act. 

{¶14} As this Court previously noted in Warwick v. 

DeWitt, 4th Dist. No. 01CA2613, 2002 WL 59667, *2: 

“42 U.S.C.S § 1997e(a) states: No action shall be brought with 

respect to prison conditions under section 1983 of this title, or 

any other Federal law, by a prisoner confined in any jail, prison, 

or other correctional facility until such administrative remedies 

as are available are exhausted. (Emphasis added).” 

As mentioned above, R.C. 2969.26 provides for a grievance procedure that 

inmates are required to follow when initiating a civil action in court, which 

requires that an inmate shall file with the court: 

“(1) An affidavit stating that the grievance was filed and the 

date on which the inmate received the decision regarding the 

grievance. 

(2) A copy of any written decision regarding the grievance from 

the grievance system. See R.C. 2969.26(A)(1) and (2).” See 

also Warwick at *2. 

{¶15} Additionally, as previously noted above, R.C. 2969.25 

provides in section (A) that: 
Scioto App. No. 11CA3461 10

“At the time that an inmate commences a civil action or appeal 

against a government entity or employee, the inmate shall file 

with the court an affidavit that contains a description of each 

civil action or appeal of a civil action that the inmate has filed 

in the previous five years in any state or federal court.” 

As in Warwick, Appellant failed to satisfy the requirements of R.C. 

2969.26(A) in initially filing his complaint. Appellant likewise failed to file 

an affidavit setting forth his cases in the previous five years, as required by 

R.C. 2969.25(A). 

{¶16} Although Appellant attempted to cure these deficiencies by 

attaching a purported affidavit to his later filed memorandum in opposition 

to Appellees’ motion to dismiss, the purported affidavit lacked a valid 

notarial seal. As such, the affidavit itself was invalid. See State ex rel. 

Hightower v. Russo, 8th Dist. No. 82321, 2003-Ohio-3679, ¶ 5 (stating that 

an affidavit lacking a notary fails to comply with the requirements of R.C. 

2319.01 through 2319.04.) R.C. 2319.02 defines an affidavit as “a written 

declaration under oath, made without notice to the adverse party.” 

{¶17} Further, as noted by the Eleventh District in State ex rel. 

Trawick v. Trumbull Corr. Inst., 11th Dist. No. 2012-T-0071, 2012-Ohio5839, ¶ 15: 
Scioto App. No. 11CA3461 11

“The Ohio Supreme Court has maintained, with ‘longstanding 

insistence,’ that ‘only a written declaration made under oath 

before a proper officer qualifies as an “affidavit.” ’ Toledo Bar 

Assn. v. Neller, 102 Ohio St.3d 1234, 2004-Ohio-2895, 809 

N.E.2d 1152, ¶ 24. ‘Notaries public are * * * the persons who 

most often administer the oaths that appear on affidavits.’ Id. at 

¶ 11.” 

{¶18} In light of Appellant’s failure to comply with the mandatory 

filing requirements of R.C. 2969.25 and 2969.26, we conclude that the trial 

court properly dismissed Appellant’s remaining claims. Martin v. Ohio 

Dept. of Rehabilitation and Correction, 140 Ohio App.3d 831, 836, 749 

N.E.2d 787, (4th Dist. 2001) ( finding that “exhaustion of administrative 

remedies is a requirement in a prisoner’s Section 1983 claim that must be 

specifically averred in the complaint, and that failure to do so renders the 

complaint subject to dismissal. Civ.R. 9(C).”).2

 Further, we conclude that 

the trial court’s dismissal of Appellant’s remaining claims was appropriate, 

without resort to the application of Civ.R. 12(B)(6). See Semenchuck v. 

Ohio Dept. of Rehabilitation and Correction, 10th Dist. No., 10AP-19, 2010-

Ohio-5551, ¶ 28 (“Compliance with R.C. 2969.26 is mandatory and the 

 

2

 Civ.R. 9(C) addresses conditions precedent when pleading special matters. 
Scioto App. No. 11CA3461 12

failure to satisfy this statutory requirement is grounds for dismissal.”) 

(Internal citations omitted); State ex rel. Trawick v. Trumbull Corr. Inst., 

supra, at ¶ 14; quoting State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 

2003-Ohio-2262, 788 N.E.2d 634, ¶ 5 (“The requirements of R.C. 2969.25 

are mandatory, and failure to comply with them subjects an inmate's action 

to dismissal.”). 

{¶19} Further, although Appellees argue that the claims against 

Director Mohr and Warden Morgan that were based upon the theory of 

respondeat superior were properly dismissed in accordance with Civ.R. 

12(B)(6), a review of the trial court’s entry indicates that it did not reach its 

decision on this basis, but rather hinged its decision on Appellant’s failure to 

comply with the mandatory statutory filing requirements. As such, we see 

no need to address this additional issue raised by Appellees on appeal. Thus, 

Appellant’s first assignment of error is overruled. 

{¶20} Having failed to find any merit in the assignments of error 

raised by Appellant, the decision of the trial court is affirmed. 

 JUDGMENT AFFIRMED.
Scioto App. No. 11CA3461 13

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and costs herein 

be taxed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Scioto County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 Exceptions. 

Harsha, J. & Hoover, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: ____________________ 

 Matthew W. McFarland 

 Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.