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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
TIMOTHY L. COLEMAN,
Plaintiff-Appellant,
v.
DEPARTMENT OF
REHABILITATION AND CORRECTIONS, et al.,
Defendants-Appellees.
No. 01-3169
46 Fed. Appx. 765
August 28, 2002, Filed
NOTICE: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
PER CURIAM. Appellant Timothy L. Coleman, an inmate, appeals the
dismissal of his 42 U.S.C. § 1983 claims against Appellees Ohio Department of
Rehabilitation and Corrections (ODRC), the State of Ohio, Warden Ralph Coyle,
and four unnamed John or Jane Doe prison guards (collectively
"Appellees"), arising out of an alleged beating Coleman endured at
the hands of the John Doe prison guards during a prison riot on September 5,
1997.
The causes
against the ODRC and the State of Ohio were dismissed by the district court
under the Eleventh Amendment because state agencies cannot be sued for monetary
damages under § 1983. The
cause against Warden Ralph Coyle was dismissed
because Coleman provided no evidence Coyle had any direct involvement in or
knowledge of the alleged beatings, and respondeat superior claims are not
cognizable under § 1983. The causes against the John Does were dismissed as
untimely.
Coleman claims the following assignments of error. He alleges
his claims against the John Does are timely in light of the Ohio Savings
Clause, Ohio Rev. Code § 2305.19, which permits a claimant to re-file an action
dismissed other than on the merits within one year of dismissal if the action
had been "commenced or attempted to be commenced" prior to dismissal.
In regard to the ODRC and the State of Ohio, Coleman claims, although he is not
entitled to monetary relief, he should have been entitled to some sort of
injunctive relief preventing future constitutional violations by prison officials. n1
We find Coleman's
claims without merit. First, Coleman's claims are not revived by the Ohio
Savings Clause because his actions prior to dismissal do not constitute an
"attempt to commence." Second, his claims against Coyle are rejected
because respondeat superior claims are not cognizable under § 1983. Finally, no
injunctive relief is available against the ODRC and the State of Ohio because
Coleman has failed to allege an on-going unconstitutional policy that can be
enjoined. Accordingly, we hereby reject Coleman's contentions and affirm the
decision of the district court.
I.
Coleman is
an inmate at the Mansfield Correctional Institution in Mansfield, Ohio. On
September 5, 1997, a riot erupted, of which Coleman alleges he was not a
participant. At some point, while correctional officers were assuaging the
riot, Coleman claims he was severely beaten, without provocation, by up to four
prison guards, none of whose names are known to Coleman. Coleman sustained a
dislocated shoulder.
Coleman filed an informal complaint against the officers on
September 22, 1997, as required by Ohio Administrative Code § 5120-9-31. n2
Coleman then filed a formal
[*768] grievance on October 22,
1997. By all accounts, this grievance was never answered. After not receiving
an answer, Coleman refiled his grievance on November 22, 1998. This second
grievance was answered on November 24, 1998 by inspector Pricilla Rowe, and
denied as untimely pursuant to DRC § 203.01, which provides that prisoner
grievances must be filed within thirty days of the incident. Coleman appealed
the decision to the Chief Inspector on November 27, claiming the untimeliness
of the second grievance was due to prison officials' mishandling of his first
grievance. n3 Rowe's decision was affirmed on appeal by Assistant Chief
Inspector Antonio Lee. In upholding the decision, Lee stated there was no
record of Coleman's grievances from 1997, although the evidence in the record
now shows those grievances were filed.
Prior to the denial of his grievance appeal on December 31,
1998, Coleman had filed a complaint in the United States District Court on
September 4, 1998, naming as defendants the ODRC, the State of Ohio, Mansfield
Correctional Institution Warden Ralph Coyle, and four John Does, representing
the prison guards he claims had beat him. The complaint was voluntarily
dismissed on December 3, 1998, but Coleman re-filed the complaint on May 18,
1999, within the two-year Statute of Limitations.
During the
next year, Coleman failed to serve process on any of the defendants. On March 16, 2000, the district court issued
an order asking Coleman to show cause why the case should not be dismissed.
Coleman's attorney responded he had "inadvertently failed to serve"
the defendants, yet subsequently continued to do nothing in regard to this
case. In fact, service was not attempted on any of the defendants until late
July 2000. In the interim, the Appellees had filed a motion to dismiss for lack
of prosecution. The district court granted the motion and dismissed the case
without prejudice on August 14, 2000. Coleman re-filed the complaint on
September 11, 2000. Appellees again filed a motion to dismiss, alleging
Coleman's September 2000 complaint was well outside the two year Statute of
Limitations, considering the alleged assault had taken place in September 1997.
The district court judge granted the motion on December 21, 2000, and
subsequently denied Coleman's motion for reconsideration on January 2, 2001.
Coleman then timely filed an appeal to this Court.
II.
Coleman's
claims against the John Does were dismissed by the district court as untimely,
in violation of the two-year Statute of Limitations in Ohio for actions under 42
U.S.C. § 1983. Coleman now claims his
complaint was timely, in light of the Savings Clause of the Ohio Revised Code,
which provides:
In an action commenced, or attempted to be commenced, if in due time a
judgment for the plaintiff is reversed, or if the plaintiff fails otherwise
than upon the merits, and the time limited for the commencement of such action
at the date of reversal or failure has expired, [*769] the plaintiff
... may commence a new action within one year after such date.
Ohio Rev. Code § 2305.19.
Decisions of the district court granting a motion to dismiss are reviewed de
novo. See, e.g., Tropf v. Fidelity
Natl. Title Ins. Co., 289 F.3d 929, 936
(6th Cir. 2002); United States v. Mise, 240 F.3d 527, 529 (6th Cir. 2001); Patmon
v. Michigan Supreme Court, 224 F.3d 504, 508 (6th Cir. 2000).
In a § 1983 action in federal court, we apply the Statute of
Limitations of the relevant state. Wilson
v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). In
Ohio, there is a two-year statute of limitations for personal injury actions.
Ohio Rev. Code § 2305.10. When we use a state's Statute of Limitations, we also
use its procedural rules affecting that Statute of Limitations. West v.
Conrail, 481 U.S. 35, 39-40 n. 6, 95 L. Ed. 2d 32, 107 S. Ct. 1538 (1987).
Therefore, Coleman is correct that we are bound to consider the Ohio Savings
Statute.
In order to apply, the Ohio Savings Statute requires two things.
First, Coleman's claims must have been disposed of other than on the merits.
Second, the action must have been "commenced or attempted to be commenced."
Coleman's claims, dismissed for lack of prosecution, were expressly dismissed
without prejudice, and accordingly, otherwise than on the merits. So, the
question before us is whether the action was "commenced or attempted to be
commenced" prior to the dismissal.
The key to interpreting the Ohio Savings Statute is the meaning
of the word "commence." Under Ohio Rule of Civil Procedure 3(A),
"[a] civil action is commenced by filing a complaint with the court, if
service is obtained within one year from such filing upon a named defendant ...
or upon a defendant identified by a fictitious name whose name is later
corrected pursuant to Rule 15(D)." (emphasis added). In other words, an
action in Ohio is not commenced until
there is (1) a filed complaint and (2) service upon the defendant within one
year of the complaint. Here, it is uncontroverted Coleman did not
"commence" the action because he never served the John Does.
Accordingly, we must determine only whether Coleman "attempted" to
commence it.
We are not only bound by the state's procedural rules, but also
by the decisions of the Ohio Supreme Court to the extent they have already
determined the proper definition of an "attempt to commence." In Thomas
v. Freeman, 79 Ohio St. 3d 221, 680 N.E.2d 997 (Ohio 1997), the Ohio Supreme
Court found a plaintiff had "attempted to commence" an action where
he made repeated efforts to serve the named defendants via regular mail at the
defendants' last known address. The plaintiff was ultimately unable to effectuate
service, and his claims were dismissed for lack of prosecution and failure to
obtain service. The Ohio Court held the plaintiff's claims were saved by §
2305.19 and the plaintiff, therefore, had one year from the date of dismissal
to re-file his claim. While Thomas did not entirely define the scope of what is
attempted commencement, its language suggests a good faith attempt at serving a defendant satisfies the
"attempted commencement" requirements of the Savings Statute.
The only other relevant Ohio case is an unpublished decision of
the Ohio Court of Appeals, Mustric v. Penn Traffic Corp., 2000 Ohio App. LEXIS
4032, No. 00 AP-277, 2000 WL 1264526 (Ohio App. 10 Dist., Sept. 7, 2000). In
Mustric, the plaintiff attempted to serve two John Does named in a timely filed
complaint. The plaintiff determined the identities of the John Does after the
Statute of Limitations would have run, but
[*770] within a year of the filing
of the original complaint, and attempted to serve them via certified mail. Pursuant
to Ohio Rule of Civil Procedure 15(C), the amendment of the complaint to
contain the defendants' true names related back to the original filing, and the
action was timely, as it would have
been here had Coleman identified the John Does after the Statute of Limitations
had run but before the time for service had lapsed. The Ohio Appellate Court
determined this was not an "attempt to commence," however, because
Ohio Rule of Civ. Proc. 15(D) expressly requires all parties who were previously
unnamed be served personally, and not via the mail. The plaintiff in Mustric did not follow the rules of service, and the Court held
he, therefore, could not take advantage of the Savings Statute. Mustric, it
seems, extends Thomas' logic to invoke a type of fault requirement. That is,
after Mustric, a plaintiff can not invoke the Savings Statute if the reason the
action was dismissed was the plaintiff's failure to follow the correct
procedures. Contrary to the district court's opinion, Mustric does not stand
for the proposition that the Ohio Savings Statute prevents a plaintiff from
using a John Doe moniker in an action preserved by the Savings Clause.
Mustric's proposition is much simpler than that -- if the dismissal is due to
the plaintiff's own errors, then the plaintiff's action will not be saved.
Mustric, as an unpublished decision of the Ohio Court of
Appeals, is not decisive if we believe the Ohio Supreme Court would have ruled
otherwise. Where the state's highest court has not decided the issue before us,
we may "not disregard a decision of the state appellate court on point,
unless [we are] convinced by other persuasive data that the highest court of
the state would decide otherwise." Puckett v. Tennessee Eastman Co., 889
F.2d 1481, 1485 (6th Cir. 1989). While
neither Thomas nor Mustric is completely on point, each provides insight into
this issue. Mustric is persuasive for its view that a plaintiff whose case is
dismissed due to his own neglect cannot later take advantage of the Savings
Statute. This is especially helpful as a logical extension of Thomas, wherein
the Ohio Supreme Court held the Savings Statute can be invoked by a plaintiff
who followed the proper statutory service procedures, even if service
nonetheless failed. If this issue were presented, we believe the Ohio Supreme
Court would follow Mustric and adopt the perfectly logical rule that a
plaintiff cannot benefit from the Savings Statute where the dismissal was due
to the plaintiff's own neglect.
Under this
standard, we are charged then with the task of determining if Coleman's efforts
were nonetheless enough to qualify as an "attempt to commence."
Coleman filed his complaint on May 18, 1999. Subsequently, he did nothing in
furtherance of this case until at least May 23, 2000--over a year after the
filing of his complaint, and beyond the statutorily permitted time for service.
In other words, Coleman's first action regarding this case took place at a time
when the case easily could already have been dismissed for want of
service.
On July 20, 2000, Coleman
obtained summonses on the four John Does, and attempted to serve them, by their
fictitious names, via certified mail. Under Ohio Rule of Civil Procedure 15(D),
service on a fictitiously named defendant can only be made personally.
Therefore, we disregard Coleman's attempt at certified mail service as improper
and therefore not an "attempt to commence" under the Savings
Statute.
Coleman would also like us to
consider, as an "attempt to commence," his May 23, 2000 service of interrogatories upon the ODRC. It is
granted Coleman's method of
[*771] attempting to identify
the John Does was reasonable. Service of interrogatories upon another
defendant, who would have been the only party with knowledge of the John Does'
identities, is a proper vehicle of
discovery. However, Coleman's assertion that this constitutes an
"attempt at commencement" would be given more weight had he, first,
bothered to serve the ODRC prior to the interrogatories; and second, served the
interrogatories sooner. At this time, even though a year had passed, Coleman
had not yet served the ODRC (nor any other Defendant). A defendant that has not been served is not
yet a party to the action, and therefore not bound to comply with the
plaintiff's discovery attempts. Furthermore, even had the ODRC been bound to
answer the interrogatories, it had thirty days from May 23, 2000 in which to do
so, which, had they taken the full allotted time, would have been in late June
2000 -- well more than the 120 days for service given under the Federal Rules
and even more than the one year given for service in Ohio Civ. Rule of Proc.
3(A). So, even if Coleman's interrogatories had produced the true identities of
the John Does at that time, it would only have been by the grace of the
district court that the case had not already been dismissed. Therefore,
Coleman's less than minimal efforts cannot be said to be an "attempt to
commence" the action since his efforts, even if fruitful, would not have
been timely.
As a whole, the word "attempt" invokes a very low
standard. In effect, any overt act in pursuance of the litigation could be an
"attempt to commence." However, it is clear Coleman failed here to
reach any minimal standard whatsoever. In no way do Coleman's efforts approach
an "attempt to commence" the action in regard to these John Does. As
a matter of fact, Coleman did not even "attempt to commence" the
action in regard to the named defendants within a year. His first attempt at
their service, albeit a successful one, did not occur until July 26, 2000,
nineteen days before the case was dismissed, and well after the district
court's March "show cause" order.
Accordingly,
the Ohio Savings Statute does not apply to save Coleman's suit against the John
Does because Coleman simply never "commenced" it nor "attempted
to commence" it before it was dismissed. Since we can dismiss all of
Coleman's claims in regard to the John Does on other grounds, it is unnecessary
for us to address Appellees' argument that Coleman's cause should be barred
because he had not exhausted his administrative remedies in regard to the John
Does. n4 We affirm the decision of the district court and find Coleman's causes
of action against any John Does are barred by the Statute of Limitations.
III.
Next, Coleman
seeks to hold then Mansfield Warden Ralph Coyle responsible for the actions of
the John Doe prison guards. n5 However, Coleman does not allege [*772]
Coyle ever authorized, supervised, or acquiesced to any beatings that
might have taken place. Coleman's claim against Coyle is therefore one of
respondeat superior.
Respondeat superior claims are not cognizable under § 1983. See Monell v. Dept. of Social Servs. of New York, 436 U.S. 658,
691-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). For a supervisor to be liable,
he must have "encouraged the specific incident of misconduct or in some
other way directly participated in it." Bellamy v. Bradley, 729 F.2d 416,
421 (6th Cir. 1984). Therefore, absent any allegation of direct involvement or
encouragement by Coyle, any cause against him cannot stand under the statute.
Accordingly, the district court was correct
in dismissing Coleman's claim as to Coyle.
IV.
Coleman also seeks some ambiguous injunctive relief from the
remaining two named Appellees, the State of Ohio and the ODRC. n6 First,
Coleman finally concedes these named Appellees, as official branches of the
State of Ohio are immune to § 1983 suits for monetary damages under the
Eleventh Amendment to the Constitution. However, Coleman asserts these entities
are not immune from injunctive relief.
Coleman is vague about the kind of injunctive relief he is
seeking. Coleman asks this Court to order the State of Ohio or the ODRC to take
appropriate actions to punish the individuals involved. This is not the type of
injunctive relief this Court provides. The type of injunctive relief
permissible under the Eleventh Amendment is preventative, not punitive. That is,
this Court can grant injunctive relief only to prevent an impending harm.
See Edelman v. Jordan, 415 U.S. 651,
39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). Requiring the State to punish some
unnamed prison guards does not necessarily prevent any future harm, and
furthermore, such an order is not cognizable because it is likely violative of
the prison guards' Due Process protections.
Next, Coleman wants this Court to issue an injunctive order
making it clear such violations of prisoners' constitutional rights by
corrections officers cannot and will not be tolerated. How Coleman wants us to
make this clear is unknown. Apparently, Coleman wants an overbroad, blanket
injunction enjoining the State of Ohio and the ODRC from violating prisoners'
constitutional rights. An injunction serves as a judicial declaration that a specific policy or proposed plan of
action may be violative of the constitutional rights of others. See Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d
947, 88 S. Ct. 1942 (1968). Here, there is no policy to enjoin. There are no
regularly scheduled, state-approved, systematic beatings taking place. If there
were, perhaps we could enjoin the practice, but absent a deliberate policy, no
injunctive relief is available. See Los
Angeles v. Lyons, 461 U.S. 95, 103-04, 75 L. Ed. 2d 675, 103 S. Ct. 1660
(1983). A blanket statement disapproving of violations of prisoners' Eighth and
Fourteenth Amendment [*773] rights is cumulative of the Amendments
themselves and unnecessary. In any event, this request is a thinly veiled
attempt to ask this Court to exact some kind of punitive measures upon the
unnamed guards, which would "send a message" to the States not to
randomly impose unprovoked beatings on their inmates. We find this outside the scope
of this Court's jurisdiction and affirm the district court's decision denying
each of Coleman's requests for whatever form of injunctive relief he is seeking
in his brief.
V.
For the foregoing reasons, we affirm the decision of the District Court for the
Northern District of Ohio granting Appellees' Motion to Dismiss Coleman's third
complaint as to all defendants.
AFFIRMED.
n1 On appeal, Coleman does not raise any
specific assignment of error regarding the dismissal of his claim against
Warden Ralph Coyle.
n2 The inmate grievance procedure, binding
on all prisons in the State of Ohio, requires three steps. First, the inmate
must file an informal complaint. Second, he must file a grievance (or a
"notification of grievance"). Third, he may then appeal the
disposition of the grievance to the Chief Inspector. Ohio Admin. Code §
5120-9-31.
n3 The first grievance appears to have been
timely filed. Coleman asserted in his appeal to the Chief Inspector that he had
never received a response to this first grievance, which appears to be true
because there is none in the record. Moreover, when returned, his second
grievance was addressed to an Anthony Coleman. Coleman speculates this may have
happened to the first grievance too, had it been returned at all. Coleman,
therefore, claims his second grievance was untimely only because of the
incompetence of prison officials surrounding the first.
n4 Although used as a defense below also,
the district court never addressed this argument. The Appellees' argument is
that since Coleman's second grievance was not timely filed, he cannot be said
to have exhausted his administrative remedies. See Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997); Hartsfield
v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999). Appellees' argument would likely
fail, in light of the evidence that Coleman's first grievance was timely filed
and subsequently lost due to some sort of mishandling by prison officials.
However, since we can dismiss Coleman's allegations on other grounds, we need
not express an opinion regarding this argument.
n5 As of the time of appeal, Ralph Coyle is
no longer Warden at the Mansfield Correctional Institution.
n6 Since the dismissal of the causes
against Coyle, the ODRC, and the State of Ohio can be affirmed on other
grounds, it is unnecessary to address whether these claims were also untimely.
Each of these named defendants was properly and successfully served before
dismissal of the second complaint, albeit at a time beyond the time limit
granted for service under either the Ohio or Federal Rules of Civil Procedure.
Accordingly, since these Defendants were served before dismissal, it would
appear the Savings Clause would step in to save the claims against them. However,
we decline to address this issue and instead affirm the dismissal of these
Defendants on the grounds stated in this section.
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