[Cite as Fields v. Bickle, 2014-Ohio-2634.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



GERALD FIELDS                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer P.J.
        Plaintiff-Appellant                   :      Hon. Patricia A. Delaney, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
TODD A. BICKLE, CLERK                         :      Case No. CT2014-0002
                                              :
        Defendant-Appellee                    :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CH2013-0239




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 16, 2014




APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

GERALD FIELDS, Pro Se                                MARK LANDERS
Inmate No. 617-709                                   JULIA R. BAXTER
Franklin Medical Center                              Two Miranova Place
P.O. Box 23658                                       Suite 700
1990 Harmon Avenue                                   Columbus, OH 43215
Columbus, OH 43223
Muskingum County, Case No. CT2014-0002
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Farmer, P.J.

       {¶1}    Appellant, Gerald Fields, is an inmate, currently in the Franklin Medical

Center. He was convicted of trafficking in drugs and permitting drug abuse (Case No.

CR2009-0166).      On May 22, 2012, appellant was appointed counsel to pursue an

appeal. On May 25, 2012, appellant submitted for filing with the Muskingum County

Clerk of Courts, appellee herein, Todd Bickle, a motion for interim determination to

appellate jurisdiction. Appellee did not file the motion as it did not come from appellant's

appointed counsel, and instead forwarded the motion to said counsel.

       {¶2}    On May 23, 2013, appellant filed a complaint against appellee for failing to

file the motion. Appellee filed a motion to dismiss the complaint on June 18, 2013. By

entry filed December 12, 2013, the trial court granted the motion and dismissed the

complaint, finding appellee was immune in his official and individual capacities.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶4}    "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREBY

OFFENDING DUE PROCESS WHEN IT CONCLUDED THAT DEFENDANT WAS/IS

'EXEMPT' FROM LIABILITY UNDER O.R.C. § 2744.03(A)(6) FOR ACTIONS OR

OMISSIONS MANIFESTLY OUTSIDE THE SCOPE OF DEFENDANT'S OFFICIAL

DUTIES, RESPONSIBILITIES AND EMPLOYMENT."

                                              I

       {¶5}    Appellant claims the trial court erred in granting appellee's Civ.R. 12(B)(6)

motion to dismiss. We disagree.
Muskingum County, Case No. CT2014-0002
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      {¶6}   Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228 (1990). 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

County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo

analysis, we must accept all factual allegations of the complaint as true and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber,

57 Ohio St.3d 56 (1991).

      {¶7}   In its entry filed December 12, 2013, the trial court specifically found the

allegations of the complaint were within the duties and governmental function of the

clerk of courts under R.C. 2303.08 which states the following:



             The clerk of the court of common pleas shall indorse on each

      pleading or paper in a cause filed in the clerk's office the time of filing,

      enter all orders, decrees, judgments, and proceedings of the courts of

      which such individual is the clerk, make a complete record when ordered

      on the journal to do so, and pay over to the proper parties all moneys

      coming into the clerk's hands as clerk. The clerk may refuse to accept for

      filing any pleading or paper submitted for filing by a person who has been

      found to be a vexatious litigator under section 2323.52 of the Revised

      Code and who has failed to obtain leave to proceed under that section.
Muskingum County, Case No. CT2014-0002
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       {¶8}   It necessarily follows that the filing of motions is a governmental function

and the principles of sovereign immunity apply.           See, R.C. 2744.01(C) and R.C.

2744.02(A). As noted by the trial court, none of the exceptions to immunity applies sub

judice. See, R.C. 2744.02(B)(1)-(5).

       {¶9}   R.C. 2744.03 governs defenses and immunities, and states the following

in pertinent part:



              (A) In a civil action brought against a political subdivision or an

       employee of a political subdivision to recover damages for injury, death, or

       loss to person or property allegedly caused by any act or omission in

       connection with a governmental or proprietary function, the following

       defenses or immunities may be asserted to establish nonliability:

              (6) In addition to any immunity or defense referred to in division

       (A)(7) of this section and in circumstances not covered by that division or

       sections 3314.07 and 3746.24 of the Revised Code, the employee is

       immune from liability unless one of the following applies:

              (a) The employee's acts or omissions were manifestly outside the

       scope of the employee's employment or official responsibilities;

              (b) The employee's acts or omissions were with malicious purpose,

       in bad faith, or in a wanton or reckless manner;

              (c) Civil liability is expressly imposed upon the employee by a

       section of the Revised Code. Civil liability shall not be construed to exist

       under another section of the Revised Code merely because that section
Muskingum County, Case No. CT2014-0002
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       imposes a responsibility or mandatory duty upon an employee, because

       that section provides for a criminal penalty, because of a general

       authorization in that section that an employee may sue and be sued, or

       because the section uses the term "shall" in a provision pertaining to an

       employee.



       {¶10} The sole act complained of is that appellee refused to file appellant's pro

se motion because he had an appointed counsel of record. We note this motion was

attempted to be filed in this court, as it is entitled "In the Fifth Appellate District Court for

Muskingum County," Case No. CT 2012-0030 (a prior appeal). As the duly elected

Clerk of Courts for the Muskingum County Common Pleas Courts, appellee has a

statutory duty to act as clerk for this court for actions filed in appellee's county. See,

R.C. 2303.03 and Loc.R. 2(A) of the Fifth Appellate Judicial District.

       {¶11} Appellant also appears to argue that the trial court's decision went outside

the four corners of the complaint. As noted, the trial court's decision rested on the filing

of papers as a governmental function and immunity applied, unless there are allegations

of acts or omissions committed with "malicious purpose, in bad faith, or in a wanton or

reckless manner." We find, as did the trial court, that appellant has not alleged any

facts in the complaint to justify that appellee's actions were done with malicious

purpose, in bad faith, or in a wanton or reckless manner. Appellant alleged in his

complaint that pursuant to his discretion, appellee forwarded the motion to his counsel

of record, and appellant acknowledged that his attorney responded to him.                  See,

Complaint at 6 and attached letter from Attorney David Sams. Although the terms
Muskingum County, Case No. CT2014-0002
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"wanton," "maliciously," "recklessly," and "bad faith" are sprinkled throughout the

complaint, the pleading speaks in "negligence."

       {¶12} We further note we do not see any reason for the motion for interim

determination to appellate jurisdiction as the determination of appellate jurisdiction rests

solely in the de novo review by this court pending an appeal once briefing is complete

and no damages could inure to appellant.

       {¶13} Upon review, we find the trial court did not err in granting the motion to

dismiss.

       {¶14} The sole assignment of error is denied.

       {¶15} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




SGF/sg 519
