Billiter v. Banks

[Cite as Billiter v. Banks, 2014-Ohio-1492.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Fred Billiter et al., :

Plaintiffs-Appellants, :

v. : No. 13AP-759
(C.P.C. No. 12CV-08-10579)
NCI Warden Edward Banks et al., :
(REGULAR CALENDAR)
Defendants-Appellees. :

D E C I S I O N

Rendered on April 8, 2014

Fred Billiter; Gary Brewster; David McBrayer; and Clifford
Bowen, pro se.

Michael DeWine, Attorney General, and Peter L. Jamison, for
appellees Mohr, Banks, Aufdenkampe, Gray, Voorhies, and
Croft.

Kelly A. Riddle, for appellees Judge Nau and Karen S. Starr.

APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
{¶ 1} Plaintiffs-appellants, Fred Billiter, George Brewster, David McBrayer, and
Clifford Bowen, appeal from a judgment of the Franklin County Court of Common Pleas,
dismissing their complaint against Noble County Clerk of Court, Karen S. Starr ("Clerk
Starr"), Judge John W. Nau of the Noble County Court of Common Pleas, and numerous
employees of the Noble Correctional Institution ("NCI") and the Ohio Department of
Corrections ("DRC"). For the reasons that follow, we affirm.
No. 13AP-759 2

A. Facts and Procedural History
{¶ 2} Appellants are inmates in the custody and control of DRC and NCI. On
August 22, 2013, appellants filed a complaint against appellees seeking both monetary
damages and equitable relief. The complaint alleges wide ranging and pervasive
corruption within NCI and DRC as well as incompetence and/or intentional misconduct
on the part of Judge Nau and Clerk Starr, all of which resulted in violations of appellants'
constitutional and statutory rights. On September 18, 2013, appellants filed a motion to
dismiss the complaint, pursuant to Civ.R. 12(B)(1), due to the lack of subject-matter
jurisdiction. Therein, appellees argued that the NCI and DRC defendants are employees of
the State and, as such, they are immune from civil liability to appellants for any acts or
omissions within the scope of their state office or employment. Appellees further alleged
that R.C. 2743.02(F) confers exclusive original jurisdiction upon the Court of Claims to
"determine, initially, whether the officer or employee is entitled to personal immunity
under section 9.86 of the Revised Code and whether the courts of common pleas have
jurisdiction over the civil action."
{¶ 3} In response to appellees' motion to dismiss, appellants filed a motion to
amend their complaint on July 5, 2013. On October 10, 2012, appellees filed a
memorandum in opposition wherein they asserted additional grounds for dismissal,
including appellants' failure to comply with the mandatory filing requirements of R.C.
2969.25 and 2969.26. On July 30, 2013, the trial court dismissed the complaint both
because it lacks subject-matter jurisdiction of claims asserted against officers and
employees of NCI and DRC, and because appellants failed to comply with the filing
requirements of R.C. 2969.25 and 2969.26 with respect to their claims against Judge Nau
and Clerk Starr.1 Appellants timely appealed to this court.
B. Assignments of Error
{¶ 4} Appellants appeal from the Franklin County Court of Common Pleas and
assign the following as errors:

1 The trial court sua sponte dismissed several of the named plaintiffs because they did not sign the

complaint.
No. 13AP-759 3

FIRST ASSIGNMENT OF ERROR: THE FRANKLIN
COUNTY COURT OF COMMON PLEAS VIOLATEDTHE
PLAINTIFFS' CONSTITUTIONAL RIGHT TO A JURY
TRIAL, THEIR EQUAL PROTECTION AND BENEFIT
RIGHTS, THEIR DUE PROCESS RIGHTS, AND DENIED
THEM MEANINGFUL ACCESS TO THE COURTS TO
REDRESS GRIEVANCES AGAINST STATE OFFICIALS AND
NON-STATE DEFENDANTS WHEN IT GRANTED THE
OHIO ATTORNEY GENERAL'S SEPTEMBER, 2012
MOTION TO DISMISS, AND THEREBY DISMISSED THE
ENTIRE CASE FOR ALL DEFENDANTS AND FOUND ALL
OTHER MOTION MOOT. (Sic.)

SECOND ASSIGNMENT OF ERROR: THE FRANKLIN
COUNTY COURT OF COMMON PLEAS VIOLATED THE
PLAINTIFFS' CONSTITUTIONAL, DUE PROCESS, EQUAL
PROTECTION RIGHTS AND DENIED THEM
MEANINGFUL ACCESS TO THE COURTS AND TO
REDRESS WHEN IT DENIED ALL MOTIONS AS MOOT,
SPECIFICALLY REFUSING TO REVIEW, CONSIDER, AND
GRANT THE PLAINTIFFS' MOTIONS TO DECLARE A
CONFLICT OF INTEREST AND TO ORDER THE OHIO
ATTORNEY GENERAL TO WITHDRAW AND TO STRIKE
THEIR MOTIONS.

THIRD ASSIGNMENT OF ERROR: THAT THE CLERK OF
THE FRANKLIN COUNTY COURT LACKED AUTHORITY
TO ORDER AND TO COLLECT AND DOUBLE BILL THE
PLAINTIFFS FOR COURT COSTS ESPECIALLY AFTER THE
JUDGE DISMISSED THE CASE AND DID NOT ORDER ANY
COSTS.

C. Standard of Review
{¶ 5} In ruling on a Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter
jurisdiction, the trial court determines whether the claim raises any action cognizable in
that court. Brown v. Ohio Tax Commr., 10th Dist. No. 11AP-349, 2012-Ohio-5768;
Robinson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-550, 2011-Ohio-713, ¶ 5.
Subject-matter jurisdiction involves " 'a court's power to hear and decide a case on the
merits and does not relate to the rights of the parties.' " Id., quoting Vedder v.
Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶ 14. We apply a de novo
No. 13AP-759 4

standard when we review a trial court's ruling on a Civ.R. 12(B)(1) motion to dismiss.
Robinson at ¶ 5, citing Hudson v. Petrosurance, 10th Dist. No. 08AP-1030, 2009-Ohio-
4307, ¶ 12.
D. Legal Analysis
1. Jurisdiction of Claims against State Officers and Employees
{¶ 6} In Cullinan v. Ohio Dep.t of Job & Family Servs., 10th Dist. No. 12AP-208,
2012-Ohio-4836, we stated:
Courts of common pleas generally have jurisdiction over, inter
alia, civil disputes with more than $500 in controversy. The
Court of Claims, on the other hand, is a court of limited
jurisdiction having exclusive, original jurisdiction over claims
brought against the state as a result of the state's waiver of
immunity under R.C. 2743.02. The Court of Claims has
exclusive, original jurisdiction over civil actions filed against
the state for money damages sounding in law.

Id. ¶ 16. (Citations omitted.)
{¶ 7} R.C. 2743.02 provides in relevant part:
(F) A civil action against an officer or employee, as defined in
section 109.36 of the Revised Code, that alleges that the
officer's or employee's conduct was manifestly outside the
scope of the officer's or employee's employment or official
responsibilities, or that the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless
manner shall first be filed against the state in the court of
claims that has exclusive, original jurisdiction to determine,
initially, whether the officer or employee is entitled to
personal immunity under section 9.86 of the Revised Code
and whether the courts of common pleas have jurisdiction
over the civil action.

(Emphasis added.)

{¶ 8} Pursuant to R.C. 2743.02(F), the Court of Claims has exclusive jurisdiction
to determine whether a state employee is immune from liability under R.C. 9.86.
Rosenshine v. Med. College Hosps., 165 Ohio App.3d 9, 2005-Ohio-5648, ¶ 13 (10th
Dist.). "[C]ourts of common pleas do not have jurisdiction to make R.C. 9.86 immunity
determinations." Id., citing Johns v. Univ. of Cincinnati Med. Assoc., Inc., 101 Ohio St.3d
No. 13AP-759 5

234, 2004-Ohio-824, syllabus; Theobald v. Univ. of Cincinnati, 101 Ohio St.3d 370,
2004-Ohio-1527.
{¶ 9} "Officer" or "employee" as used in R.C. 9.86 "has the same meaning as in
division (A) of section 109.36 of the Revised Code." R.C. 9.85(A). Under R.C.
109.36(A)(1)(a) an officer or employee of the State "is a person who, at the time a cause of
action against the person arises, is serving in an elected or appointed office or position
with the state or is employed by the state."
{¶ 10} Based upon the allegations of the complaint, it is clear that the NCI or DRC
defendants are state officers or employees as defined in R.C. 9.86 and R.C. 2743.02.
Consequently, pursuant to R.C. 2743.02(F), appellants' civil action against these
particular individuals is within the exclusive original jurisdiction of the Court of Claims
for a determination "whether the officer or employee is entitled to personal immunity
under section 9.86 of the Revised Code and whether the courts of common pleas have
jurisdiction over the civil action."
{¶ 11} Appellants argue that even though some of the defendants named in the
complaint are state employees, the Court of Claims does not have jurisdiction of this case
inasmuch as the complaint does not seek money damages from the State. In making this
argument, appellants rely on the amendments to the complaint they proposed in their
July 15, 2013 motion.2 However, as the trial court ably noted, appellants' proposed
amendment expressly preserves their claims for money damages against several of the
state officers and employees named as defendants. Moreover, while the caption of
appellants' motion suggests that appellants intend to withdraw their claims for money
damages against certain state defendants, a closer reading of the motion reveals that
appellants are withdrawing the prayer for punitive damages only, leaving the issue of
compensatory damages for trial. In any event, the proposed amendment does not confer
jurisdiction upon the trial court.
{¶ 12} Finally, to the extent that appellees argue that the trial court should have
transferred the case to the Court of Claims rather than dismissing the complaint, we note

2 We note that appellants did not provide the trial court with a copy of the proposed amended complaint.
No. 13AP-759 6

that the Court of Claims may obtain jurisdiction of a civil action against the State either by
the filing of an original action against the State in the Court of Claims or upon removal,
pursuant to R.C. 2743.03(E), of an action properly filed in another court. Adams v. Cox,
10th Dist. No. 09AP-684, 2010-Ohio-415, ¶ 12-14. The Court of Claims Act does not
authorize the transfer of a case to the Court of Claims. Id.
{¶ 13} Based upon the foregoing, we hold that the trial court did not err when it
dismissed appellants' complaint due to the lack of subject-matter jurisdiction.
Accordingly, appellants' first assignment of error is overruled.
2. R.C. 2969.25 and 2969.26
{¶ 14} Although the trial court determined that it is without jurisdiction over
claims asserted against the state officers and employees named in the complaint, the
complaint also alleged claims for relief against Judge Nau and Clerk Starr. Both Judge
Nau and Clerk Starr are officers of Noble County, a political subdivision of the State; they
are not officers or employees of the State. R.C. 2743.01(A).
{¶ 15} The trial court dismissed the claims for relief against these defendants
because appellants failed to comply with the mandatory filing requirement of R.C.
2969.25 and 2969.26. R.C. 2969.25(A) provides, in relevant part:
At the time that an inmate commences a civil action or appeal
against a government entity or employee, the inmate shall file
with the court an affidavit that contains a description of each
civil action or appeal of a civil action that the inmate has filed
in the previous five years in any state or federal court.

{¶ 16} "Compliance with R.C. 2969.25 is mandatory and failure to comply subjects
an inmate's action to dismissal." Morris v. Franklin Cty. Court of Common Pleas, 10th
Dist. No. 05AP-596, 2005-Ohio-6306,¶ 6, citing State ex rel. Graham v. Findlay Mun.
Court, 106 Ohio St.3d 63, 2005-Ohio-3671, ¶ 6; State ex rel. Norris v. Giavasis, 100 Ohio
St.3d 371, 2003-Ohio-6609, ¶ 4, reconsideration denied, 101 Ohio St.3d 1471, 2004-
Ohio-819; State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, ¶ 5.
Appellants failed to file an R.C. 2969.25 affidavit setting forth the required information
regarding their prior civil actions and appeals. Accordingly, dismissal of a complaint was
No. 13AP-759 7

appropriate. See Spencer v. Ohio Adult Parole Auth., 10th Dist. No. 09AP-143, 2009-
Ohio-4656.
{¶ 17} With regard to R.C. 2969.26, in Hamilton v. Wilkinson, 10th Dist. No.
04AP-502, 2004-Ohio-6982, we stated:
R.C. 2969.26(A) requires that the prisoner shall file: (1) an
affidavit stating that the grievance was filed and the date the
prisoner received a decision on the grievance, and (2) a copy
of that written decision. Compliance with R.C. 2969.26(A) is
mandatory. Failure to follow the mandates of R.C. 2969.26(A)
warrants a dismissal of the prisoner's action.

Id. ¶ 12. (Emphasis sic.)(Citations omitted.)
{¶ 18} Although appellants attempted to comply with the statute by filing
statements with their complaint setting forth the efforts they made to obtain
administrative relief, those statements are unsworn. Thus, dismissal of the complaint was
appropriate. Id.
{¶ 19} Based upon the foregoing, we find that the trial court did not err when it
dismissed appellants' complaint against Judge Nau and Clerk Starr due to appellants'
failure to satisfy the requirements of R.C. 2969.25 and 2969.26. Accordingly, appellants'
second assignment of error is overruled.
{¶ 20} In appellants' third assignment of error, appellants allege that the Franklin
County Clerk of Courts erroneously billed each of them for the total costs of the action.
Appellants' claim that, as a result of the Clerk's actions, the correctional institution will
credit their inmate accounts for the entire amount of such costs.
{¶ 21} To the extent that appellants' assignment of error challenges the trial court's
assessment of costs, we note that "[i]n Ohio, court costs are required to be taxed against
the unsuccessful party." Wills v. Union Savings & Trust Co, 11th Dist. No. 3155,
(June 24, 1983); Civ.R. 54. Thus, the trial court did not err in assessing court costs against
appellants. To the extent that appellants seek an order from this court enjoining the
Franklin County Clerk of Courts for billing appellants for the assessed costs, we are
without jurisdiction to issue such an order in the context of this appeal. See Article IV,
No. 13AP-759 8

Section 3(B)(2), Ohio Constitution. Accordingly, appellants' third assignment of error is
overruled.
E. Conclusion
{¶ 22} Having overruled appellants' assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.

TYACK and KLATT, JJ., concur.
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