[Cite as Evans v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-4871.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



William H. Evans, Jr.,                                :

                Plaintiff-Appellant,                  :
                                                                         No. 19AP-270
v.                                                    :            (Ct. of Cl. No. 2019-00022JD)

Ohio Department of Rehabilitation                     :            (REGULAR CALENDAR)
and Correction,
                                                      :
                Defendant-Appellee.
                                                      :



                                         D E C I S I O N

                                  Rendered on November 26, 2019


                On brief: William H. Evans, pro se.

                On brief: Dave Yost, Attorney General, and Timothy M.
                Miller, for appellee.

                             APPEAL from the Court of Claims of Ohio
SADLER, J.
        {¶ 1} Plaintiff-appellant, William H. Evans, Jr., appeals from a judgment of the
Court of Claims of Ohio dismissing his complaint against defendant-appellee, Ohio
Department of Rehabilitation and Correction, for failure to state a claim on which relief can
be granted. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} According to the complaint, while appellant was serving a term of
incarceration at the Northeast Ohio Correctional Center, appellant discovered that in 2008,
a detainer lodged by the U.S. Marshal's Service had been placed in his inmate records. On
January 10, 2019, appellant filed the instant complaint in the Court of Claims seeking
No. 19AP-270                                                                                                   2


monetary damages and declaratory relief against appellee. The gravamen of appellant's
action against appellee is that appellee intentionally posted a federal "detainer" to his
inmate records when appellee either knew or had reason to know the detainer was
unauthorized. (Compl. at ¶ 2.) Appellant's complaint states that "[t]his detainer was
removed on Sept. 11, 2017 by [appellee] as being invalid." (Compl. at ¶ 2.) Appellant's
complaint seeks monetary damages from appellee as compensation for alleged violations
of R.C. 1347.10 and 2921.52. The complaint also "requests that mandatory 'judicial notice'
be applied to [all] filings" in State ex. rel Evans v. Mohr, 10th Dist. No. 17AP-571, 2018-
Ohio-935 ("Evans I"), and State ex rel. Evans v. Mohr, 155 Ohio St.3d 579, 2018-Ohio-
5089 ("Evans II"). (Compl. at ¶ 4.)1
        {¶ 3} Appellee moved the Court of Claims, pursuant to Civ.R. 12(B)(1) and (6), for
dismissal of the complaint. The Court of Claims issued a decision on April 8, 2019,
dismissing appellant's complaint, pursuant to Civ.R. 12(B)(6), for failure to state a claim on
which relief can be granted. Appellant timely appealed to this court from the judgment of
the Court of Claims.
II. ASSIGNMENTS OF ERROR
        {¶ 4} Appellant assigns the following as trial court error:
                 [1.] Trial Court Erred In Failing To Give [Mandatory] Judicial
                 Notice Under Evid.R. 201(D), As To All Filings In Another
                 Court, Where The Notice Was Pleaded FOR In The Complaint.
                 [2.] Trial Court Erred In Holding That Plaintiff Failed To
                 State A Claim.
III. STANDARD OF REVIEW
        {¶ 5} "An appellate court reviews a trial court's dismissal pursuant to Civ.R.
12(B)(6) de novo." Dunlop v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 16AP-550,
2017-Ohio-5531, ¶ 10, citing State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio
St.3d 315, 2016-Ohio-478, ¶ 12, citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
2004-Ohio-4362, ¶ 5. A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim
on which relief can be granted tests the sufficiency of the complaint. Dunlop at ¶ 10, citing


1 Though appellant's complaint also seeks a declaration that the federal detainer is a legal sham and that

appellee "was wrong in ever lodging it on [his] record, and wrong in failing to verify it," appellant makes no
argument in this appeal that the Court of Claims abused its discretion in refusing to issue any such declaration.
(Compl. at ¶ 6.)
No. 19AP-270                                                                                      3


Volbers-Klarich v. Middletown Mgt., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. " '[T]he
movant may not rely on allegations or evidence outside the complaint; such matters must
be excluded, or the motion must be treated as a motion for summary judgment.' " Dunlop
at ¶ 10, quoting Volbers-Klarich at ¶ 11, citing Civ.R. 12(B). "[I]n reviewing a Civ.R. 12(B)(6)
dismissal, an appellate court looks to the complaint, presumes that the complaint's factual
allegations are true, and makes all reasonable inferences in the nonmoving party's favor."
Dunlop at ¶ 10, citing Ohio Civ. Serv. Emps. Assn. at ¶ 12, citing Mitchell v. Lawson Milk
Co., 40 Ohio St.3d 190, 192 (1988). In so doing, "we need not accept as true unsupported
conclusions in a complaint." Dunlop at ¶ 10, citing Ohio Civ. Serv. Emps. Assn. at ¶ 21,
citing Mitchell at 193. An appellate court may affirm a judgment granting a Civ.R. 12(B)(6)
motion to dismiss only when there is no set of facts set forth in the complaint on which the
nonmoving party could recover. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
St.2d 242 (1975), syllabus.
IV. LEGAL ANALYSIS
       {¶ 6} For purposes of clarity, we will begin our discussion with appellant's second
assignment of error.
       A. Appellant's Second Assignment of Error
       {¶ 7} In appellant's second assignment of error, appellant argues the Court of
Claims erred when it dismissed his complaint against appellee for failure to state a claim
on which relief can be granted. Appellant contends the allegations in the complaint support
relief against appellee for the use of a sham legal process as prohibited by R.C. 2921.52 and
maintaining personal information in appellant's inmate file knowing it to be inaccurate, as
prohibited by R.C. 1347.20.2 We disagree.
       {¶ 8} R.C. 1347.10, which imposes liability on state and local agencies for wrongful
disclosure of personal information, provides in relevant part as follows:
               (A) A person who is harmed by the use of personal
               information that relates to him and that is maintained in a
               personal information system may recover damages in civil
               action from any person who directly and proximately caused
               the harm by doing any of the following:



2 Appellant has acknowledged his complaint does not state a cognizable claim for relief either under
constitutional law or the law of defamation. (Appellant's Brief at 2, 4.)
No. 19AP-270                                                                                                 4


                 (1) Intentionally maintaining personal information that he
                 knows, or has reason to know, is inaccurate, irrelevant, no
                 longer timely, or incomplete and may result in such harm.
        {¶ 9} The Court of Claims determined R.C. 1347.04(A)(1)(d) exempted appellee
from liability to appellant for the alleged violation of R.C. 1347.10. We agree.
        {¶ 10} R.C. 1347.04, entitled "Exemptions," provides in relevant part:
                 (A)(1) Except as provided in division (A)(2) of this section or
                 division (C)(2) of section 1347.08 of the Revised Code, the
                 following are exempt from the provisions of this chapter:
                 ***
                 (d) Any state or local agency or part of any state or local
                 agency that is a correction, probation, pardon, or parole
                 authority.
(Emphasis added.)
     {¶ 11} There is no dispute that appellee is a state agency that is a correction,
probation, pardon, or parole authority. See R.C. Chapter 5120 et seq.; Ohio Adm.Code
5120-2 et seq.; Ohio Adm.Code 5120:1-1 et seq. In Wilson v. Patton, 49 Ohio App.3d 150,
154 (4th Dist.1988), the court recognized that R.C. 1347.04(A)(1)(d) exempted state
correctional facilities from liability to inmates for alleged violations of R.C. Chapter 1347.
Appellant's complaint acknowledges he is an inmate in the custody and control of appellee.
Thus, the face of appellant's complaint conclusively establishes that appellee is exempt
from liability to appellant for the R.C. 1347.10 violations alleged therein. Accordingly, we
hold the Court of Claims did not err when it dismissed appellant's R.C. 1347.10 claim,
pursuant to Civ.R. 12(B)(6), for failure to state a claim on which relief can be granted.
        {¶ 12} R.C. 2921.52 creates both criminal and civil liability for "using a sham legal
process." Gunnell v. Secy. of State, Ct. of Cl. No. 2014-00832, 2015-Ohio-5617, ¶ 18. R.C.
2921.52(B) defines the offense of "[u]sing sham legal process" in relevant part as follows:
                 (B) No person shall, knowing the sham legal process to be
                 sham legal process, do any of the following:
                 (1) Knowingly issue, display, deliver, distribute, or otherwise
                 use sham legal process;
                 (2) Knowingly use sham legal process to arrest, detain,
                 search, or seize any person or the property of another person.3

3R.C. 2921.52(D) provides: "Whoever violates this section is guilty of using sham legal process. A violation of
division (B)(1) of this section is a misdemeanor of the fourth degree. A violation of division (B)(2) or (3) of
No. 19AP-270                                                                                                     5


        {¶ 13} Pursuant to R.C. 2921.52(A)(4), a "sham legal process" means an instrument
that meets all the following conditions:
                 (a) It is not lawfully issued.
                 (b) It purports to do any of the following:
                 (i) To be a summons, subpoena, judgment, or order of a
                 court, a law enforcement officer, or a legislative, executive, or
                 administrative body.
        {¶ 14} In addition to criminal liability which may be imposed on a person who uses
a sham legal process under R.C. 2921.52(B), "R.C. 2921.52(E) establishes civil liability
against those who participate in the sham legal process." Gunnell at ¶ 18. R.C. 2921.52(E)
subjects an offender to civil liability as follows:
                 A person who violates this section is liable in a civil action to
                 any person harmed by the violation for injury, death, or loss
                 to person or property incurred as a result of the commission
                 of the offense and for reasonable attorney's fees, court costs,
                 and other expenses incurred as a result of prosecuting the civil
                 action commenced under this division.
        {¶ 15} The Court of Claims determined appellant's complaint failed to state a claim
for relief under R.C. 2921.52 because appellant failed to allege facts which would support a
finding that he suffered a compensable injury as a result of the presence of the detainer in
his inmate records during the relevant time period. We agree.
        {¶ 16} This court acknowledges that the presence of inaccurate information in an
inmate's prison records may, under certain circumstances, adversely affect parole eligibility
and consideration. See State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375,
2014-Ohio-4270, ¶ 26 ("in any parole determination involving indeterminate sentencing,
the [Ohio Adult Parole Authority] may not rely on information that it knows or has reason
to know is inaccurate"). However, appellant's complaint does not allege that he has been
denied a timely parole hearing or denied parole, during the relevant time period, as a result
of the detainer. Furthermore, appellant's civil complaint contains no factual allegations
which would permit the inference that appellant suffered any other compensable harm
arising from the presence of the detainer in his inmate records. Accordingly, even if we


this section is a misdemeanor of the first degree, except that, if the purpose of a violation of division (B)(3) of
this section is to commit or facilitate the commission of a felony, a violation of division (B)(3) of this section
is a felony of the fourth degree. A violation of division (B)(4) of this section is a felony of the third degree."
No. 19AP-270                                                                                6


were to conclude appellant's complaint alleges sufficient factual information to support a
finding that the federal detainer amounted to a sham legal process and that appellee knew
the detainer was a sham when it displayed the detainer on his inmate records, appellant's
complaint fails to state a claim for relief under R.C. 2921.52. The language of the statute
does not support appellant's claim that damages are presumed whenever a statutory
violation occurs.
       {¶ 17} For the foregoing reasons, we hold the Court of Claims did not err when it
dismissed appellant's R.C. 2921.52 claim, pursuant to Civ.R. 12(B)(6), for failure to state a
claim on which relief can be granted. Appellant's second assignment of error is overruled.
       B. Appellant's First Assignment of Error
       {¶ 18} In appellant's first assignment of error, appellant argues the Court of Claims
erred by failing to take judicial notice of all documents filed in Evans I and Evans II. In
denying the request, the Court of Claims stated that it "cannot take judicial notice of court
proceedings in other cases or of prior proceedings before this court when considering a
Civ.R. 12(B)(6) motion." (Apr. 8, 2019 Entry of Dismissal at 2.) In support of its ruling, the
Court of Claims cited this court's decision in Charles v. Conrad, 10th Dist. No. 05AP-410,
2005-Ohio-6106, ¶ 26. We agree with the Court of Claims.
       {¶ 19} In Charles, this court made the following relevant observations regarding a
trial court's authority to take judicial notice of certain facts:
               Judicial notice concerns a court's acceptance, for purpose of
               convenience and without requiring a party's proof, of a well-
               known and indisputable fact. A trial court may take judicial
               notice of appropriate matters in considering a Civ.R. 12(B)(6)
               motion to dismiss for failure to state a claim. However, a trial
               court cannot take judicial notice of court proceedings in
               another case. Similarly, a trial court may not take judicial
               notice of prior proceedings in the court even if the same
               parties and subject matter are involved. A trial court may only
               take judicial notice of prior proceedings in the immediate
               case. The rationale for the rule that a trial court cannot take
               judicial notice of proceedings in a separate action is that the
               appellate court cannot review the propriety of the trial court's
               reliance on such prior proceedings because that record is not
               before the appellate court.
(Internal citations and quotations omitted.) Id. at ¶ 26.
No. 19AP-270                                                                                7


       {¶ 20} Applying the above cited legal rules, Charles held the trial court erred when
it relied on a Civ.R. 41(A)(1)(a) notice of dismissal appellant had filed in a prior case in
making the determination that appellant's complaint was timely filed under the savings
statute. Id. at ¶ 28. In so holding, we noted the notice of voluntary dismissal filed by
appellant in a prior case was not part of the record in the instant case and could not be
considered by the Court of Claims in ruling on appellee's Civ.R. 12(B)(6) motion to dismiss.
Id. at ¶ 30. We also noted the Court of Claims, on giving proper notice to the parties, "had
the option to convert appellee's Civ.R. 12(B)(6) motion to dismiss into a Civ.R. 56 motion
for summary judgment to consider material outside the complaint." Id., citing Powell v.
Vorys, Sater, Seymour & Pease, 131 Ohio App.3d 681, 684 (10th Dist.1998); Civ.R. 12(B).
       {¶ 21} Here, appellant asked the Court of Claims to take judicial notice of all filings
in Evans I and Evans II. Even if we were to conclude appellee's Civ.R. 12(B)(6) motion
admitted that Evans I and Evans II involved the same parties and same subject matter as
the instant matter, the Court of Claims was nevertheless precluded from taking judicial
notice of the information contained in the documents filed in those prior cases. Charles at
¶ 26. Because the filings in Evans I and Evans II were not attached as exhibits to appellant's
complaint and were not otherwise made part of the record in this case, those filings were
not properly before the Court of Claims in ruling on appellee's motion to dismiss. Charles
at ¶ 30. This court would therefore be unable to review the propriety of the Court of Claims'
reliance on such prior proceedings in any appeal from the Court of Claims' judgment. Id.
at ¶ 28. See also Dombelek v. Admr., Ohio Bur. of Workers' Comp., 154 Ohio App.3d 338,
2003-Ohio-5151, ¶ 26 (7th Dist.).
       {¶ 22} Moreover, appellant's argument in support of his first assignment of error is
that the information contained in the documents filed in Evans I and Evans II supports his
allegation that the detainer was a sham legal process. Having determined, however, that
appellant's complaint was subject to dismissal even if such an allegation were accepted as
true, appellant has not established prejudicial error arising from the denial of his request
for judicial notice.
       {¶ 23} For the foregoing reasons, we hold the Court of Claims did not err when it
refused to take judicial notice of documents filed in Evans I and Evans II. Accordingly,
appellant's first assignment of error is overruled.
No. 19AP-270                                                                   8


V. CONCLUSION
      {¶ 24} Having overruled appellant's two assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                              Judgment affirmed.
                        DORRIAN and BRUNNER, JJ., concur.
                                  _____________
