State ex rel. Cartwright v. Ohio Adult Parole Bd., 20AP-62

Decision Date23 March 2021
Docket NumberNo. 20AP-62,20AP-62
Citation2021 Ohio 923
PartiesState ex rel. Dana Cartwright, Relator, v. Ohio Adult Parole Board, Respondent.
CourtOhio Court of Appeals



On brief: Dana Cartwright, pro se.

On brief: Dave Yost, Attorney General, and George Horvath, for respondent.



{¶ 1} In this original action, relator, Dana Cartwright, requests a writ of mandamus ordering respondent, Ohio Adult Parole Revocation Hearing Committee, a subdivision of Ohio Department of Rehabilitation and Correction ("respondent"), to vacate the results of a previous parole revocation hearing that resulted in revocation of parole for relator and to grant him a new revocation. In the alternative, relator requests a writ ordering respondent to place relator back on parole under the conditions governing his status prior to revocation. Respondent filed a motion to dismiss for: (1) failure to state a claim, and (2) failure to comply with inmate procedural filing requirements under R.C. 2969.25(C).

{¶ 2} Relator made two claims for relief in his complaint in mandamus. First, relator claims respondent's decision to revoke parole is void and an abuse of discretion where relator was never given adequate notice of the alleged violation against him. Second, relator claims respondent's decision to revoke parole was based on insufficient evidence.

{¶ 3} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate finds relator's inmate account statement is compliant with R.C. 2969.25(C)(1);1 however, the magistrate finds relator has the ability to pay filing fees in this matter.2 Nevertheless, the magistrate recommends this court grant respondent's motion to dismiss on the grounds of failure to state a claim because he has no clear legal right to a new parole hearing or reinstatement of his prior terms of parole.

I. Relator's Objection

{¶ 4} Relator timely filed an objection to the magistrate's recommendation to dismiss. Relator objects to the magistrate's conclusion that the complaint for mandamus fails to state a claim upon which relief may be granted. In support, relator argues: (1) the standard for reviewing motions to dismiss for failure to state a claim is governed by Civ.R. 12(C); his motion must be considered on the pleadings alone; and inferences should be construed in his favor that he was not given adequate notice of the allegation of parole violation against him; (2) respondent was required to cite to a specific state statute alleged to be violated; the general allegation that he violated "Parole Rule # 1" to wit: I agree to obey all local, state, and federal laws was insufficient under the due process clause (Relator's brief at 3.); and the lack of notice was structural error; (3) respondent failed to present a preponderance of the evidence that relator engaged in "sexual conduct" as that term is defined pursuant to R.C. 2901.03(A); and (4) respondent interfered with relator's right to counsel at his revocation hearing by failing to provide adequate notice since counsel "could not know" which specific local, state, or federal law relator was alleged to have violated (Relator's brief at 6.); the conduct tried at the revocation hearing, that relator touched a nurse's leg, was more akin to a violation under R.C. 2907.06, sexual imposition, which relator claims requires more than the testimony of the alleged victim pursuant to R.C.2907.06(B) and his counsel was prevented from using that as an affirmative defense since the notice of alleged violation was insufficient.

{¶ 5} Finally, relator argues respondent's judgment is void and he must be restored to his former parole status.

{¶ 6} We begin by noting the document attached to relator's complaint titled "Notice of Findings of Release Violation Hearing," in section II titled "[s]ummary of evidence used in arriving at findings," states that with regard to Count 2, the allegation involving S.O., a nurse, "the APA failed to provide sufficient corroboration in the Violation Report, Documentary Evidence submitted into the Record, and Verbal Testimony presented during the Hearing for violation of Ohio Parole Rule #1 (count 2)." According to the documentation submitted by relator with his complaint, he was only found to have violated Ohio Parole Rule #1 as alleged in Count 1. Therefore, it is not necessary for us to consider relator's objections with regard to Count 2 and the allegation that he attempted to engage in sexual contact with S.O. without her consent. We need only focus our analysis of appellant's objections on Count 1, the allegation that he attempted to engage in sexual contact with a nurse, T.G., without her consent.

{¶ 7} First, relator argues the magistrate erred in applying the wrong standard for Civ.R. 12(C). Relator is mistaken regarding which Civil Rule applies here. Relator argues that Civ.R. 12(C) applies. However, the magistrate granted the motion to dismiss pursuant to Civ.R. 12(B)(6). Nevertheless, the standards applied in Civ.R. 12(C) and (12)(B)(6), in relevant part, are similar. In State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), the court outlined the general criteria for granting a motion to dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6) in a mandamus complaint:

A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. Assn. for the Defense of the Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117, 537 N.E.2d 1292, 1293. Thus, the movant may not rely on allegations or evidence outside the complaint; otherwise, the motion must be treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment. Civ.R. 12(B); State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio St.3d 98, 99, 562 N.E.2d 1383, 1384. Even then, only certain forms of evidence may be submitted to support the motion. Civ.R. 56(C).
The standard for reviewing the sufficiency of a mandamus complaint was stated in State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221, 223-224, 12 O.O.3d 229, 230, 390 N.E.2d 782, 785:
"In construing a complaint upon a motion to dismiss for failure to state a claim, the material allegations of the complaint are taken as admitted. Jenkins v. McKeithen (1969), 395 U.S. 411, 421 [89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416]. [All reasonable inferences must also be drawn in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756; Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, 589.] Then, before the court may dismiss the complaint, '* * * it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. * * *' O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242 [71 O.O.2d 223, 327 N.E.2d 753].
"In order to establish a claim in mandamus, it must be proved that there exists a clear legal duty to act on the part of a public officer or agency, and that the relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141, 228 N.E.2d 631], paragraph one of the syllabus. A complaint in mandamus states a claim if it alleges the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted."
Accord State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80-81, 537 N.E.2d 641, 644-645, and State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 96-97, 563 N.E.2d 713, 715-716.

{¶ 8} Generally, under Civ.R. 12(B)(6), a respondent is not permitted to support its motion to dismiss for failure to state a claim by relying on anything outside the complaint. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 96 (1995). Nevertheless, the Supreme Court of Ohio has stated that material incorporated into a complaint may be considered as part of the complaint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 109 (1995); State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249 (1997). Furthermore, recently, in State ex rel. Washington v. D'Apolito, 156 Ohio St.3d 77, 2018-Ohio-5135, ¶ 10, the Supreme Court also stated "[a] court is not required to accept allegations in a complaint as true when they are contradicted by documents attached to the complaint." The Supreme Court further cautioned courts to refrain, at the motion to dismiss stage, from weighing the facts, making inferences against the non-moving party and rejecting a relator's allegations as false. Id. at ¶ 11. Finally, the court stated that a Civ.R. 12(B)(6) dismissal based on the merits is unusual and should be granted with caution.

{¶ 9} In this case, the magistrate cited to the correct Civ.R. 12(B)(6) standard of review. (See Appended Mag.'s Decision at ¶ 44.) Accordingly, we reject relator's first argument.

{¶ 10} Before analyzing the second and fourth arguments, we observe that in granting the motion pursuant to Civ.R. 12(B)(6), the magistrate relied not only on the complaint but also on documents relator attached to his complaint. The magistrate found the documents attached to relator's complaint included a notice, bearing his signature acknowledging receipt, which clearly described the violative conduct and the parole rule alleged to have been violated. The magistrate found the due process rules which apply to parole hearings were met and that it is apparent from these documents that relator was not...

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