State ex rel. Raymond Mango, Relator,
Ohio Department of Rehabilitation and Correction, Respondent.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Raymond Mango, pro se.
Yost, Attorney General, and Christine E. Mahy, for
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.
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 "
is in fact 'contrary' to the complaint within the
submitted 'Mandamus' [and]  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
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');">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');">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
documents 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
"testified 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 and police narrative
state that relator was trying to retrieve his property, get
his clothes which Jarrett ...