[Cite as State ex rel. Mango v. Dept. of Rehab. & Corr., 2019-Ohio-4774.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Raymond Mango,                           :

                 Relator,                              :

v.                                                     :                       No. 18AP-945

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




                                            D E C I S I O N

                                   Rendered on November 21, 2019


                 On brief: Raymond Mango, pro se.

                 On brief: Dave Yost, Attorney General, and Christine E.
                 Mahy, for respondent.

                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
        {¶ 1} In this original action, relator, Raymond Mango, requests a writ of
mandamus ordering respondent, Ohio Adult Parole Revocation Hearing Committee, a
subdivision of Ohio Department of Rehabilitation and Correction ("respondent"), to
reinstate his parole or grant him a new revocation hearing with counsel and his witness
present. Respondent filed a motion to dismiss.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate recommends this court
grant respondent's motion to dismiss and dismiss this action.
No. 18AP-945                                                                                 2

I. Relator's Objections
       {¶ 3} Beyond the 14-day timeline outlined in Civ.R. 53, but with leave of this court,
relator filed a motion in opposition of the magistrate's recommendation to dismiss, which
we construe as objections to the magistrate's decision. Relator objects to the magistrate's
recommendation and states that such recommendation "[1] is in fact 'contrary' to the
complaint within the submitted 'Mandamus' [and] [2] shows no merits (legally) why such
Mandamus should be 'dismissed' in favor of the Respondents." (Relator's Mot. in Opp. of
Magistrate's Recommendation at 2.) In support, relator argues: (1) the magistrate erred in
finding that relator was provided the opportunity to cross-examine witnesses and in not
ordering respondent to vacate its finding that relator violated his parole by causing or
attempting to cause physical harm to Gwendolyn Jarrett because: (a) respondent relied on
hearsay evidence submitted by police officers, (b) Jarrett told the investigating detective
she lied to the arresting officers because she was upset with relator as he was trying to break
up with her, (c) relator was never charged with domestic violence in a court of law, and
(d) Jarrett was not given an opportunity to be present at the parole hearing; (2) the
magistrate erred in not ordering respondent to vacate its finding that relator violated his
parole by failing to comply with respondent's special condition that he not change his
residence without prior approval from respondent because: (a) respondent never
addressed the same at the hearing, (b) respondent relied on hearsay evidence submitted by
police officers, and (c) relator's sister now presents an affidavit to support a finding that
relator never changed his residence; and (3) the magistrate erred in not ordering
respondent to hold a new evidentiary hearing.
       {¶ 4} In State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545,
548 (1992), the court outlined the criteria for granting a motion to dismiss for failure to
state a claim in a mandamus complaint:
              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. Assn. for the Defense of the Washington Local
              School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117, 537 N.E.2d
              1292, 1293. Thus, the movant may not rely on allegations or
              evidence outside the complaint; otherwise, the motion must be
              treated, with reasonable notice, as a Civ.R. 56 motion for
              summary judgment. Civ.R. 12(B); State ex rel. Natalina Food
              Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio St.3d 98, 99,
              562 N.E.2d 1383, 1384. Even then, only certain forms of
              evidence may be submitted to support the motion. Civ.R.
              56(C).
No. 18AP-945                                                                             3


              The standard for reviewing the sufficiency of a mandamus
              complaint was stated in State ex rel. Alford v. Willoughby
              (1979), 58 Ohio St.2d 221, 223-224, 12 O.O.3d 229, 230, 390
              N.E.2d 782, 785:

              "In construing a complaint upon a motion to dismiss for failure
              to state a claim, the material allegations of the complaint are
              taken as admitted. Jenkins v. McKeithen (1969), 395 U.S. 411,
              421 [89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416]. [All reasonable
              inferences must also be drawn in favor of the nonmoving party.
              Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192,
              532 N.E.2d 753, 756; Byrd v. Faber (1991), 57 Ohio St.3d 56,
              60, 565 N.E.2d 584, 589.] Then, before the court may dismiss
              the complaint, '* * * it must appear beyond doubt from the
              complaint that the plaintiff can prove no set of facts entitling
              him to recovery. * * *' O'Brien v. University Community
              Tenants Union (1975), 42 Ohio St.2d 242 [71 O.O.2d 223, 327
              N.E.2d 753].

              "In order to establish a claim in mandamus, it must be proved
              that there exists a clear legal duty to act on the part of a public
              officer or agency, and that the relator has no plain and adequate
              remedy in the ordinary course of the law. State, ex rel. Pressley,
              v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141, 228
              N.E.2d 631], paragraph one of the syllabus. A complaint in
              mandamus states a claim if it alleges the existence of the legal
              duty and the want of an adequate remedy at law with sufficient
              particularity so that the respondent is given reasonable notice
              of the claim asserted."

              Accord State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77,
              80-81, 537 N.E.2d 641, 644-645, and State ex rel. Baran v.
              Fuerst (1990), 55 Ohio St.3d 94, 96-97, 563 N.E.2d 713, 715-
              716.

       {¶ 5} Furthermore, under Civ.R. 12(B)(6), a respondent is not permitted to support
its motion to dismiss for failure to state a claim by relying on anything outside the
complaint. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d
94, 96 (1995). Here, respondent did exactly that by pointing not only to the complaint but
also to documents which relator attached to his complaint to support the motion to dismiss.
Likewise, the magistrate relied on the complaint and attached documents to make findings
of fact and conclusions of law.
       {¶ 6} The Supreme Court of Ohio has stated that material incorporated into a
complaint may be considered as part of the complaint for purposes of determining a Civ.R.
No. 18AP-945                                                                                             4

12(B)(6) motion to dismiss. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn.,
72 Ohio St.3d 106, 109 (1995); State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio
St.3d 247, 249 (1997). However, recently, in State ex rel. Washington v. D'Apolito, 156
Ohio St.3d 77, 2018-Ohio-5135, the Supreme Court also stated "[a] court is not required to
accept allegations in a complaint as true when they are contradicted by documents attached
to the complaint." Id. at ¶ 10. The Supreme Court further cautioned courts to refrain, at
the motion-to-dismiss stage, from weighing the facts, making inferences against the non-
moving party and rejecting a relator's allegations as false. Id. at ¶ 11. Finally, the court
stated that a Civ.R. 12(B)(6) dismissal based on the merits is unusual and should be granted
with caution.
        {¶ 7} With this in mind, after carefully reviewing the documents1 attached to the
complaint, we cannot determine relator failed to state a claim without weighing the
evidence and drawing inferences against relator.
        {¶ 8} First, we address relator's objection to the magistrate's dismissal of his claim
that he was not provided the opportunity to cross-examine witnesses because Jarrett was
not subpoenaed (whether by his counsel or respondent). The magistrate found Jarrett was
subpoenaed, the subpoena was hand-delivered to her address, and Jarrett did not appear.
(Appended Mag. Dec. at ¶ 16, 18, 33-34.) The magistrate acknowledged, however, that
relator submitted with his complaint a letter from Jarrett stating that she never received
notice of the hearing and that the letter "is contradicted by the evidence which
demonstrates otherwise." (Appended Mag. Dec. at ¶ 34.) The existence of contradictory
evidence in the complaint and attachments thereto, necessarily required a weighing of the
evidence to make the findings noted above. Such weighing is not permitted at the motion-
to-dismiss stage. Accordingly, we sustain relator's objection as to this claim.
        {¶ 9} Second, we address relator's objection to the magistrate's dismissal of his
claim that respondent relied on hearsay to find that he violated the address rule. In support
of his argument, relator points to State ex rel. Hines v. Ohio Parole Bd., 10th Dist. No.
95APE05-623 (Dec. 5, 1995). In Hines, this court held that "hearsay is not, under the due
process guarantees set forth in Morrissey [v. Brewer, 408 U.S. 471 (1972)], necessarily
inadmissible as it would be in a fully formalized criminal prosecution at trial." In Hines,



1 The documents included, among other things, a copy of a subpoena sent to Jarrett, a notice of findings of

release violation hearing, a revocation order, a sanction receipt, and a police narrative.
No. 18AP-945                                                                                            5

this court further held that "in most cases hearsay cannot form the sole basis for revocation
of parole." Id., citing Columbus v. Lacy, 46 Ohio App.3d 161 (10th Dist.1988).
        {¶ 10} The magistrate found that one of two police officers was present to testify
and his bodycam video was introduced into evidence. (Appended Mag. Dec. at ¶ 18.) The
magistrate concluded the police officer "testified2 not only to the statements Jarrett made
to him, but also to his observations." (Emphasis added.) (Appended Mag. Dec. at ¶ 36.)
However, although the police narrative attached to the complaint suggests what the officer's
testimony might have been and what the bodycam video might depict, it cannot be
conclusively determined without a transcript, stipulated minutes or other evidence from
the administrative record or an App.R. 9(C) statement addressing the same. Furthermore,
even if we were to accept that the officer testified to his observations as the police narrative
suggests, such testimony, at this motion-to-dismiss stage, would not necessarily support a
finding that relator violated the order not to change his residence without prior approval of
respondent. The complaint and police narrative state that relator was trying to retrieve his
property, get his clothes which Jarrett had washed, and that relator and Jarrett had been
living together at this address for one and one-half years. But there was no indication that
an address other than Jarrett's was previously on record with respondent. Accordingly, we
sustain relator's objection as to this claim.
II. Conclusion
        {¶ 11} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate erred in
determining the pertinent facts and conclusions of law. We, therefore, sustain relator's
objections to the magistrate's decision. Accordingly, we remand this action and motion to
the magistrate for further proceedings3 consistent with law and this decision.
                                                                             Objections sustained;
                                                                   action remanded to magistrate.

                              SADLER and BRUNNER, JJ., concur.




2 Respondent argued the officers who were subpoenaed "would have been able to testify to their first-hand
observations that Relator had been residing with Jarrett." (Emphasis added.) (Respondent's Mot. to Dis. at
8.)
3 In the motion to dismiss, respondent argued another reason for dismissal which the magistrate did not

address, that relator's petition should have been brought as a habeas corpus petition. The magistrate may
consider this argument on remand.
No. 18AP-945                                                                            6

                                     APPENDIX

                           IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel. Raymond Mango,             :

               Relator,                      :

v.                                           :                   No. 18AP-945

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



                            MAGISTRATE'S DECISION

                                Rendered on May 21, 2019


               Raymond Mango, pro se.

               Dave Yost, Attorney General, and Christine E. Mahy, for
               respondent.


                                    IN MANDAMUS
                          ON RESPONDENT'S MOTION TO DISMISS

       {¶ 12} Relator, Raymond Mango, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, the Ohio Adult Parole Revocation Hearing
Committee, a subdivision of the Ohio Department of Rehabilitation and Correction
("respondent") to reinstate his parole or grant him a new revocation hearing with counsel
and his requested witness present.
Findings of Fact:
       {¶ 13} 1. Relator is an inmate currently incarcerated at the Marion Correctional
Institution.
No. 18AP-945                                                                                7

       {¶ 14} 2. On March 28, 2018, while on parole, police were dispatched to 7604
Sagamore because of a male needing assistance retrieving property. Upon arrival, relator
indicated that he and his girlfriend had "got into it" earlier in the day and he simply wanted
to grab his clothes and leave. The officers knocked on the door and spoke with Gwendolyn
Jarrett who immediately informed police she would not allow relator to come inside and
indicated that he had hit her. The police noticed what appeared to be the beginnings of a
small contusion on her lip and minor swelling on the side of her face. Initially, relator
insisted he did not touch Jarrett; however, he ultimately admitted he pushed her. At that
time, relator was placed in handcuffs. Jarrett came outside, indicated she did not want
relator to go back to jail, and stated she had fallen down the stairs. Relator was taken into
custody.
       {¶ 15} 3. A revocation hearing was scheduled for May 2, 2018.
       {¶ 16} 4. Jarrett was subpoenaed to testify at the hearing and the subpoena was
hand-delivered to her address on April 23, 2018.
       {¶ 17} 5. At the hearing, relator was charged with the following violations:
              RULE 1 Count 1: On or about 3/28/2018, in the vicinity of
              Cleveland, Ohio, you caused or attempted to cause physical
              harm to Gwendolyn Jarrett.

              RULE 2 Count 1: On or about 3/28/2018, you failed to comply
              with a verbal order issued by your Supervising Officer
              instructing you to have no contact with Gwendolyn Jarrett.

              RULE 8 Count 1: On or about 3/28/2018, you failed to comply
              with a Parole Board special condition ordering you to have no
              change at residence without prior approval from the Board.

       {¶ 18} 6. Jarrett did not appear to testify. One of the two police officers appeared
to testify and his bodycam video was introduced into evidence.
       {¶ 19} 7. Relator was represented by counsel. Following the hearing, relator was
found guilty of rule one, causing or attempting to cause physical harm to Jarrett, and rule
eight, failure to comply with the condition ordering him to have no change in residence
without prior approval from the board, and not guilty of rule two. Relator's parole was
revoked and he was ordered to serve an additional 36 months incarceration.
       {¶ 20} 8. Relator submitted an appeal to the adult parole authority.
       {¶ 21} 9. In a letter dated September 20, 2018, David Lomax, chief hearing officer
for the Ohio Parole Board, responded:
No. 18AP-945                                                                                  8

              I have reviewed the hearing material for your case and note
              that you received a full revocation hearing on or about May 2,
              2018. During the hearing you were represented by counsel
              and was provided an opportunity to present evidence and
              cross examine witnesses. The Hearing Officer determined
              revocation of your parole was warranted and the Ohio Parole
              Board concurred. The decision of the hearing officer is final
              unless there is case dispositive or prejudicial error. I have
              concluded that no such error exists in this matter.

       {¶ 22} 10. On December 10, 2018, relator filed this mandamus action arguing that
he was not represented by counsel, not permitted to cross-examine the witness against him,
and that his parole was revoked solely on the basis of hearsay.
       {¶ 23} 11. On January 11, 2019, respondent filed a motion to dismiss.
       {¶ 24} 12. On February 1, 2019, relator filed a reply in opposition to the motion to
dismiss.
       {¶ 25} 13. On February 8, 2019, respondent replied to relator's response.
       {¶ 26} 14. On February 27, 2019, relator filed an additional motion in response.
       {¶ 27} 15. The matter is currently before the magistrate.
Conclusions of Law:
       {¶ 28} For the reasons that follow, it is this magistrate's decision that relator has not
demonstrated that he is entitled to a writ of mandamus, and this court should deny his
request for same.
       {¶ 29} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 30} 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.
       {¶ 31} 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
No. 18AP-945                                                                                9

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
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).
For the following reasons, respondent's motion should be granted and relator's complaint
should be dismissed.
       {¶ 32} There are six minimum due process rights guaranteed by the 14th
amendment for parole revocation hearings. They include:
              (a) written notice of the claimed violations of parole;
              (b) disclosure to the parolee of evidence against him;
              (c) opportunity to be heard in person and to present witnesses
              and documentary evidence; (d) the right to confront and
              cross-examine adverse witnesses (unless the hearing officer
              specifically finds good cause for not allowing confrontation);
              (e) a 'neutral and detached' hearing body such as a traditional
              parole board, members of which need not be judicial officers
              or lawyers; and (f) a written statement by the factfinders as to
              the evidence relied on and reasons for revoking parole. *** Id.
              408 U.S. at 488-489.

Wilkins v. Wilkinson, 10th Dist. No. 01AP-468 (Jan. 15 2002), quoting Morrissey v.
Brewer, 408 U.S. 471 (1972).
       {¶ 33} Relator's first complaint involved counsel. Initially, relator appears to argue
he was denied the right to be represented by counsel; however, relator actually argues that
counsel was ineffective for not subpoenaing Jarrett to attend the hearing. However, as
stated in the findings of fact, Jarrett was in fact subpoenaed to appear at his parole
revocation hearing. As such, to the extent that relator contends that counsel was ineffective
for failing to subpoena or otherwise interview Jarrett, that argument lacks merit.
       {¶ 34} Relator also asserts he was denied his right to examine the witness and
confront his accusers. Relator is guaranteed the opportunity to present witnesses. Here,
Jarrett was subpoenaed to attend the hearing. The subpoena was hand-delivered to her
address at 7604 Sagamore Road, Cleveland, Ohio. An examination of the police report from
the day in question identifies the same address as Jarrett's residence. Although relator
submitted a letter from Jarrett stating that she never received notice of the hearing, that is
contradicted by the evidence which demonstrates otherwise.
No. 18AP-945                                                                              10

       {¶ 35} Lastly, relator contends that this parole was revoked solely on hearsay
evidence and cites this court's decision in State ex rel. Hines v. Ohio Parole Bd., 75 Ohio
St.3d 1494 (1996) In Hines, this court reiterated that, the revocation of parole based
exclusively upon hearsay evidence is impermissible. However, the magistrate finds that
relator has not demonstrated that his due process rights were violated here.
       {¶ 36} One of the police officers who responded to Jarrett's address on March 28,
2018 testified not only to the statements Jarrett made to him, but also to his observations.
As noted in the findings of fact, the officer observed an abrasion on Jarrett's lip which was
beginning to swell, as well as swelling on the side of her face. Further, the bodycam video
was submitted for the parole board to review. As such, in finding that relator violated rule
one, the parole board had more than just hearsay evidence before it. Additionally, relator
ultimately admitted that he pushed Jarrett. Furthermore, relator was also found to have
violated rule eight and that he failed to comply with the requirement of having no change
of residence without prior approval. Relator himself told the police that he was keeping his
clothes at Jarrett's residence.
       {¶ 37} Based on the foregoing, it is this magistrate's decision that respondent's
motion to dismiss should be granted. Furthermore, inasmuch as relator has failed to
prevail, this court should order the clerk to make periodic deductions from his inmate
account to pay the costs of this 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).
