[Cite as State ex rel. Russell v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-4947.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

The State ex rel. Mark Russell,                         :

                 Relator,                               :

v.                                                      :                          No. 17AP-240

Ohio Department of                                      :                   (REGULAR CALENDAR)
Rehabilitation and Correction,
                                                        :
                 Respondent.
                                                        :



                                            D E C I S I O N

                                    Rendered on December 3, 2019


                 On brief: Mark Russell, pro se.

                 On brief: [Dave Yost], Attorney General, and Ina Avalon, for
                 respondent.

                                   IN MANDAMUS
                     ON OBJECTION TO THE MAGISTRATE'S DECISION

BRUNNER, J.
I. INTRODUCTION AND PROCEDURAL POSTURE
        {¶ 1} Relator, Mark Russell, an inmate at the Warren Correctional Institution,
brought this original action solely against the Ohio Department of Rehabilitation and
Correction ("ODRC"), requesting that this Court order ODRC to hold a use of force hearing
about allegations concerning actions taken by a corrections officer against Russell when he
was incarcerated at the Pickaway Correctional Institution. (Apr. 6, 2017 Petition at ¶ 1, 4-
6.)1 Russell also alleged in his petition that the corrections officer in question was "from
the Noble Correctional Institution" but was participating in a "shakedown" at the Pickaway


1Some of the paragraphs in the complaint are numbered and some are not. Paragraphs 4, 5, and 6 are not
numbered but sequentially follow numbered paragraph 3.
No. 17AP-240                                                                              2


Correctional Institution. Id. at ¶ 4-5. Russell alleged in his petition that this Court has
jurisdiction under Article IV, Section 3(B)(1)(b) of the Ohio Constitution. Id. at ¶ 3.
       {¶ 2} We referred Russell's mandamus petition to a magistrate in accordance with
Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. (Apr. 24, 2017 Entry.)
On May 8, 2017, ODRC moved to dismiss this action, arguing that it should have been
brought in the county where the events occurred—in this case, Pickaway County. (May 8,
2017 Mot. to Dismiss at 4-5.) ODRC argued that we lacked jurisdiction because of the
incorrect venue of the action. Id.
       {¶ 3} On June 30, 2017, after the parties had fully briefed ODRC's motion to
dismiss, the magistrate issued a decision, including findings of facts and conclusions of law
(appended to this decision). The magistrate found that Russell was attempting to compel
either Pickaway Correctional Institution (where the alleged action occurred) or Warren
Correctional Institution (where Russell is currently incarcerated), to conduct a use of force
hearing based on this alleged incident. As those locations and the relevant parties to the
case are outside this appellate district, the magistrate determined that we lack territorial
jurisdiction over this mandamus action and recommended that we dismiss the petition.
       {¶ 4} Russell filed a timely objection to the magistrate's decision. (July 13, 2017
Obj.) In that objection, he disputed the magistrate's jurisdictional finding. Id. Russell also
observed that his mandamus action was brought against ODRC, which is located within the
territorial boundaries of this appellate district. Id.
II. DISCUSSION
       {¶ 5} Civ.R. 53(D)(4)(b), concerning matters heard by magistrates, provides
"[w]hether or not objections are timely filed, a court may adopt or reject a magistrate's
decision in whole or in part, with or without modification. A court may hear a previously-
referred matter, take additional evidence, or return a matter to a magistrate." Under this
rule there are two different standards of review:
              If no timely objections are filed, the court may adopt a
              magistrate's decision, unless it determines that there is an error
              of law or other defect evident on the face of the magistrate's
              decision.

Civ. R. 53(D)(4)(c).
              If one or more objections to a magistrate's decision are timely
              filed, the court shall rule on those objections. In ruling on
No. 17AP-240                                                                                             3


                objections, the court shall undertake an independent review as
                to the objected matters to ascertain that the magistrate has
                properly determined the factual issues and appropriately
                applied the law.

Civ. R. 53(D)(4)(d). Because Russell filed timely objections we use the latter standard of
review and "undertake an independent review as to the objected matters." Id.
    A. Whether this Court has Jurisdiction
        {¶ 6} The Constitution of Ohio provides for the existence of "compact appellate
districts in each of which there shall be a court of appeals." Ohio Constitution, Article IV,
Section 3(A). The Constitution grants each court of appeals territorially limited power to
"review and affirm, modify, or reverse judgments or final orders of the courts of record
inferior to the court of appeals within the district." (Emphasis added.) Ohio Constitution,
Article IV, Section 3(B)(2). The "compact appellate district" of this court "within" which it
enjoys appellate jurisdiction, is comprised wholly and completely of Franklin County. R.C.
2501.01(J); Ohio Constitution, Article IV, Section 3. Thus, it is clear that, as a matter of
Constitution and statute, our appellate jurisdiction is territorially limited on appeals to
those from courts in Franklin County. See also Cheap Escape Co. v. Haddox, L.L.C., 120
Ohio St.3d 493, 2008-Ohio-6323, ¶ 5-6, fn. 2 (noting that territorial jurisdiction refers to
the ability of a court to act in a specific geographic area).
        {¶ 7} Though our appellate jurisdiction is limited territorially, the Constitution
does not expressly limit our territorial jurisdiction in cases over which this Court exercises
original jurisdiction. The Ohio Constitution simply provides "[t]he courts of appeals shall
have original jurisdiction in the following: (a) Quo warranto; (b) Mandamus; (c) Habeas
corpus; (d) Prohibition; (e) Procedendo; (f) In any cause on review as may be necessary to
its complete determination." Ohio Constitution, Article IV, Section 3(B)(1). In habeas
corpus actions, an Ohio statute entitled "[t]erritorial jurisdiction of courts" limits
"jurisdiction to issue or determine a writ of habeas corpus" to courts and judges in "the
county in which the [relevant] institution is located." R.C. 2725.03. But the mandamus
statutes contain no similar limitation. R.C. 2731.01 et seq.2                    Thus, the text of the

2There is a general provision that seems intended to apply to multi-county districts providing that a court of
appeals "shall hear each cause in the county in which the cause originated, unless, for good cause shown, the
court of appeals determines that the cause may be heard in another county of the district." R.C. 2501.05. The
only time this provision has been interpreted in Ohio, it has been determined to provide instructions on venue
selection, not jurisdiction. State ex rel. Rosenberger v. Compher, 62 Ohio App.3d 51, 53-54 (4th Dist.1989).
No. 17AP-240                                                                                       4


Constitution and Ohio statutes imply that all Ohio courts of appeal have jurisdiction over
all original mandamus actions. Which of the appellate districts is the appropriate district
for an original action is therefore a question of venue (a choice between courts that all have
concurrent jurisdiction), to be resolved according to Civ.R. 3. See Cheap Escape at ¶ 10-11
(noting the differences between jurisdiction and venue).
       {¶ 8} Many courts have found that when a mandamus action targets entities
outside the territorial boundaries of the appellate district, the problem is not a jurisdictional
problem, but a venue problem. State ex rel. Miles v. Timmerman-Cooper, 8th Dist. No.
91396, 2008-Ohio-3811, ¶ 1-4; State ex rel. Harris v. Mausser, 8th Dist. No. 91630, 2008-
Ohio-4588, ¶ 2-4; State ex rel. Bealler v. Ohio Adult Parole Auth., 7th Dist. No. 99-CO-45,
1999 WL 669497, 1999 Ohio App. LEXIS 3911, *1-2 (Aug. 23, 1999); State ex rel. Robertson
v. Kinkela, 7th Dist. No. 98 CA 118, 1999 WL 342771, 1999 Ohio App. LEXIS 2471, *2-3
(May 27, 1999); State ex rel. Davis v. Ghee, 126 Ohio App.3d 569, 570 (7th Dist.1998); State
ex rel. Bickerstaff v. Ohio Adult Parole Auth., 4th Dist. No. 1667, 1987 WL 17290, 1987 Ohio
App. LEXIS 8810, *1-3 (Sept. 11, 1987); State ex rel. Cook v. Zimpher, 11 Ohio App.3d 187,
188-89 (8th Dist.1983).
       {¶ 9} There are also, however, some appellate courts that have stated that they lack
jurisdiction in mandamus over public officials who are not located within their district.
State ex rel. Wright v. Ohio Dept. of Rehab. & Corr., 8th Dist. No. 103736, 2016-Ohio-819,
¶ 5; Pointer v. Ross Corr. Warden, 8th Dist. No. 103376, 2015-Ohio-4692, ¶ 6; State ex rel.
Simpson v. Jackson, 10th Dist. No. 08AP-241, 2008-Ohio-4357, ¶ 12; Dewey v. State, 11th
Dist. No. 2006-A-0012, 2007-Ohio-471, ¶ 7-8.3 This line of cases disclaiming jurisdiction
is problematic, however, as it appears to be traceable to the Eleventh District Court of
Appeals decision of State ex rel. Hill v. Geisler, 11th Dist. No. 2005-P-0048, 2005-Ohio-
6903. In Geisler, a per curiam opinion, the Eleventh District found that an inmate had
failed to follow the mandates of R.C. 2969.25 requiring him to file an affidavit of indigency
detailing the status of his prison account and "[o]n this basis alone," decided that "the
petition * * * in this matter [wa]s subject to dismissal." Geisler at ¶ 7. Yet Geisler, rather
than conclude its discussion at that point, engaged in an analysis analogizing mandamus


3Some cases have muddied this distinction somewhat. Both Bealler and Dewey, use the terms "jurisdiction"
and "venue" without appearing to distinguish between them. Dewey at ¶ 7; Bealler at *1-2.
No. 17AP-240                                                                              5


actions to habeas corpus actions. Id. at ¶ 8-10. That is, Geisler concluded that just as a
habeas corpus petition must be brought in the county where the correctional institution is
located, a mandamus case seeking to compel action by prison officials must be brought in
the county where the prison is located because appellate courts "lack the authority" to issue
orders to officials located beyond the courts' "territorial jurisdiction,"       ignoring the
distinction between the statutory and constitutional provisions for original actions
governing habeus corpus and mandamus. Id. at ¶ 9-10. This inattention to the statutory
differences between mandamus and habeus corpus, underpinned by the provision of
general power by the state constitution, has misdirected subsequent courts in the search
for proper analysis of jurisdiction and venue questions in mandamus actions. Id. in passim;
compare R.C. 2725.03 with R.C. 2731.01 et seq. Geisler's conclusions are therefore flawed
and should not have been followed.
       {¶ 10} In just one published decision of this Court have we confronted the question
of what to do when a writ of mandamus is sought to order actions by entities outside the
territorial boundaries of the Tenth Appellate District. Simpson at ¶ 12. In that case, without
any analysis, and citing only to Geisler, we concluded that we lacked jurisdiction and
dismissed. Id. Given the problems with Geisler and Simpson's complete reliance on
Geisler, the question is whether we should now overrule Simpson.
       {¶ 11} The Supreme Court of Ohio has explained that a prior decision "may be
overruled where (1) the decision was wrongly decided at that time, or changes in
circumstances no longer justify continued adherence to the decision, (2) the decision defies
practical workability, and (3) abandoning the precedent would not create an undue
hardship for those who have relied upon it." Westfield Ins. Co. v. Galatis, 100 Ohio St.3d
216, 2003-Ohio-5849, ¶ 48. Despite the fact that Galatis, by its terms, applied only to the
standard for the Supreme Court to overrule itself, we have applied it when considering
whether to overrule our own decisions also. State v. Burton, 10th Dist. No. 06AP-690,
2007-Ohio-1941, ¶ 22-29. "However, because we are concerned here with a procedural, as
opposed to a substantive, rule, stare decisis plays a reduced role, and we need not apply the
Galatis standard." Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141
Ohio St.3d 542, 2015-Ohio-241, ¶ 10, citing State v. Silverman, 121 Ohio St.3d 581, 2009-
Ohio-1576, ¶ 31-33. Rather, we instead recognize " '[i]t does no violence to the legal doctrine
No. 17AP-240                                                                                6


of stare decisis to right that which is clearly wrong. It serves no valid public purpose to allow
incorrect opinions to remain in the body of our law.' " Galatis at ¶ 60, quoting State ex rel.
Bd. of Cty. Commrs. of Lake Cty. v. Zupancic, 62 Ohio St.3d 297, 300 (1991).
          {¶ 12} Because the holding in Geisler was dicta, because it failed to consider the
extent of the Ohio Constitution's grant of original jurisdiction to appellate courts, and
because it inappropriately analogized habeas corpus actions (where there is a statutory
territorial limitation) to mandamus actions (where there is none), we find that we should
not have relied on Geisler. We accordingly overrule Simpson, 2008-Ohio-4357. We also
note that the inmate in Simpson named the warden of the Warren Correctional Institution
as the respondent, whereas in this case, Russell has sought a writ only against ODRC.
Compare Apr. 6, 2017 Petition with Simpson at ¶ 1. Thus, even if Simpson were good law,
it would not prevent us from having jurisdiction to issue a writ to ODRC ordering ODRC to
compel action by the appropriate out-of-district prison officials.
   B. The Remedy to be Applied
          {¶ 13} In light of the conclusions above, we interpret ODRC's argument that the case
should have been brought in the county where the events occurred (Pickaway County) as a
request for a change of venue. (May 8, 2017 Mot. to Dismiss at 4-5.) Although the party
sued in this case (ODRC) is within Franklin County, we recognize that the caselaw is
generally in agreement that a case of this kind should be heard in the county where the
events occurred. Miles at ¶ 1-4; Harris at ¶ 2-4; Robertson at *2-3; Davis at 570; Bickerstaff
at *1-3; Cook at 188-89. Thus, though we do not lack jurisdiction, we find the location
where the events occurred is a more appropriate venue for this action to be heard. We
accordingly transfer the case to the appellate district encompassing Pickaway Correctional
Institution—the Fourth District Court of Appeals. R.C. 2501.01(D); Civ.R. 3(C)(3) and
(D)(1).
III. CONCLUSION
          {¶ 14} Under the Ohio Constitution we, and other Ohio appellate districts, have
original jurisdiction over actions seeking writs of mandamus. Although Russell sued ODRC
and only ODRC, we find, on motion of ODRC, that the more appropriate venue in which to
hear this action is the county where it occurred—Pickaway County. Accordingly, we decline
No. 17AP-240                                                                             7


to adopt the decision of the magistrate dismissing the action for want of jurisdiction and
instead we transfer the case to the Fourth District Court of Appeals.
                                                         Magistrate decision not adopted;
                                                                   case transferred to the
                                                         Fourth District Court of Appeals.
                               KLATT, P.J., concurs.
                         SADLER, J., concurs in judgment only.

SADLER, J., concurring in judgment only.
       {¶ 15} I agree with the majority that jurisdiction exists in this case and that this
matter should be transferred to the Fourth District Court of Appeals based on venue
principles. However, as noted by the majority, ODRC is the only named respondent;
therefore, this case is factually distinguishable from State ex rel. Simpson v. Jackson, 10th
District No. 08AP-241, 2008-Ohio-4357, and not applicable to the facts of this case.
Accordingly, in my view, the majority need not address Simpson in resolving this matter,
and I concur in judgment only.
No. 17AP-240                                                                          8


                                     APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Mark Russell,               :

               Relator,                       :

v.                                            :                    No. 17AP-240

Ohio Department of                            :               (REGULAR CALENDAR)
Rehabilitation and Correction,
                                              :
               Respondent.
                                              :



                           MAGISTRATE'S DECISION

                                  Rendered on June 30, 2017



               Mark Russell, pro se.

               Michael DeWine, Attorney General, and Ina Avalon, for
               respondent.


                                    IN MANDAMUS
                          ON RESPONDENT'S MOTION TO DISMISS

       {¶ 16} Relator, Mark Russell, has filed this original action, requesting this court
issue a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and
Correction ("ODRC"), to hold a Use of Force hearing regarding allegations relator made
concerning the action taken by an officer at the Noble Correctional Institution.
Findings of Fact:
       {¶ 17} 1. Relator is an inmate currently incarcerated at Warren Correctional
Institution.
No. 17AP-240                                                                             9


       {¶ 18} 2. In his mandamus complaint, relator alleges that while he was at Pickaway
Correctional Institution, a correction officer from the Noble Correctional Institution
deployed a chemical agent to his face during a shakedown and that he is entitled to a Use
of Force hearing based on this incident.
       {¶ 19} 3. Respondent has filed a motion to dismiss arguing that this court does not
have territorial jurisdiction over this action because the alleged incident took place at the
Pickaway Correctional Institution, which is located within the territorial boundaries of
Pickaway County, not Franklin County.
       {¶ 20} 4. Relator has filed a motion in opposition to respondent's motion to dismiss
arguing that Franklin County is the proper county because ultimately, ODRC is responsible
for the actions of corrections officers and ensuring prisons afford prisoners hearings.
Relator also filed a motion to strike the submission of State ex rel. Russell v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 17AP-125 (June 20, 2017)(memorandum decision) to a panel
of this court.
       {¶ 21} 5. The matter is currently before the magistrate.
Conclusions of Law:
       {¶ 22} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion to dismiss and deny relator's motion to strike.
       {¶ 23} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the
court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
       {¶ 24} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not subject
to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal duty by
the respondent and the lack of an adequate remedy at law for relator with sufficient
particularity to put the respondent on notice of the substance of the claim being asserted
No. 17AP-240                                                                            10


against it, and it appears that relator might prove some set of facts entitling him to relief.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (1995).
       {¶ 25} Respondent correctly argues that this court lacks territorial jurisdiction over
this mandamus action because, although relator named ODRC as a party, he is actually
attempting to compel either Pickaway Correctional Institution (where the alleged action
occurred) or Warren Correctional Institution (where he is currently incarcerated) to
conduct a Use of Force hearing based on this incident. Any hearing would be conducted at
either Pickaway Correctional Institution or Warren Correctional Institution. State ex rel.
Simpson v. Jackson, 10th Dist. No. 08AP-241, 2008-Ohio-4357. Neither is located in
Franklin County. Further, relator's motion to strike was not filed in the proper case and,
regardless, on June 20, 2017, this court issued its decision in Case No. 17AP-125.
       {¶ 26} Accordingly, for the above reasons, it is the magistrate's decision this court
should deny relator's motion to strike and grant respondent's motion to dismiss this
mandamus action.
                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                              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).
