State ex rel. Clark v. O'Donnell

[Cite as State ex rel. Clark v. O'Donnell, 2022-Ohio-1036.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Melvin Bernard Clark Junior, :
Relator, : No. 21AP-416
v. : (REGULAR CALENDAR)
[Colleen O'Donnell] et al., :
Respondents. :
DECISION
Rendered on March 29, 2022
On brief: Melvin Bernard Clark Junior, pro se.
On brief: G. Gary Tyack, Prosecuting Attorney, and
Anthony C. Chambers, for respondents.
IN MANDAMUS
ON RESPONDENTS' MOTION TO DISMISS
BEATTY BLUNT, J.
{¶ 1} Relator, Melvin Bernard Clark Junior, has filed this original action naming as
respondents the following: State of Ohio, Franklin County, City of Columbus, Court of
Common Pleas, Colleen O'Donnell, Dirk Russell, Travis Runyon, Daniel Panella, Jack
Wong, and John P. Gripshover. Respondents O'Donnell, Wong, and Gripshover filed a
motion to dismiss the complaint on September 17, 2021.
{¶ 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. The magistrate considered the motion to dismiss
for failure to state a claim filed by respondents and issued a decision, including findings of
fact and conclusions of law, which is appended hereto. The magistrate concluded Clark
failed to state a claim upon which relief may be granted pursuant to Civ.R. 12(B)(6) and was
not entitled to the writ requested. Specifically, the magistrate found that mandamus will
No. 21AP-416 2
not compel the performance of a duty that has already been performed, and respondent
O'Donnell had already issued entries disposing of Clark's motion and most of the affidavits
for which Clark sought a writ. The magistrate further found that with regard to the other
affidavit for which Clark sought a writ, Clark's mandamus complaint was filed prematurely
under Sup.R. 40(A)(3). Accordingly, the magistrate recommended this court dismiss the
action and deny Clark's request for a writ of mandamus.
{¶ 3} No objections have been filed to the magistrate's decision.1
{¶ 4} Upon review, we have found no error in the magistrate's finding of fact or
conclusions of law. Therefore, we adopt the magistrate's decision as our own, including the
findings of fact and the conclusions of law therein, and conclude that Clark failed to
demonstrate he was entitled to a writ of mandamus. In accordance with the magistrate's
decision, respondents' motion to dismiss is granted, this action is dismissed, and the
requested writ of mandamus is denied.
Motion to dismiss granted;
complaint dismissed.
KLATT and MENTEL, JJ., concur.
________________
1On February 3, 2022, relator filed an application for reconsideration. This pleading was stricken from the
docket by this court via journal entry dated February 8, 2022 as being an improper pleading. See Feb. 8, 2022
Journal Entry.
No. 21AP-416 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Melvin Bernard Clark Junior, :
Relator, :
v. : No. 21AP-416
[Colleen O'Donnell] et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on December 8, 2021
Melvin Bernard Clark Junior, pro se.
G. Gary Tyack, Prosecuting Attorney, and Anthony C.
Chambers, for respondents.
IN MANDAMUS
ON RESPONDENTS' MOTION TO DISMISS
{¶ 5} Relator, Melvin Bernard Clark Junior, has filed this original action naming
the following respondents: State of Ohio, Franklin County, City of Columbus, Court of
Common Pleas, Colleen O'Donnell, Dirk Russell, Travis Runyon, Daniel Panella, Jack
Wong, and John P. Gripshover. Respondents O'Donnell, Wong, and Gripshover have filed
a September 17, 2021, motion to dismiss the complaint. Relator has also filed a September 1,
2021, affidavit of correction, injunction for relief, and motion for stay and seal.
No. 21AP-416 4
Findings of Fact:
{¶ 6} 1. Relator is a criminal defendant in Franklin C.P. No. 20CR-4649. In that
case, relator was indicted for improper handling of a firearm in a motor vehicle and carrying
a concealed weapon. Relator pled not guilty, and the matter remains pending.
{¶ 7} 2. Respondent O'Donnell is a judge in the Franklin County Court of Common
Pleas and the presiding judge in case No. 20CR-4649.
{¶ 8} 3. Respondents Wong and Gripshover are Franklin County assistant
prosecutors. Gripshover appears to be one of the prosecutors currently assigned to case No.
20CR-4649.
{¶ 9} 4. Respondents State of Ohio, Franklin County, and City of Columbus are
governmental entities.
{¶ 10} 5. Relator alleges that respondents Runyan, Panella, and Russell were
"arresting officers."
{¶ 11} 6. On October 16 and 22, 2020, in case No. 20CR-4649, relator filed motions
to dismiss.
{¶ 12} 7. On April 6 and 7, 2021, in case No. 20CR-4649, relator filed affidavits "to
order and notice," in which he moved for summary judgment.
{¶ 13} 8. On May 29, 2021, in case No. 20CR-4649, relator filed an "affidavit for
settlement and notice of default."
{¶ 14} 9. On June 12, 2021, in case No. 20CR-4649, respondent O'Donnell issued an
entry, in which she denied the following: (1) relator's October 16 and 22, 2020, motions to
dismiss; (2) relator's January 22, 2021, writ of discovery and motion to suppress; and (3)
relator's April 6 and 7, 2021, affidavits demanding summary judgment.
{¶ 15} 10. On August 20, 2021, relator filed a complaint for writ of mandamus
against respondents. Although the precise nature of the allegations in the complaint are
somewhat unclear, he indicates that he has filed motions to dismiss case No. 20CR-4649,
but the "motions have been denied and his affidavits remain unanswered." The complaint
also lists assignments of error, in which he argues that respondent O'Donnell erred when
she denied his motion to dismiss the charges against him, and the judge erred when she
denied his "affidavit to order and notice" and "affidavit for settlement and notice of default."
The complaint also raises violations of several provisions in the Ohio Revised Code and
United States Code.
No. 21AP-416 5
{¶ 16} 11. On September 1, 2021, in the present case, relator filed an affidavit of
correction, injunction for relief, and motion for stay and seal.
{¶ 17} 12. On September 17, 2021, respondents O'Donnell, Wong, and Gripshover
filed a motion to dismiss relator's mandamus complaint.
{¶ 18} 13. On November 9, 2021, respondent O'Donnell entered a criminal case
processing sheet in case No. 20CR-4649, which vacated the November 8, 2021, trial date,
pending a decision on the present mandamus complaint.
Conclusions of Law:
{¶ 19} The magistrate recommends that this court grant respondents' motion to
dismiss this action.
{¶ 20} For a writ of mandamus to issue, the relator must demonstrate: (1) a clear
legal right to the relief requested; (2) the respondent is under a clear legal duty to perform
the requested act; and (3) the relator has no plain and adequate remedy at law. State ex rel.
Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 21} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the
complaint. "In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6) 'it must appear
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him
to recovery.' " T & M Machines, LLC at ¶ 10, quoting O'Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. In construing a complaint upon a Civ.R.
12(B)(6) motion, a court must presume that all factual allegations in the complaint are true
and make all reasonable inferences in the plaintiff's favor. LeRoy v. Allen, Yurasek &
Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14.
{¶ 22} The magistrate may take judicial notice of the pleadings and orders in related
cases when these are not subject to reasonable dispute, at least insofar as they affect the
present original action. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199,
2020-Ohio-2690, ¶ 33, citing Evid.R. 201(B); State ex rel. Ohio Republican Party v.
Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, ¶ 18; and State ex rel. Womack v. Marsh,
128 Ohio St.3d 303, 2011-Ohio-229, ¶ 8. Furthermore, a court may take judicial notice of
pleadings that are readily accessible on the internet. See Draughon v. Jenkins, 4th Dist. No.
16CA3528, 2016-Ohio-5364, ¶ 26, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d
195, 2007-Ohio-4798, ¶ 8, 10 (a court may take judicial notice of appropriate matters,
including judicial opinions and public records accessible from the internet, in determining
No. 21AP-416 6
a Civ.R. 12(B)(6) motion); and Giannelli, 1 Baldwin's Ohio Practice Evidence, Section 201.6
(3d Ed.2015) (noting that the rule generally precluding a court from taking judicial notice
of other cases has been relaxed if the record is accessible on the internet). In addition, courts
may take judicial notice of appropriate matters in determining a Civ.R. 12(B)(6) motion
without converting it to a motion for summary judgment. State ex rel. Findlay Publishing
Co. v. Schroeder, 76 Ohio St.3d 580-81 (1996); Draughon at ¶ 26 (a court may take judicial
notice of appropriate matters, including judicial opinions and public records accessible
from the internet, in determining a Civ.R. 12(B)(6) motion without converting it to a motion
for summary judgment).
{¶ 23} "[M]andamus will lie when a trial court has refused to render, or unduly
delayed rendering, a judgment." State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303(2003). Sup.R. 40(A)(3) imposes on trial courts a duty to rule on motions within 120 days.
Although the Rules of Superintendence do not provide litigants with a right to enforce
Sup.R. 40, the rule does guide courts in determining whether a trial court has unduly
delayed ruling on a motion for purposes of ruling on a request for an extraordinary writ.
State ex rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, ¶ 11. A court that takes
more than 120 days to rule on a motion risks unduly delaying the case and that a higher
court may issue a writ of mandamus to compel a ruling. Id.{¶ 24} Mandamus will not compel the performance of a duty that has already been
performed. State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318 (2000), citing State
ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253 (1998).
{¶ 25} In the present case, respondents argue in their motion to dismiss that
respondent O'Donnell has already ruled on and denied relator's motions to dismiss and
addressed several of his affidavits; thus, mandamus will not lie. In a June 12, 2021, entry,
respondent O'Donnell denied the following: (1) relator's October 16 and October 22, 2020,
motions to dismiss; (2) relator's January 22, 2021, writ of discovery and motion to
suppress; and (3) relator's April 6 and 7, 2021, affidavits "to order and notice" demanding
summary judgment. One of the affidavits specifically mentioned in relator's mandamus
complaint, the "affidavit to order and notice," appears to be the identical April 6 and 7,
2021, affidavits "to order and notice" denied by respondent O'Donnell in the June 12, 2021,
entry. Therefore, insofar as relator's arguments in his present mandamus complaint relate
to the motions and affidavits addressed in the June 12, 2021, entry, these arguments are
not well taken, because respondent O'Donnell has already issued entries disposing of them,
No. 21AP-416 7
and mandamus will not compel the performance of a duty that has already been performed.
See Kreps at 318. Furthermore, with regard to the other affidavit specifically mentioned by
relator in his mandamus complaint, the "affidavit for settlement and notice of default," this
may refer to a May 29, 2021, filing with the same title. However, assuming arguendo that
this "affidavit for settlement and notice of default" is a "motion," relator filed his mandamus
complaint on August 20, 2021, which is only 82 days after the filing of the "affidavit for
settlement and notice of default." Therefore, relator filed his mandamus complaint well
before the 120-day deadline imposed by Sup.R. 40(A)(3), rendering his mandamus
complaint premature. Relator's mandamus complaint does not direct the magistrate to any
other specific action or inaction by any of the respondents that would be subject to
mandamus relief.
{¶ 26} Accordingly, it is the magistrate's decision that this court should grant the
motion to dismiss filed by O'Donnell, Wong, and Gripshover and dismiss relator's
complaint for writ of mandamus as to all named respondents. The magistrate further
recommends that this court deny as moot relator's September 1, 2021, affidavit of
correction, injunction for relief, and motion for stay and seal.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).