UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOEY A. DUFFEY,

Plaintiff,

vs.

BOARD OF COUNTY 

COMMISSIONERS OF CLINTON 

COUNTY, OH, et al., 

Defendants.

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Case No. 1:18-cv-422

Judge Timothy S. Black

ORDER

This civil action is before the Court regarding Defendants Board of County 

Commissioners of Clinton County, Ohio and Clinton County Sherriff’s Office’s motion 

to dismiss (Doc. 5), as well as the parties’ responsive memoranda (Docs. 7, 9). Also 

before the Court is Plaintiff’s motion to strike or deny defendants’ motion to dismiss on 

procedural grounds; or, alternatively, to convert Defendants’ motion to dismiss to a 

motion for summary judgment (Doc. 8) and Defendants’ response (Doc. 9).

I. BACKGROUND

Plaintiff Joey A. Duffey, an individual who is deaf, brings this action against 

Defendants for allegedly failing to provide him with interpreter services during his 

detention at Clinton Count Jail. Plaintiff was booked into Clinton County Jail on June 

11, 2018 and was incarcerated when he initiated this action. (Doc. 1 at ¶¶ 1–2). Plaintiff 

claims that during his incarceration he was precluded from participating in institutional 

proceedings; effectively taking part in rehabilitative, education, or religious programs; 
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receiving adequate medical care, and communicating effectively with other within and 

outside the jail. (Id. at ¶ 3). Plaintiff claims that Defendants’ failure to allow effective 

communication with deaf prisoners violates Title II of the Americans with Disabilities 

Act, 42 U.S.C. §§ 12131–12166, and Section 504 of the Rehabilitation Act of 1973, 29 

U.S.C. § 794. (Id. at ¶ 5). Plaintiff also claims Defendants violated his Eighth 

Amendment right to be free from cruel and unusual punishment due to allegedly 

inadequate medical care provided by Defendants. (Id. at ¶¶ 69–76).

II. ANALYSIS

1) Motion to Convert Motion to Dismiss to Motion for Summary Judgment

Defendants claim that Plaintiff’s complaint fails because (i) Plaintiff failed to 

comply with the Prison Litigation Reform Act (“PLRA”), (ii) Plaintiff failed to allege a 

cognizable Eighth Amendment claim, and (3) Plaintiff’s claims for injunctive and 

declaratory relief are moot. Defendants’ motion to dismiss includes forty-nine (49) pages 

of exhibits related to Plaintiff’s failure to exhaust administrative remedies. (Doc. 5-1). 

Plaintiff argues that Defendants’ motion to dismiss relies entirely on evidence outside 

Plaintiff’s complaint. Therefore, Plaintiff moves to strike or deny Defendants’ motion to 

dismiss or convert Defendants’ motion to dismiss to a motion for summary judgment. 

(Doc. 8). 

First, Plaintiff moves to strike Defendants’ motion to dismiss because it includes 

matters outside of the pleadings. The Federal Rules of Civil Procedure do not provide for 

a motion to strike documents other than pleadings. See Fed. R. Civ. P. 12(f) (limited to 

striking pleadings or portions of pleadings). “Instead trial courts make use of their 
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inherent power to control their dockets, Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 

516 (6th Cir. 2003), when determining whether to strike documents or portions of 

documents.” Getachew v. Cent. Ohio Transit Auth., No. 2:11-cv-860, 2013 WL 819733, 

at *2 (S.D. Ohio Mar. 5, 2013). Here it is unnecessary to strike the materials attached to 

Defendants’ motion because the Court finds that Defendants’ motion to dismiss should be 

converted to a motion for summary judgment.

The Federal Rules of Civil Procedure provide that, where a party files a 12(b)(6) 

motion to dismiss and relies on matters outside of the pleadings, “the motion must be 

treated as one for summary judgment under Rule 56. All parties must be given 

reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. 

Civ. P. 12(d). Here, it is undisputed that Defendants’ motion relies on matters outside of 

the pleadings. Defendants note that courts are divided on whether a plaintiff’s failure to 

comply with a pre-suit administrative process should be decided as a motion to dismiss or 

motion for summary judgment. See Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) 

(finding that exhaustion of administrative remedies should be raised in a motion to 

dismiss); but see Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (noting that the 

Second, Third, Fifth, Seventh, and Ninth Circuits hold that summary judgment, as 

opposed to an unenumerated Rule 12(b) motion, is appropriate to decide administrative 

exhaustion). District courts within the Sixth Circuit have also found it appropriate to 

convert motions to dismiss to decide exhaustion into motions for summary judgment. 

See Perotti v. Medlin, 2009 WL 2424547, at *6 (N.D. Ohio Aug. 3, 2009). Here, the 

Court agrees with the majority of circuits and find that, because Defendants rely on 
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materials outside of Plaintiff’s complaint, its motion to dismiss regarding exhaustion

should be converted into a motion for summary judgment.1

Here, Plaintiff must be provided with an opportunity to present materials pertinent 

to Defendants’ motion. Fed. R. Civ. P. 12(d). In Albino, the Court found that 

“[e]xhaustion should be decided, if feasible, before reaching the merits of a prisoner’s 

claim. If discovery is appropriate, the district court may in its discretion limit discovery 

to evidence concerning exhaustion, leaving until later—if it becomes necessary—

discovery directed to the merits of the suit.” 747 F.3d at 1170. 

Accordingly, Plaintiff shall file a response to Defendants’ converted motion for 

summary judgment within 21 days of this Order with all materials pertinent to the 

motion. If Plaintiff believes that discovery concerning exhaustion is necessary, Plaintiff 

must file an affidavit or declaration pursuant to Fed. R. Civ. P 56(d) explaining why, “for 

specified reasons, it cannot present facts essential to justify its opposition.” Any such 

affidavit must be filed within 21 days of this Order.

2) Motion to Dismiss Eighth Amendment Claims

Defendants contend that even if the Court decides to convert its motion to dismiss 

concerning exhaustion into a motion for summary judgment, Plaintiff’s Eighth 

 1 Defendants’ motion also contends that Plaintiff’s claims for injunctive and declaratory relief 

are moot because the Plaintiff has been released from Clinton County Jail. See Goldsborough v. 

Carlson, 863 F.2d 48 (6th Cir. 1988) (“A prisoner’s claims for injunctive relief are mooted upon 

that prisoner’s release or transfer.”). However, Defendants rely on materials outside the 

complaint to establish that Plaintiff has been released from jail. (Doc. 5 at 6–7). Therefore, the 

Court will determine whether Plaintiff’s claims for injunctive and declaratory relief are mooted 

when it determines Defendants’ converted motion for summary judgment.
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Amendment claim should be dismissed without regard to any evidence outside the 

pleadings. The Court agrees.

A. Standard of Review

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the 

sufficiency of the complaint and permits dismissal of a complaint for “failure to state a 

claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a) 

requires that the complaint contain a “short and plain statement of the claim showing that 

the pleader is entitled to relief.” 

While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it 

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 

544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation 

of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555). 

In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a 

legal conclusion couched as a factual allegation[.]’” Twombly, 550 U.S. at 555 (citing 

Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough

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

Accordingly, “[t]o survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Iqbal, 556 U.S. at 678. A claim is plausible where a “plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’ 
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but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 

“[W]here the well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 

pleader is entitled to relief,’” and the case shall be dismissed. Id. (citing Fed. R. Civ. P. 

8(a)(2)). 

B. Analysis of Plaintiff’s Eighth Amendment Claims

The Eighth Amendment establishes that prison officials are obligated to provide 

medical care for incarcerated prisoners. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The 

Eighth Amendment is violated when prison officials are deliberately indifferent to serious 

medical needs of prisoners. Id. at 104. An Eighth Amendment violation for failing to 

provide medical care for incarcerated prisoners only occurs where the alleged deprivation 

is objectively “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 826 (1970).

A review of Plaintiff’s complaint fails to allege (i) that he had a serious medical 

need or (ii) that any of the Defendants were deliberately indifferent to that need. Plaintiff 

pleads that Defendants maintain a facility that denies deaf prisoners an effective means of 

communication with medical staff and health care providers. (Doc. 1 at ¶¶ 69–76). 

However, Plaintiff fails to allege that he actually had a serious medical need; at most he 

alleged that there was the potential he would suffer a serious medical need. Accordingly, 

Count Three of Plaintiff’s complaint, brought under the Eighth Amendment, fails as a 

matter of law and is dismissed.
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III. CONCLUSION

Accordingly, for the reasons outlined above:

1) Plaintiff’s motion (Doc. 8) is GRANTED in part and DENIED in part, as 

follows:

a. Plaintiff’s motion to strike Defendants’ motion to dismiss (Doc. 5) is 

DENIED;

b. Plaintiff’s motion to convert Defendants’ motion to dismiss related to 

PLRA exhaustion (Doc. 5) to a motion for summary judgment is 

GRANTED; and

i. Plaintiff shall file, within 21 days, a response to Defendants’ 

motion with all pertinent materials to the motion; or

ii. Plaintiff shall file, within 21 days, an affidavit or declaration, 

pursuant to Fed. R. Civ. P. 56(d), explaining why discovery 

related to exhaustion is required 

2) Defendants’ motion to dismiss (Doc. 5) is GRANTED in part with regard to 

Count III of Plaintiff’s complaint; i.e., Count III is DISMISSED. The 

remainder of Defendants’ motion to dismiss is converted into a motion for 

summary judgment.

IT IS SO ORDERED.

Date: 

Timothy S. Black

United States District Judge

1/29/19