Pough v. DeWine

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LANCE POUGH, : Case No. 2:21-cv-00880

:

Plaintiff, : District Judge Michael H. Watson

: Magistrate Judge Caroline H. Gentry

vs. :

:

MIKE DEWINE, et al.,

:

Defendants. :

REPORT AND RECOMMENDATIONS

Plaintiff, an Ohio inmate proceeding in forma pauperis and without the assistance

of counsel, filed this civil rights action under 42 U.S.C. § 1983. Plaintiff alleges that

members of the Ohio Parole Board impermissibly used his race as a factor when they

denied his application for parole and imposed a ten-year waiting period before he can

apply again, in violation of the Equal Protection and Due Process Clauses of the

Fourteenth Amendment to the United States Constitution. (ECF No. 20.)

This matter has been referred to the undersigned Magistrate Judge to issue a

Report and Recommendations on Plaintiff’s Motions to Strike Affirmative Defenses. In

his first Motion (ECF No. 66) Plaintiff seeks to strike ten defenses in Defendant

Rauschenberg’s Answer (ECF No. 56). In his second Motion (ECF No. 72), Plaintiff

seeks to strike ten defenses in Defendant Thalheimer’s Answer (ECF No. 59-1 & 97).1

1 Plaintiff directed his Motion to Strike toward the proposed answer attached to Defendant Thalheimer’s Motion for

Leave To File Answer Instanter (ECF No. 59-1). Although the Court granted the Motion for Leave by notation order

on July 22, 2022, the Clerk did not file the Answer until February 8, 2023 (ECF No. 97).

A. Recommendation To Deny Plaintiff’s Motions To Strike Nine

Affirmative Defenses As Moot

This Court previously granted a nearly-identical Motion to Strike Affirmative

Defenses (ECF No. 44) that Plaintiff filed with respect to another Answer in this case.

See ECF No. 62 (Report and Recommendations by Gentry, M.J.), adopted by ECF No. 64

(Order by Watson, D.J.). In recognition of that fact, Defendants Rauschenberg and

Thalheimer voluntarily withdrew the nine affirmative defenses that were stricken from

their co-Defendants’ Answer. (ECF No. 69.) Therefore, to the extent that Plaintiff’s

pending Motions to Strike address these nine affirmative defenses, the undersigned

RECOMMENDS that the Motions to Strike be DENIED as moot.

B. Recommendation to Grant Plaintiff’s Motions To Strike The Tenth

Affirmative Defense

In the pending Motions to Strike, unlike in his prior Motion to Strike, Plaintiff also

seeks an order striking the following affirmative defense from both Answers:

42 U.S.C. § 1997e(a) demands dismissal of Plaintiff’s Second

Amended Complaint because he failed to exhaust available

administrative remedies with regard to all claims against

Defendant raised in the Second Amended Complaint.

(ECF No. 56 at 3, PageID 497; ECF No. 97 at 3, PageID 989.) Plaintiff argues that there

is no exhaustion requirement for constitutional challenges to parole board decisions.

(ECF No. 66 at 6, PageID 609.) Defendants have not addressed this affirmative defense,

or Plaintiff’s challenge to it, in their Response (ECF No. 69).

For the reasons set forth below, the undersigned RECOMMENDS that Plaintiff’s

Motions to Strike be GRANTED with respect to this tenth affirmative defense.

1. Legal standard

Although Defendants bear the burden of proving their affirmative defenses, they

are not required to describe facts supporting those affirmative defenses in their Answers.

Instead, “[a]n affirmative defense may be pleaded in general terms and will be held to be

sufficient … as long as it gives plaintiff fair notice of the nature of the defense.”

Lawrence v. Chabot, 182 F. App’x 442, 456 (6th Cir. 2006) (quoting 5 Wright & Miller,

Federal Practice and Procedure § 1274)).

Nevertheless, Federal Rule of Civil Procedure 12(f) does allow the Court to strike

insufficient defenses from pleadings. The purpose of the Rule is to allow parties to “avoid

the expenditure of time and money that must arise from litigating spurious issues by

dispensing with” them early in the case. Kennedy v. City of Cleveland, 797 F.2d 297, 305

(6th Cir. 1986) (internal quotations and citation omitted). This Court should strike an

affirmative defense where “it appears to a certainty that plaintiffs would succeed despite

any state of the facts which could be proved in support of the defense and are inferable

from the pleadings.” Operating Eng’rs Local 324 Health Care Plan, 783 F.3d 1045, 1050

(6th Cir. 2015) (internal quotations and citation omitted). This Court should also strike

affirmative defenses that lack merit as a matter of law. See, e.g., id. at 1055 (holding that

the district court should have granted a motion to strike a legally deficient affirmative

defense); Hemlock Semiconductor Ops., LLC v. SolarWorld Indus. Sachsen GmbH, 867

F.3d 692, 697-98 (6th Cir. 2017) (affirming decision to strike affirmative defenses that

were not legally viable).

2. Analysis

The challenged affirmative defense asserts that Plaintiff’s claims should be

dismissed for failing to exhaust his administrative remedies as required by the Prison

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. (ECF No. 56 at 3, PageID 497; ECF

No. 97 at 3, PageID 989.) The PLRA bars prisoners from filing federal lawsuits under 42

U.S.C. § 1983 “with respect to prison conditions . . . until such administrative remedies

as are available are exhausted.” 42 U.S.C. § 1997e(a).

This affirmative defense lacks merit for two reasons. First, Plaintiff’s claims

challenge the constitutionality of Defendants’ decisions relating to parole, not prison

conditions. Second, there are no administrative remedies available to challenge decisions

made by the Ohio Parole Board. See Ohio Admin. Code § 5120-9-31(B) (“[M]atters that

are not grievable include complaints related to . . . decisions of the adult parole

authority”), cited in Dotson v. Wilkinson, No. 3:00-cv-7303, 2006 U.S. Dist. LEXIS

104798, *7-8 (N.D. Ohio Apr. 27, 2006) (holding that Ohio plaintiffs challenging the

constitutionality of parole decisions are not required to exhaust administrative remedies).

Instead, Ohio prisoners who seek to challenge the constitutionality of parole decisions

may file declaratory judgment actions in state court. State ex rel. Adkins v. Capots, 46

Ohio St. 3d 187, 188, 546 N.E.2d 412 (1989). For both reasons, the PLRA does not

require Plaintiff to exhaust administrative remedies prior to filing this lawsuit.

Accordingly, the undersigned concludes that Plaintiff’s Motions to Strike this

affirmative defense are well-taken, and RECOMMENDS that they be GRANTED.

C. Conclusion

In sum, the undersigned RECOMMENDS that the Plaintiffs’ Motions to Strike

Affirmative Defenses (ECF Nos. 66 & 72) be GRANTED IN PART and DENIED IN

PART.

The Motions are recommended to be GRANTED to the extent that they seek to

strike the following affirmative defense from the Answers of Defendant Rauschenberg

(ECF No. 56) and Defendant Thalheimer (ECF No. 97): “42 U.S.C. § 1997e(a) demands

dismissal of Plaintiff’s Second Amended Complaint because he failed to exhaust

available administrative remedies with regard to all claims against Defendant raised in

the Second Amended Complaint.”

The Motions are recommended to be DENIED as moot in all other respects.

IT IS SO RECOMMENDED.

/s/ Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to the proposed findings and recommendations within FOURTEEN days after

being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),

this period is extended to SEVENTEEN days if this Report is being served by one of the

methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F). Such objections shall

specify the portions of the Report objected to and shall be accompanied by a

memorandum of law in support of the objections. If the Report and Recommendation is

based in whole or in part upon matters occurring of record at an oral hearing, the

objecting party shall promptly arrange for the transcription of the record, or such portions

of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s

objections within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,

949-50 (6th Cir. 1981).