[Cite as Russell v. State, 2016-Ohio-840.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 ERIC T. RUSSELL, SR.                              :
                                                   :
          Plaintiff-Appellant                      :   C.A. CASE NO. 26739 and 26758
                                                   :
 v.                                                :   T.C. NO. 14CV4969
                                                   :
 STATE OF OHIO, et al.                             :   (Civil appeal from
                                                   :    Common Pleas Court)
          Defendants-Appellees                     :
                                                   :

                                              ...........

                                             OPINION

                 Rendered on the ___4th___ day of _____March_____, 2016.

                                              ...........

ERIC T. RUSSELL, SR., 4100 West Third Street, Building 400, Dayton, Ohio 45428
      Plaintiff-Appellant

ANNE M. JAGIELSKI, Atty. Reg. No. 0093047, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Defendant-Appellee Montgomery County Sheriff Phil Plummer

                                             .............

DONOVAN, P.J.

        {¶ 1} This matter is before the Court on the pro se Notices of Appeal of Eric T.

Russell, Sr., filed on June 23, 2015 and July 9, 2015. This Court consolidated the

appeals on September 23, 2015. Russell appeals from the dismissal of his petition for a

writ of habeas corpus (CA 26739) and the dismissal of a civil complaint with prejudice
                                                                                          -2-


(CA 26758). The decision of the trial court dismissing Russell’s habeas corpus petition

is affirmed, and the decision dismissing Russell’s civil complaint with prejudice is

reversed. The matter is remanded for further proceedings consistent with this opinion.

       {¶ 2} We initially note that on August 19, 2015, this Court affirmed Russell’s

conviction, after a jury trial, on one count of domestic violence (knowingly; two priors), in

violation of R.C. 2919.25(A), a felony of the third degree, and one count of domestic

violence (threats; two priors), in violation or R.C. 2919.25(C), a first degree misdemeanor.

Russell was sentenced to 12 months in prison for the felony and to 180 days for the

misdemeanor, to be served concurrently. The jury acquitted Russell of a third domestic

violence charge. This Court reversed the portion of the trial court’s judgment ordering 67

days of jail time credit and remanded the matter for correction of the amount of jail time

credit. State v. Russell, 2d Dist. Montgomery No. 26503, 2015-Ohio-3373.

       {¶ 3} The instant matter began on August 28, 2014, when Russell filed a pro se

complaint against the City of Dayton Police Department and Detective Hollie Bruss,

Michael Howley, the Montgomery County Board of Commission (“MCBC”), Montgomery

County Sheriff Phil Plummer, Susan Souther, the State of Ohio, and the victim in the

above domestic violence case, alleging “civil and constitutional rights violations,” and

“prisoner rights violations.” Russell alleged that statements he made in the course of the

investigation of the allegations of domestic violence in the above case violated his

Miranda rights and were subject to suppression. He also alleged that while he was held

in the Montgomery County Jail, he filed numerous complaints regarding his rights as a

prisoner based upon the “religious bigotry” of jail staff. He asserted that he was denied

requested medical treatment, and that he was denied the opportunity to attend a hearing
                                                                                           -3-


on the domestic violence victim’s petition for a civil protection order.

       {¶ 4} Sheriff Plummer filed an Answer on September 18, 2014. The MCBC,

Susan Souther, Michael Howley, and the Dayton Police Department and Detective Bruss

filed motions to dismiss, which the trial court granted. Russell filed multiple “Notices,”

“Objections,” “Entries” and “Motions.” For example on December 30, 2014, he filed a

“Motion for Demand of Judgment on Sheriff Phil Plummer and the State of Ohio pursuant

to case # 2014-CR-01896 ‘B’ * * *” which the trial court construed as a motion for summary

judgment and overruled. On March 9, 2015, Russell filed a “Motion to Add New Claim

to this Civil Action * * *,” which the trial court overruled on March 20, 2015, noting that it

“appears from the Motion the Defendant seeks to amend his Complaint to include

ineffective assistance of counsel, and other allegations relating to a separate criminal

action. This Court lacks authority in this civil action to review matters associated with

Defendant’s criminal conviction.”

       {¶ 5} On April 30, 2015, the trial court issued a Final Pretrial Order, scheduling a

final pretrial conference for June 17, 2015, and setting trial for June 29, 2015. The Order

provides:   “FAILURE TO APPEAR AT THE FINAL PRETRIAL CONFERENCE OR

TRIAL, OR FAILURE TO HAVE A WELL INFORMED SUBSTITUTE AVAILABLE, WILL

RESULT IN DISMISSAL OF THE CASE FOR FAILURE TO PROSECUTE UNDER OHIO

R. CIV.P. 41(B)(1). * * .” On May 18, 2015, Russell filed a “Withdrawal of Complaint

against named Defendants,” which provides in part as follows:

              Plaintiff comes before this Court, acknowledging having received the

       final Pretrial Order – Discovery Deadlines/ Perpetuation of Trial Testimony

       – etc., etc; Plaintiff’s End of Definite Sentence in Criminal Case
                                                                                        -4-


       #14CR01896 is September 12, 2015 meaning it’s close to impossible to

       appear before this Court on my own accord.

              Wherefore, Plaintiff hereby withdraws this Complaint against the

       named Defendants – “Mont. Co. Commission, Susan F. Souther, Michael

       J. Howley CPC/DR”;

              Whereas, Habeas Corpus petition will include Montgomery Co.

       Sheriff Phil Plummer as custodian during the period for which I’ve been held

       in Montgomery Co. Jail: (See Count # 3 of Criminal Case #14CR01896

       from 3/23/14 – 10/30/14; See also Dayton Municipal Court case #

       14CRB5643) * * *

       {¶ 6} On June 3, 2015, Russell filed a Petition for a Writ of Habeas Corpus. He

asserted that he is incarcerated at Noble County Correctional Institution, and that in

“cases # CPC 14CR01896 & #DMC14CRB05643 Relator Eric T. Russell was remanded

to the custody of Sheriff Phil Plummer of the Montgomery County Jail, Dayton, Ohio * *

*.” In a section entitled “Prayer for Relief,” Russell requested “that he may be discharged

from said illegal confinement pursuant to R.C. § 2725.17 Discharge of Prisoner.”

       {¶ 7} On June 9, 2015, the trial court issued a Notice that provides: “It appears to

the court that Plaintiff dismissed certain Defendants on May 18, 2015.           However,

Defendant’s claims against Montgomery County Sheriff, Phil Plummer, and [the domestic

violence victim] remain pending. Therefore, the trial scheduled in this matter for June

29, 2015 shall go forward as scheduled * * *.” The court, also on June 9, 2015, issued a

“Decision, Order and Entry Overruling Petition for a Writ of Habeas Corpus” that provides

as follows:
                                                                                         -5-


              Plaintiff, by his own assertion, is no longer being held at the

       Montgomery County Jail. Plaintiff was sentenced [on] November 18, 2014

       in the criminal case 2014 CR 01896, the case to which he refers throughout

       his multiple filings in this matter. On November 18, 2014, the Montgomery

       County Court of Common Pleas filed an Entry and Warrant to Transport

       Prisoner to the Ohio Department of Rehabilitation and Corrections. On

       November 19, 2014, the court filed a Termination Entry that again stated

       that Plaintiff would be “delivered to the Correctional Reception Center” to

       be imprisoned for a term of one year.

              ***

              Plaintiff has not alleged that any of the individuals who are parties to

       this case has actual legal custody of him as an inmate.          Instead, the

       Plaintiff is in the custody of the Warden of the Nob[le] Correctional

       Institution.   As such, Plaintiff has failed to meet his procedural burden

       relating to his Petition for Writ of Habeas Corpus, and this court is without

       jurisdiction to consider said Petition.

              ***

       {¶ 8} On June 17, 2015, Russell filed a “Motion for Request of Copies,” attached

to which is correspondence to the trial court which provides in part:

              I’m writing you for an alternative solution on “Pre” Trial schedule, I’m

       hoping for your acceptance of my “Application for Writ” (Habeas Corpus)

       that was sent May 28th, 2015 * * * I’m hoping the issues with my 178 days

       Jail time Credit will be resolved soon on criminal appeal filed in case #26503
                                                                                         -6-


       by Appellate Counsel Lucas Wilder, which would’ve made my outdate from

       ODRC May 20th 2015 * * *

       ***

                I’ve sent Correspondence to an Attorney in Middletown Ohio whom

       I’ve asked/requested to act on my behalf – “represent me”, in the upcoming

       trial proceedings * * * This letter went out on June 8, 2015 – I will update

       this Court as soon as I get any response from this attorney on whether he’s

       able to take my civil case for me: (Due to my current disposition of

       incarceration).

       {¶ 9} On June 19, 2015, after Russell failed to appear for the June 17, 2015 pretrial

conference, the trial court dismissed Russell’s complaint with prejudice for failure to

prosecute.

       {¶ 10}    Russell’s Notices of Appeal are addressed to the trial court’s decision

overruling his Petition for a Writ of Habeas Corpus and to the trial court’s decision

dismissing his civil complaint against various defendants. We initially note that Russell’s

brief fails to comply with App.R. 16, which governs briefs and requires specific

assignments of error. In his brief, Russell asserts that the victim in the domestic violence

case falsely accused him. He asserts, “Plaintiff’s Appeal of ‘Entry for Dismissal’ by the

Trial Court, case # 2014 CV 04969 comes from the restraints of my life and liberty to

appear at the June 29th, 2014 Civil Jury Trial.”      Russell asserts, “We pray for the

foregoing argument and reasons that this Court grant reliefs and remedies sought in the

stated Claim of unfair trial practices by the Trial Court for scheduling hearing and Trial

without the presence of this Plaintiff as said hearing to be heard * * * due to these
                                                                                           -7-


circumstances of ‘Prison Term’ beyond my capacity and control.” (Sic). We construe

Russell’s brief to argue as assigned errors that the trial court erred in failing to grant his

petition for a writ of habeas corpus and in dismissing his cause of action.

       {¶ 11} The State responds as follows:

              * * * Appellant failed to originally name the correct party in the Writ

       of Habeas Corpus and even if he did name the correct party, Appellant has

       subsequently been released from incarceration and the issue is moot.

       Secondly, the lower court’s decision to dismiss Appellant’s civil suit for

       failing to prosecute was proper because Appellant was on notice of the final

       pretrial conference and he failed to appear. Accordingly, for all of the

       foregoing reasons, the Montgomery County Sheriff respectfully requests

       that this Court uphold the lower court’s decisions.

       {¶ 12} Regarding Russell’s habeas corpus petition, R.C. 2725.04 provides:

              Application for the writ of habeas corpus shall be by petition, signed

       and verified either by the party for whose relief it is intended, or by some

       person for him, and shall specify:

              (A) That the person in whose behalf the application is made is

       imprisoned, or restrained of his liberty;

              (B) The officer, or name of the person by whom the prisoner is so

       confined or restrained; or, if both are unknown or uncertain, such officer or

       person may be described by an assumed appellation and the person who

       is served with the writ is deemed the person intended;

              (C) The place where the prisoner is so imprisoned or restrained, if
                                                                                            -8-


       known;

              (D) A copy of the commitment or cause of detention of such person

       shall be exhibited, if it can be procured without impairing the efficiency of

       the remedy; or, if the imprisonment or detention is without legal authority,

       such fact must appear.

       {¶ 13} R.C. 2725.03 governs jurisdiction for the discharge of inmates and provides:

              If a person restrained of his liberty is an inmate of a state benevolent

       or correctional institution, the location of which is fixed by statute and at the

       time is in the custody of the officers of the institution, no court or judge other

       than the courts or judges of the county in which the institution is located has

       jurisdiction to issue or determine a writ of habeas corpus for his production

       or discharge. Any writ issued by a court or judge of another county to an

       officer or person in charge at the state institution to compel the production

       or discharge of an inmate thereof is void.

       {¶ 14} The “proper respondent” in habeas corpus “is the individual who is directly

responsible for keeping the petitioner in custody.” Spears v. DeWeese, 102 Ohio St.3d

202, 2004-Ohio-2364, 808 N.E.2d 389, ¶ 4. As the trial court noted, Russell did not

allege that any of the defendants in Case No. 2014 CV 4969 had custody of him, and at

the time Russell was in the custody of the Warden of Noble Correctional Institution, in

Caldwell, Noble County, Ohio, as reflected in his petition. Since the trial court lacked

jurisdiction to consider Russell’s petition, the court correctly dismissed it.

       {¶ 15} Regarding the dismissal of Russell’s complaint, Civ.R. 41(B)(1) provides:

“Where the plaintiff fails to prosecute, or comply with these rules or any court order, the
                                                                                          -9-


court upon motion of a defendant or on its own motion may * * * dismiss an action or

claim.”     In Harden v. City of Dayton, 2d Dist. Montgomery No. 22072, 2008-Ohio-1599,

Charles Harden appealed from an order dismissing Harden’s action for failure to

prosecute against Andrew Clark, a City of Dayton police officer who pursued and

apprehended Harden after a robbery. Id., ¶ 1. “Harden pled guilty to use of a firearm

during a crime of violence and received a 15-year prison sentence,” and he was

incarcerated in a federal prison in Pennsylvania. Id., ¶ 5. Represented by an attorney,

“Harden commenced an action (Case No. 05-CV-0122) against Clark and the City of

Dayton, alleging a 42 U.S.C. § 1983 excessive force violation and a 42 U.S.C. § 1983

substantive due process violation.”       Id., ¶ 6.   The City was dismissed and Harden

voluntarily dismissed his action against Clark.        Id.   Harden subsequently refiled a

second action pro se against the City and Clark. Id., ¶ 7. Harden filed a motion to

compel discovery. Id., ¶ 8. The trial court issued an order scheduling a final pretrial

conference and a jury trial, and the order included identical language to that reflected in

the pre-trial order issued herein regarding dismissal pursuant to Civ.R. 41(B). Harden

filed a subsequent motion requesting the trial court to compel the City of Dayton to provide

Harden with discovery, which the City opposed.           Clark filed a motion for summary

judgment, which Harden opposed.

                On December 27, 2006, Harden requested a continuance of the trial

          date because he had not received the discovery that he sought. He also

          sought appointment of counsel. On January 9, 2007 Harden filed a motion

          for appoint of counsel. Among other things, Harden notified the trial court

          that he would not be able to attend the final pretrial conference or the jury
                                                                                        -10-


      trial because he is in prison and does not have an attorney. Harden stated

      that he needed an attorney to represent him at the final pretrial conference

      and to obtain necessary discovery. It appears that the trial court did not rule

      on Harden’s requests for a continuance and appointment of counsel.

Id., ¶ 14.   When Harden failed to appear at the pretrial conference, the trial court

dismissed Harden’s action for failure to prosecute. Id., ¶ 15.

      {¶ 16} This Court noted that the “decision to dismiss an action pursuant to Civ.R.

41(B)(1) is within the sound discretion of the trial court. * * *.” Id., ¶ 24. “ ‘Abuse of

discretion’ has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. * * * A decision is unreasonable if there is no sound reasoning process

that would support that decision. * * * .” Bohme v. Bohme, 2d Dist. Montgomery No.

26021, 2015-Ohio-339, ¶ 11.

      {¶ 17} This Court’s further analysis in Harden is as follows:

              In Laguta v. Serieko (1988), 48 Ohio App.3d 266, 267, the Ninth

      District cautioned trial courts regarding the use of Civ.R. 41(B)(1) to dismiss

      actions involving pro se litigants who are incarcerated:

              “In situations where, as here, the plaintiff is unrepresented by

      counsel and incarcerated, the federal courts have ruled that trial courts

      should pursue avenues other than dismissal for want of prosecution in order

      to ensure that those claims so deserving be adjudicated on their merits.

      Poole v. Lambert (C.A.11, 1987), 819 F.2d 1025; Palmer v. Decatur (C.A.7,

      1987), 814 F.2d 426; Reynolds v. Foree (C.A.8, 1985), 771 F.2d 1179; Sisk

      v. United States (C.A.7, 1985), 756 F.2d 497; Holt v. Pitts (C.A.6, 1980),
                                                                                   -11-

619 F.2d 558; Heidelberg v. Hammer (C.A.7, 1978), 577 F.2d 429. If the

risks and expense involved in transporting the prisoner to the courthouse

are prohibitive, these courts have suggested a number of other alternatives

to dismissal including a bench trial in the prison, trial by depositions,

appointment of pro bono counsel to assist the plaintiff, postponement of

proceeding if the plaintiff's release is imminent, or dismissal without

prejudice leaving open the possibility of the plaintiff's refiling his case at a

later date.

       “We too recognize that civil actions filed by pro se prisoners provide

peculiar problems to our already overburdened trial courts. We therefore

borrow from our federal counterpart in urging trial courts to be ‘imaginative

and innovative’ in dealing with such cases. Poole, supra, at 1029. It must

always be kept in mind that the main objective of justice is to decide cases

on their merits. See Perotti, supra, 7 Ohio St.3d at 3-4, 7 OBR at 258, 454

N.E.2d at 953 (C. Brown, J., concurring). Thus, the trial court must consider

whether lesser sanctions would best serve this interest. Dukes v. Cole

(1985), 23 Ohio App.3d 65, 23 OBR 110, 491 N.E.2d 374.”

       We share the Ninth District's concerns, and agree that a dismissal

under Civ.R. 41(B)(1) for failure to prosecute should be a last resort in a

case like the one before us. Harden had requested discovery, appointment

of counsel, and continuances on multiple occasions. The trial court did not

rule on these requests. Although Harden does not have a constitutional right

to counsel in a civil proceeding, the trial court could have considered the
                                                                                     -12-

appointment of pro bono counsel. Freeman v. Kimble-Freeman (Nov. 29,

2001), Cuyahoga App. No. 79287. Such counsel could guide Harden

through the process of filing a writ of habeas corpus ad testificandum to

request the court's permission to appear in person at the civil proceedings.

Brown v. Brown, Mahoning App. No. 02 CA 77, 2003-Ohio-4878, ¶ 14, citing

In re Colburn (1987), 30 Ohio St.3d 141, 142.

       At a minimum, prior to invoking the harsh sanction of dismissal under

Civ.R. 41(B)(1), the trial court should have considered alternative, less

punitive ways to address the logistical problems associated with a pro se

litigant who is incarcerated in an out-of-state prison. Although an

incarcerated litigant has no absolute right to be present for civil litigation,

the trial court has many options it may explore before it arbitrarily dismisses

an action for failure of an incarcerated litigant to appear. In re Hall (1999),

135 Ohio App.3d 1, 6, citing Drescher v. Summers (1986), 30 Ohio App.3d

271. The record does not reflect that the trial court explored such options

prior to dismissing Harden's action. Therefore, we find that the trial court

abused its discretion in dismissing Harden's action for failure to prosecute

based solely on Harden's failure to appear.

       In reaching this conclusion, we express no opinion concerning the

merits of Harden's alleged violation of his civil rights or the truth of the facts

he alleged in his complaint. However, we are also mindful that courts

regularly tell persons who claim their constitutional rights were violated in

the course of an arrest that their available avenue of relief is a civil rights
                                                                                           -13-


       action. It would be more than ironic that such an action is then dismissed

       because an incarcerated pro se plaintiff fails to appear, when no alternative

       to his personal appearance has been explored.

Id., ¶ 27-32.

       {¶ 18} Pursuant to Harden, and expressing no opinion concerning the merits of

Russell’s allegations, we conclude that the trial court abused its discretion in dismissing,

with prejudice, Russell’s cause of action against the remaining defendants, namely Phil

Plummer, the State of Ohio, and the domestic violence victim, for failure to prosecute.

Russell requested “an alternative solution” to the pre-trial conference and his mandatory

appearance, suggesting with proper jail time credit, he would be released forthwith and

would secure representation by counsel. Having only been sentenced to a one-year

term, Russell’s release from prison was imminent. He alleged civil and constitutional

rights violations, and we find that the trial court erred in failing to consider the “number of

other alternatives to dismissal,” as set forth in Harden, and that a dismissal for failure to

prosecute should have been “a last resort.” Accordingly, the trial court’s order dismissing

Russell’s complaint against the remaining defendants is reversed, and the cause is

remanded for further proceedings consistent with this opinion. The trial court’s dismissal

of Russell’s habeas corpus petition is affirmed.

                                         ..........

FROELICH, J., concurs.

HALL, J., concurring and dissenting:

       {¶ 19} I agree that the trial court lacked jurisdiction to consider Appellant’s petition

for a writ of habeas corpus. However I conclude that the trial court did not abuse its
                                                                                        -14-


discretion by dismissing Appellant’s purported civil complaint for failure to prosecute,

although, in my view, the appropriate resolution should have been a dismissal without

prejudice given Russell’s incarceration.

      {¶ 20} In regard to the dismissal, I note that Appellant’s pro se “Civil Complaint” is

largely a protestation of his innocence and a complaint about the victim of his domestic

violence. Not only is it difficult to understand the nature of the complaint, the document

contains no prayer for relief. Furthermore, the record fails to show he filed a Pretrial

Statement as required by the April 30, 2015 pretrial order. With these additional factors,

it was not an abuse of discretion for the trial court to dismiss the complaint. However,

given the case law cited by the majority and the Appellant’s incarceration which was of

limited duration, the appropriate resolution was to have made the dismissal without

prejudice.

                                       ..........

Copies mailed to:

Eric T. Russell, Sr.
Anne M. Jagielski
Liza Luebke
John Musto
Laura Mariani
H.B.
Hon. Mary Katherine Huffman
