[Cite as Fields v. Bickle, 2014-Ohio-2634.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
GERALD FIELDS : JUDGES: : Hon. Sheila G. Farmer P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : TODD A. BICKLE, CLERK : Case No. CT2014-0002 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CH2013-0239
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 16, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GERALD FIELDS, Pro Se MARK LANDERS Inmate No. 617-709 JULIA R. BAXTER Franklin Medical Center Two Miranova Place P.O. Box 23658 Suite 700 1990 Harmon Avenue Columbus, OH 43215 Columbus, OH 43223 Muskingum County, Case No. CT2014-0002 2 Farmer, P.J.
{¶1} Appellant, Gerald Fields, is an inmate, currently in the Franklin Medical
Center. He was convicted of trafficking in drugs and permitting drug abuse (Case No.
CR2009-0166). On May 22, 2012, appellant was appointed counsel to pursue an
appeal. On May 25, 2012, appellant submitted for filing with the Muskingum County
Clerk of Courts, appellee herein, Todd Bickle, a motion for interim determination to
appellate jurisdiction. Appellee did not file the motion as it did not come from appellant's
appointed counsel, and instead forwarded the motion to said counsel.
{¶2} On May 23, 2013, appellant filed a complaint against appellee for failing to
file the motion. Appellee filed a motion to dismiss the complaint on June 18, 2013. By
entry filed December 12, 2013, the trial court granted the motion and dismissed the
complaint, finding appellee was immune in his official and individual capacities.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREBY
OFFENDING DUE PROCESS WHEN IT CONCLUDED THAT DEFENDANT WAS/IS
'EXEMPT' FROM LIABILITY UNDER O.R.C. § 2744.03(A)(6) FOR ACTIONS OR
OMISSIONS MANIFESTLY OUTSIDE THE SCOPE OF DEFENDANT'S OFFICIAL
DUTIES, RESPONSIBILITIES AND EMPLOYMENT."
{¶5} Appellant claims the trial court erred in granting appellee's Civ.R. 12(B)(6)
motion to dismiss. We disagree. Muskingum County, Case No. CT2014-0002 3 {¶6} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228 (1990). 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. State ex rel. Hanson v. Guernsey
County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo
analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber,
57 Ohio St.3d 56 (1991).
{¶7} In its entry filed December 12, 2013, the trial court specifically found the
allegations of the complaint were within the duties and governmental function of the
clerk of courts under R.C. 2303.08 which states the following:
The clerk of the court of common pleas shall indorse on each
pleading or paper in a cause filed in the clerk's office the time of filing,
enter all orders, decrees, judgments, and proceedings of the courts of
which such individual is the clerk, make a complete record when ordered
on the journal to do so, and pay over to the proper parties all moneys
coming into the clerk's hands as clerk. The clerk may refuse to accept for
filing any pleading or paper submitted for filing by a person who has been
found to be a vexatious litigator under section 2323.52 of the Revised
Code and who has failed to obtain leave to proceed under that section. Muskingum County, Case No. CT2014-0002 4 {¶8} It necessarily follows that the filing of motions is a governmental function
and the principles of sovereign immunity apply. See, R.C. 2744.01(C) and R.C.
2744.02(A). As noted by the trial court, none of the exceptions to immunity applies sub
judice. See, R.C. 2744.02(B)(1)-(5).
{¶9} R.C. 2744.03 governs defenses and immunities, and states the following
in pertinent part:
(A) In a civil action brought against a political subdivision or an
employee of a political subdivision to recover damages for injury, death, or
loss to person or property allegedly caused by any act or omission in
connection with a governmental or proprietary function, the following
defenses or immunities may be asserted to establish nonliability:
(6) In addition to any immunity or defense referred to in division
(A)(7) of this section and in circumstances not covered by that division or
sections 3314.07 and 3746.24 of the Revised Code, the employee is
immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly outside the
scope of the employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose,
in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a
section of the Revised Code. Civil liability shall not be construed to exist
under another section of the Revised Code merely because that section Muskingum County, Case No. CT2014-0002 5 imposes a responsibility or mandatory duty upon an employee, because
that section provides for a criminal penalty, because of a general
authorization in that section that an employee may sue and be sued, or
because the section uses the term "shall" in a provision pertaining to an
employee.
{¶10} The sole act complained of is that appellee refused to file appellant's pro
se motion because he had an appointed counsel of record. We note this motion was
attempted to be filed in this court, as it is entitled "In the Fifth Appellate District Court for
Muskingum County," Case No. CT 2012-0030 (a prior appeal). As the duly elected
Clerk of Courts for the Muskingum County Common Pleas Courts, appellee has a
statutory duty to act as clerk for this court for actions filed in appellee's county. See,
R.C. 2303.03 and Loc.R. 2(A) of the Fifth Appellate Judicial District.
{¶11} Appellant also appears to argue that the trial court's decision went outside
the four corners of the complaint. As noted, the trial court's decision rested on the filing
of papers as a governmental function and immunity applied, unless there are allegations
of acts or omissions committed with "malicious purpose, in bad faith, or in a wanton or
reckless manner." We find, as did the trial court, that appellant has not alleged any
facts in the complaint to justify that appellee's actions were done with malicious
purpose, in bad faith, or in a wanton or reckless manner. Appellant alleged in his
complaint that pursuant to his discretion, appellee forwarded the motion to his counsel
of record, and appellant acknowledged that his attorney responded to him. See,
Complaint at 6 and attached letter from Attorney David Sams. Although the terms Muskingum County, Case No. CT2014-0002 6 "wanton," "maliciously," "recklessly," and "bad faith" are sprinkled throughout the
complaint, the pleading speaks in "negligence."
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[Cite as Fields v. Bickle, 2014-Ohio-2634.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
GERALD FIELDS : JUDGES: : Hon. Sheila G. Farmer P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : TODD A. BICKLE, CLERK : Case No. CT2014-0002 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CH2013-0239
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 16, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GERALD FIELDS, Pro Se MARK LANDERS Inmate No. 617-709 JULIA R. BAXTER Franklin Medical Center Two Miranova Place P.O. Box 23658 Suite 700 1990 Harmon Avenue Columbus, OH 43215 Columbus, OH 43223 Muskingum County, Case No. CT2014-0002 2 Farmer, P.J.
{¶1} Appellant, Gerald Fields, is an inmate, currently in the Franklin Medical
Center. He was convicted of trafficking in drugs and permitting drug abuse (Case No.
CR2009-0166). On May 22, 2012, appellant was appointed counsel to pursue an
appeal. On May 25, 2012, appellant submitted for filing with the Muskingum County
Clerk of Courts, appellee herein, Todd Bickle, a motion for interim determination to
appellate jurisdiction. Appellee did not file the motion as it did not come from appellant's
appointed counsel, and instead forwarded the motion to said counsel.
{¶2} On May 23, 2013, appellant filed a complaint against appellee for failing to
file the motion. Appellee filed a motion to dismiss the complaint on June 18, 2013. By
entry filed December 12, 2013, the trial court granted the motion and dismissed the
complaint, finding appellee was immune in his official and individual capacities.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREBY
OFFENDING DUE PROCESS WHEN IT CONCLUDED THAT DEFENDANT WAS/IS
'EXEMPT' FROM LIABILITY UNDER O.R.C. § 2744.03(A)(6) FOR ACTIONS OR
OMISSIONS MANIFESTLY OUTSIDE THE SCOPE OF DEFENDANT'S OFFICIAL
DUTIES, RESPONSIBILITIES AND EMPLOYMENT."
{¶5} Appellant claims the trial court erred in granting appellee's Civ.R. 12(B)(6)
motion to dismiss. We disagree. Muskingum County, Case No. CT2014-0002 3 {¶6} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228 (1990). 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. State ex rel. Hanson v. Guernsey
County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo
analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber,
57 Ohio St.3d 56 (1991).
{¶7} In its entry filed December 12, 2013, the trial court specifically found the
allegations of the complaint were within the duties and governmental function of the
clerk of courts under R.C. 2303.08 which states the following:
The clerk of the court of common pleas shall indorse on each
pleading or paper in a cause filed in the clerk's office the time of filing,
enter all orders, decrees, judgments, and proceedings of the courts of
which such individual is the clerk, make a complete record when ordered
on the journal to do so, and pay over to the proper parties all moneys
coming into the clerk's hands as clerk. The clerk may refuse to accept for
filing any pleading or paper submitted for filing by a person who has been
found to be a vexatious litigator under section 2323.52 of the Revised
Code and who has failed to obtain leave to proceed under that section. Muskingum County, Case No. CT2014-0002 4 {¶8} It necessarily follows that the filing of motions is a governmental function
and the principles of sovereign immunity apply. See, R.C. 2744.01(C) and R.C.
2744.02(A). As noted by the trial court, none of the exceptions to immunity applies sub
judice. See, R.C. 2744.02(B)(1)-(5).
{¶9} R.C. 2744.03 governs defenses and immunities, and states the following
in pertinent part:
(A) In a civil action brought against a political subdivision or an
employee of a political subdivision to recover damages for injury, death, or
loss to person or property allegedly caused by any act or omission in
connection with a governmental or proprietary function, the following
defenses or immunities may be asserted to establish nonliability:
(6) In addition to any immunity or defense referred to in division
(A)(7) of this section and in circumstances not covered by that division or
sections 3314.07 and 3746.24 of the Revised Code, the employee is
immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly outside the
scope of the employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose,
in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a
section of the Revised Code. Civil liability shall not be construed to exist
under another section of the Revised Code merely because that section Muskingum County, Case No. CT2014-0002 5 imposes a responsibility or mandatory duty upon an employee, because
that section provides for a criminal penalty, because of a general
authorization in that section that an employee may sue and be sued, or
because the section uses the term "shall" in a provision pertaining to an
employee.
{¶10} The sole act complained of is that appellee refused to file appellant's pro
se motion because he had an appointed counsel of record. We note this motion was
attempted to be filed in this court, as it is entitled "In the Fifth Appellate District Court for
Muskingum County," Case No. CT 2012-0030 (a prior appeal). As the duly elected
Clerk of Courts for the Muskingum County Common Pleas Courts, appellee has a
statutory duty to act as clerk for this court for actions filed in appellee's county. See,
R.C. 2303.03 and Loc.R. 2(A) of the Fifth Appellate Judicial District.
{¶11} Appellant also appears to argue that the trial court's decision went outside
the four corners of the complaint. As noted, the trial court's decision rested on the filing
of papers as a governmental function and immunity applied, unless there are allegations
of acts or omissions committed with "malicious purpose, in bad faith, or in a wanton or
reckless manner." We find, as did the trial court, that appellant has not alleged any
facts in the complaint to justify that appellee's actions were done with malicious
purpose, in bad faith, or in a wanton or reckless manner. Appellant alleged in his
complaint that pursuant to his discretion, appellee forwarded the motion to his counsel
of record, and appellant acknowledged that his attorney responded to him. See,
Complaint at 6 and attached letter from Attorney David Sams. Although the terms Muskingum County, Case No. CT2014-0002 6 "wanton," "maliciously," "recklessly," and "bad faith" are sprinkled throughout the
complaint, the pleading speaks in "negligence."
{¶12} We further note we do not see any reason for the motion for interim
determination to appellate jurisdiction as the determination of appellate jurisdiction rests
solely in the de novo review by this court pending an appeal once briefing is complete
and no damages could inure to appellant.
{¶13} Upon review, we find the trial court did not err in granting the motion to
dismiss.
{¶14} The sole assignment of error is denied.
{¶15} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 519