IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN W. McQUEEN,

Plaintiff, 

vs. Civil Action 2:12-CV-166

Judge Smith

Magistrate Judge King

T. PYLES, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court on the motion to dismiss filed on

behalf of defendant T. Pyles. Defendant’s Motion to Dismiss, Doc. No.

20. For the reasons that follow, it is RECOMMENDED that Defendant’s

Motion to Dismiss be GRANTED and that the claims against defendant

Pyles be dismissed with prejudice and that the claims against

defendant R. Waugh, who has not yet been served with process, be

dismissed without prejudice.

I. MOTION TO DISMISS

Plaintiff, a state inmate, "brings this civil rights action after

having it dismissed in state court." Complaint, Doc. No. 1, at 5. 

Plaintiff specifically complains that defendants, two prison

officials, discriminated against plaintiff because of his religious

beliefs and race. The Complaint, Doc. No. 1, alleges that defendant

Pyles “persecut[ed]” plaintiff, “attempt[ed] to get [plaintiff] locked

up for praying” and “conduct[ed] himself toward [plaintiff], while

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leaving other inmates” alone. Id. at 5. The Complaint also alleges

that defendant Waugh discriminated against plaintiff based on race by

requiring plaintiff to serve two food service items while everyone

else was only required to serve one item. Id. at 5-6.

Attached to the Complaint is a copy of a decision of the Court of

Common Pleas for Madison County, Ohio, dated January 25, 2012, which

dismissed a civil action filed by plaintiff. Exhibit 1, attached to

Complaint, at 1-2. Although the actual complaint filed in the Madison

County action is not a part of the record in this case, the decision

of the Court of Common Pleas for Madison County quotes allegations

against the same prison officials that are nearly identical to the

allegations in the case presently before the Court. Id. Although

plaintiff alleges in this action that the prior state court action was

dismissed for failure to comply with certain procedural requirements,

see O.R.C. § 2969.25, the state court actually dismissed the action

for failure "to state a civil rights [§] 1983 claim with the

specificity required to withstand Civil Rule 12(B)(6) scrutiny." Id.

at 3. 

Defendant Pyles moves to dismiss plaintiff’s Complaint for

failure to state a claim upon which relief can be granted pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to

dismiss under Rule 12(b)(6) attacks the legal sufficiency of the

complaint. See Roth Steel Prods. v. Sharon Steel Co., 705 F.2d 134,

155 (6th Cir. 1983). In determining whether dismissal on this basis

is appropriate, a complaint must be construed in the light most

favorable to the plaintiff, and all well-pleaded facts must be

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accepted as true. See Bower v. Fed. Express Corp., 96 F.3d 200, 203

(6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F. Supp. 734, 738

(S.D. Ohio 1994). The United States Supreme Court has explained that

“once a claim has been stated adequately, it may be supported by

showing any set of facts consistent with the allegations in the

complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007). 

However, a plaintiff’s claim for relief “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Id. at 555. “Factual allegations must be enough

to raise a right to relief above the speculative level[.]” Id. 

Accordingly, a complaint must be dismissed if it does not plead

“enough facts to state a claim to relief that is plausible on its

face.” Id. at 570.

Defendant Pyles argues that plaintiff’s claim should be dismissed

because it is barred by the doctrine of res judicata. “‘If an

individual is precluded from litigating a suit in state court by the

traditional principles of res judicata, he is similarly precluded from

litigating the suit in federal court.’” ABS Indus., Inc. ex rel. ABS

Litigation Trust v. Fifth Third Bank, 333 Fed. Appx. 994, 998 (6th

Cir. 2009) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1537 (6th Cir.

1987). “Under Ohio law, ‘a valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out of

the transaction or occurrence that was the subject matter of the

previous action.’” Id. (quoting Grava v. Parkman Twp., 653 N.E.2d

226, 229 (Ohio 1995)). Ohio law specifies that res judicata, also

referred to as claim preclusion, is properly applied when the

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following four elements have been established:

(1) a prior final, valid decision on the merits by a court of

competent jurisdiction; (2) a second action involving the same

parties, or their privies, as the first; (3) a second action

raising claims that were or could have been litigated in the

first action; and (4) a second action arising out of the

transaction or occurrence that was the subject matter of the

previous action.

Hapgood v. City of Warren, 127 F.3d 490, 493 (6th Cir. 1997)) (quoting

Felder v. Cmty. Mut. Ins. Co., No. 96–3320, 1997 WL 160373, at *3–4

(6th Cir. Apr. 4, 1997)). 

Plaintiff previously initiated an action against defendants T.

Pyles and R. Waugh in the Court of Common Pleas for Madison County,

Ohio. Complaint, p 5; Exhibit attached to Complaint, p. 1. In that

action, plaintiff apparently asserted a § 1983 claim based on facts

nearly identical to those alleged in the Complaint. Compare

Complaint, pp. 5-6, with Exhibit attached to Complaint, pp. 1-3. The

state court entered a judgment of dismissal after determining that

plaintiff failed “to state a civil rights § 1983 claim with the

specificity required to withstand Civil Rule 12(B)(6) scrutiny.” 

Exhibit, attached to Complaint, p. 3. There is no dispute that the

current action involves the same parties, raises the same claims, and

arose out of the same occurrence as the prior state court action. 

There is also no dispute that a prior judgment, now presumably final,

was rendered in that action on January 25, 2012. The only issue in

dispute in this action is whether the January 25, 2012 judgment was a

resolution of the merits of the state court action. 

Plaintiff contends that the state court judgment was not a

resolution on the merits because it did not state that dismissal was

with prejudice. Plaintiff’s Response to Defendant’s Motion to

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Dismiss, Doc. No. 23, at 3-4. Under Ohio law, however, a dismissal,

other than for lack of jurisdiction or for failure to join a party

under Ohio Civ. R. 19 or 19.1, “operates as an adjudication upon the

merits unless the court, in its order for dismissal, otherwise

specifies.” Ohio Civ. R. 41(B)(3), (4). See also Reasoner v.

Columbus, No. 04AP-800, 2005 WL 289574, at ¶¶ 6-7 (10th Dist. Feb. 8,

2005); Customized Solutions, Inc. v. Yurchyk & Davis, CPA’s, Inc., No.

03 MA 38, 2003 WL 22120273, at ¶ 23 (7th Dist. Sept. 10, 2003) (“[I]f

the Civ. R. 12(B)(6) dismissal order fails to state that it is without

prejudice or that it is not on the merits, then the dismissal is

automatically categorized as a dismissal with prejudice or on the

merits.”). The judgment in the prior state action did not address the

issue of prejudice; therefore, under Ohio law the prior action was

dismissed with prejudice and is considered a judgment on the merits. 

Based on the foregoing, all the elements of claim preclusion have been

met and plaintiff cannot relitigate his claims in this Court.1

II. CLAIMS AGAINST DEFENDANT WAUGH

Service of process on defendant Waugh was returned unexecuted. 

Doc. No. 30. The Court would ordinarily order plaintiff to show cause

why the claims asserted against this defendant should not be dismissed

for failure to make timely service of process. See Fed. R. Civ. P.

4(m). However, in light of its conclusion, supra, that the action

cannot proceed in this Court, the Court concludes that to do so would

be an exercise in futility. Because the Court presently lacks

1

Defendant Pyles also argues that the specific factual allegations of

the Complaint filed in this action are insufficient. However, because the

Court concludes that plaintiff is foreclosed from litigating his claims in

this Court, the Court need not consider this argument.

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personal jurisdiction over defendant Waugh, however, the claims

against him must be dismissed without prejudice.

WHEREUPON, it is RECOMMENDED that Defendant’s Motion to Dismiss,

Doc. No. 20, be GRANTED, and that the claims asserted against

defendant Pyles be dismissed with prejudice but that the claims

asserted against defendant R. Waugh be dismissed without prejudice.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections

must be filed within fourteen (14) days after being served with a copy

thereof. Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

September 18, 2012 s/ Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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