[Cite as Byrd v. Supreme Court of Ohio, 2016-Ohio-7210.]



HOUSTON BYRD, JR.                                    Case No. 2016-00274-AD

      Plaintiff                                      Clerk Mark H. Reed

      v.
                                                     MEMORANDUM DECISION
SUPREME COURT OF OHIO

      Defendant

        {¶1} On April 12, 2016, pursuant to an order of this court requiring plaintiff,
Houston Byrd, Jr. (hereinafter plaintiff), to file an amended complaint, plaintiff filed his
amended complaint which consisted of plaintiff referring to the claim form and exhibits
he filed with his original complaint. On May 23, 2016, defendant, the Supreme Court of
Ohio (hereinafter defendant), filed a motion to dismiss plaintiff’s claim pursuant to Civ.R.
12(B)(6) because his amended complaint fails to state any viable claim for relief against
defendant. Further, defendant argues that to the extent plaintiff is attempting to assert
constitutional or criminal claims against defendant, the court lacks jurisdiction to hear
such claims and these claims should be dismissed pursuant to Civ.R. 12(B)(1). Plaintiff
filed a response to defendant’s motion to dismiss on May 31, 2016. On June 24, 2016,
defendant filed its investigation report that includes similar arguments to their May 23,
2016 Motion to Dismiss. Plaintiff filed two responses to defendant’s investigation report,
the first on July 1, 2016, and the second on July 7, 2016.
        {¶2} Based on a review of plaintiff’s submissions to the court, the court has
identified two issues or claims made by plaintiff.             First, plaintiff takes issue with
defendant’s Clerk of Court failure to accept a filing submitted to defendant by plaintiff,
and the Ohio Disciplinary Counsel (hereinafter ODC) failing to respond or address
plaintiff’s complaints with regard to the Clerk’s failure to accept plaintiff’s filings.
Second, plaintiff takes issue with a case in the Franklin County Court of Common Pleas
in which plaintiff believes the judge committed misconduct and the ODC failed to
respond.
Case No. 2016-00274-AD                        -2-               MEMORANDUM DECISION


        {¶3} With regard to the first issue, defendant, in its motion to dismiss, argues that
plaintiff’s assertions are barred by the public duty doctrine.                   Under R.C.
2743.02(A)(3)(a), "the state is immune from liability in any civil action or proceeding
involving the performance or nonperformance of a public duty." R.C. 2743.01 defines
"public duty" to include "any statutory, regulatory, or assumed duty concerning any
action or omission of the state involving any of the following: * * * [p]ermitting, certifying,
licensing, inspecting, investigating, supervising, regulating, auditing, monitoring, law
enforcement, or emergency response activity." The statute contains an exception that
applies only in the instance of a special relationship. A special relationship sufficient to
overcome immunity exists where there is (1) an assumption by the state, by means of
promises or actions, of an affirmative duty to act on behalf of the injured party; (2)
knowledge of the party and of the state's agents that inaction of the state could lead to
harm; (3) some form of direct contact between the state's agents and the injured party;
and (4) the injured party's justifiable reliance on the state's affirmative undertaking. R.C.
2743.02(A)(3)(b).
        {¶4} Defendant argues that plaintiff failed to demonstrate that he had a "special
relationship" with defendant or any of its purported agents because neither the Court,
Clerk, nor ODC undertook any affirmative duty to act on behalf of plaintiff. Further,
defendant argues that while ODC is generally tasked with investigating claims of
attorney and judicial misconduct, the March 15, 2016 correspondence referenced by
plaintiff does not establish an affirmative undertaking by the ODC to act for, or on behalf
of, plaintiff.
        {¶5} The court agrees with defendant that plaintiff’s claims with regard to
defendant and its alleged failure to file plaintiff’s documents are barred by the public
duty doctrine.    There is no evidence presented by plaintiff that defendant or its
employees assumed an affirmative duty to act on behalf of plaintiff. The documents
plaintiff submitted show the clerk’s conformance to defendant’s rules. Further, the court
Case No. 2016-00274-AD                      -3-               MEMORANDUM DECISION


also agrees with defendant that, to the extent that plaintiff’s claims can be construed as
a claim directly against the against the Supreme Court of Ohio or its Justices, Ohio
judges have absolute immunity for actions taken within their official discretion. Elliott v.
Ohio Dept. of Ins., 88 Ohio App.3d 1, 8, 623 N.E.2d 87 (10th Dist. 1993), citing Willitzer
v. McCloud, 6 Ohio St.3d 447, 449, 453 N.E.2d 693 (1983).
       {¶6} Further, to the extent that any of plaintiff’s claims can be construed as
constitutional claims against defendant, this court does not have jurisdiction over those
claims. It is well-settled that the court of claims does not have jurisdiction to hear
constitutional claims brought against the state. Bleicher v. Univ. of Cincinnati Coll. of
Med., 78 Ohio App.3d 302, 604 N.E.2d 783 (10th Dist. 1992).                This court has
consistently held that there exists no right of action against the State of Ohio under Title
42 U.S.C. § 1983 because the state is not a "person" within the meaning of Section
1983. Jett v. Dallas Indep. School Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598
(1989).
       {¶7} Similarly, this court does not have jurisdiction over any alleged criminal
claims against defendant in plaintiff’s complaint.      "R.C. 2743.02 does not confer
jurisdiction to the Court of Claims to consider criminal charges that should be
adjudicated in the courts of common pleas." Howard v. Supreme Court of Ohio, 10th
Dist. Nos. 04AP-1093 & 04AP-1272, 2005-Ohio-2130, ¶ 15, citing Troutman v. Ohio
Dept. of Rehab. and Corr., 10th Dist. Nos. 03AP-1240 & 04AP-670, 2005-Ohio-334,
¶ 17. As such, plaintiff has failed to state a claim for which relief can be granted, and
defendant’s motion to dismiss is GRANTED.


HOUSTON BYRD, JR.                            Case No. 2016-00274-AD

      Plaintiff                              Clerk Mark H. Reed

      v.
                                             ENTRY OF ADMINISTRATIVE
Case No. 2016-00274-AD                       -4-              MEMORANDUM DECISION


SUPREME COURT OF OHIO                         DETERMINATION

         Defendant

         Having considered all the evidence in the claim file, and for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.




                                               MARK H. REED
                                               Clerk

Entry cc:


Houston Byrd, Jr.                              Nicole M. Koppitch, Associate Assistant
241 N. 10th Street                             Attorney General, Counsel for Defendant
Newark, Ohio 43055                             Constitutional Offices Section
                                               30 East Broad Street, 16th Floor
                                               Columbus, Ohio 43215



Filed 9/18/16
Sent to S.C. Reporter
