State ex rel. Mango v. Ohio Dep't of Rehab. & Corr.

• Decision Date: 21 November 2019
• Docket Number: No. 18AP-945,18AP-945
• Citation: 2019 Ohio 4774
• Parties: State ex rel. Raymond Mango, Relator, v. Ohio Department of Rehabilitation and Correction, Respondent.
• Court: Ohio Court of Appeals

2019 Ohio 4774

State ex rel. Raymond Mango, Relator, v. Ohio Department of Rehabilitation and Correction, Respondent.

No. 18AP-945

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

November 21, 2019

(REGULAR CALENDAR)

DECISION

On brief: Raymond Mango, pro se.

On brief: Dave Yost, Attorney General, and Christine E. Mahy, for respondent.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, J.

{¶ 1} In this original action, relator, Raymond Mango, requests a writ of mandamus ordering respondent, Ohio Adult Parole Revocation Hearing Committee, a subdivision of Ohio Department of Rehabilitation and Correction ("respondent"), to reinstate his parole or grant him a new revocation hearing with counsel and his witness present. Respondent filed a motion to dismiss.

{¶ 2} 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 recommends this court grant respondent's motion to dismiss and dismiss this action.

I. Relator's Objections

{¶ 3} Beyond the 14-day timeline outlined in Civ.R. 53, but with leave of this court, relator filed a motion in opposition of the magistrate's recommendation to dismiss, which we construe as objections to the magistrate's decision. Relator objects to the magistrate's recommendation and states that such recommendation "[1] is in fact 'contrary' to the complaint within the submitted 'Mandamus' [and] [2] shows no merits (legally) why such Mandamus should be 'dismissed' in favor of the Respondents." (Relator's Mot. in Opp. of Magistrate's Recommendation at 2.) In support, relator argues: (1) the magistrate erred in finding that relator was provided the opportunity to cross-examine witnesses and in not ordering respondent to vacate its finding that relator violated his parole by causing or attempting to cause physical harm to Gwendolyn Jarrett because: (a) respondent relied on hearsay evidence submitted by police officers, (b) Jarrett told the investigating detective she lied to the arresting officers because she was upset with relator as he was trying to break up with her, (c) relator was never charged with domestic violence in a court of law, and (d) Jarrett was not given an opportunity to be present at the parole hearing; (2) the magistrate erred in not ordering respondent to vacate its finding that relator violated his parole by failing to comply with respondent's special condition that he not change his residence without prior approval from respondent because: (a) respondent never addressed the same at the hearing, (b) respondent relied on hearsay evidence submitted by police officers, and (c) relator's sister now presents an affidavit to support a finding that relator never changed his residence; and (3) the magistrate erred in not ordering respondent to hold a new evidentiary hearing.

{¶ 4} In State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), the court outlined the criteria for granting a motion to dismiss for failure to state a claim 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.

{¶ 5} Furthermore, 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). Here, respondent did exactly that by pointing not only to the complaint but also to documents which relator attached to his complaint to support the motion to dismiss. Likewise, the magistrate relied on the complaint and attached documents to make findings of fact and conclusions of law.

{¶ 6} 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). However, recently, in State ex rel. Washington v. D'Apolito, 156 Ohio St.3d 77, 2018-Ohio-5135, 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." Id. at ¶ 10. 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.

{¶ 7} With this in mind, after carefully reviewing the documents¹ attached to the complaint, we cannot determine relator failed to state a claim without weighing the evidence and drawing inferences against relator.

{¶ 8} First, we address relator's objection to the magistrate's dismissal of his claim that he was not provided the opportunity to cross-examine witnesses because Jarrett was not subpoenaed (whether by his counsel or respondent). The magistrate found Jarrett was subpoenaed, the subpoena was hand-delivered to her address, and Jarrett did not appear. (Appended Mag. Dec. at ¶ 16, 18, 33-34.) The magistrate acknowledged, however, that relator submitted with his complaint a letter from Jarrett stating that she never received notice of the hearing and that the letter "is contradicted by the evidence which demonstrates otherwise." (Appended Mag. Dec. at ¶ 34.) The existence of contradictory evidence in the complaint and attachments thereto, necessarily required a weighing of the evidence to make the findings noted above. Such weighing is not permitted at the motion-to-dismiss stage. Accordingly, we sustain relator's objection as to this claim.

{¶ 9} Second, we address relator's objection to the magistrate's dismissal of his claim that respondent relied on hearsay to find that he violated the address rule. In support of his argument, relator points to State ex rel. Hines v. Ohio Parole Bd., 10th Dist. No. 95APE05-623 (Dec. 5, 1995). In Hines, this court held that "hearsay is not, under the due process guarantees set forth in Morrissey [v. Brewer, 408 U.S. 471 (1972)], necessarily inadmissible as it would be in a fully formalized criminal prosecution at trial." In Hines,this court further held that "in most cases hearsay cannot form the sole basis for revocation of parole." Id., citing Columbus v. Lacy, 46 Ohio App.3d 161 (10th Dist.1988).

{¶ 10} The magistrate found that one of two police officers was present to testify and his bodycam video was introduced into evidence. (Appended Mag. Dec. at ¶ 18.) The magistrate concluded the police officer "testified² not only to the statements Jarrett made to him, but also to his observations." (Emphasis added.) (Appended Mag. Dec. at ¶ 36.) However, although the police narrative attached to the complaint suggests what the officer's testimony might have been and what the bodycam video might depict, it cannot be conclusively determined without a transcript, stipulated minutes or other evidence from the administrative record or an App.R. 9(C) statement addressing the same. Furthermore, even if we were to accept that the officer testified to his observations as the police narrative suggests, such testimony, at this motion-to-dismiss stage, would not necessarily support a finding that relator violated the order not to change his residence without prior approval of respondent. The complaint...