[Cite as Hurst v. Jobes, Henderson Assoc., 2014-Ohio-2548.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



MARK E. HURST                                             JUDGES:
                                                          Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                               Hon. John W. Wise, J.
                                                          Hon. Patricia A. Delaney, J.
-vs-
                                                          Case No. 13 CA 103
JOBES, HENDERSON ASSOC., et al.

        Defendants-Appellees                              OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 13 CV 0864

JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               June 12, 2014


APPEARANCES:

For Plaintiff-Appellant                               For Defendants-Appellees

MARK E. HURST                                         TIMOTHY J. RYAN
PRO SE                                                GALLAGHER, GAMS, PRYOR,
19 East Street                                        TALLAN & LITTRELL
Newark, Ohio 43055                                    471 East Broad Street, 19th Floor
                                                      Columbus, Ohio 43215

                                                      For Defendants-Appellees Robertsons

                                                      ADAM K. VERNAU
                                                      ADAM VERNAU LLC
                                                      1288 Brittany Hills Drive
                                                      Newark, Ohio 43055
Licking County, Case No. 13 CA 103                                                       2

Wise, J.

      {¶1}    Plaintiff-Appellant, Mark E. Hurst, appeals the October 30, 2013, decision

of the Licking County Court of Common Pleas granting Appellees’ motion to dismiss the

complaint.

                       STATEMENT OF THE CASE AND FACTS

      {¶2}    On August 6, 2008, Appellant Mark E. Hurst was convicted by the Licking

County Common Pleas Court, Case Number 2007 CR 00527, on one count of

pandering obscenity involving a minor (F4), one count of pandering sexually oriented

material involving a minor (F4), and one count of illegal use of a minor in nudity oriented

material or performance (F5).

      {¶3}    On August 27, 2013, Appellant filed a Complaint in the Court of Common

Pleas, Licking County, Ohio naming Appellees Richard Day, Jobes, Henderson and

Associates, Inc., Robertson Construction, Inc. and Christian Robertson as Defendants.

      {¶4}    Appellant alleges the discovery of child pornography on his computer led

to felony charges against him. While Appellant does not specifically identify the date

and time when Appellees are alleged to have engaged in wrongful behavior, he argues

the wrongfully obtained information was utilized in the case against him and helped

secure his conviction on August 6, 2008. Accordingly, it is apparent the alleged wrongful

conduct occurred sometime prior to August 6, 2008.

       {¶5}   Appellant contends the Appellees violated his constitutional rights. More

specifically, he argues the Appellees' intentional and/or gross negligent behavior

deprived him of his right to a fair trial, as guaranteed by the Sixth Amendment of the

United States Constitution.
Licking County, Case No. 13 CA 103                                                   3


      {¶6}   According to the Complaint, Appellant alleges he was an employee of

Robertson Construction, which is owned and operated by Christian Robertson. He

alleges that Jobes, Henderson & Associates subcontracts its employee Richard Day to

Robertson Construction to install and upkeep its computer system.

      {¶7}   Appellant alleged that some time prior to August 6, 2008, Mr. Day

accessed Appellant's work computer and discovered child pornography stored on the

machine. Mr. Day is alleged to have accessed the computer "no less than five times"

following the discovery of the pornographic material in an effort to preserve the

evidence. Later in the Complaint, Mr. Day is alleged to have accessed the computer as

many as seven times. Appellant's Complaint goes on to allege that Mr. Day burned two

compact disks and also took Appellant's computer off the Robertson Construction's

network. Appellant concludes in the Complaint that the conduct of Mr. Day was "not only

improper, it was illegal." According to Appellant, the fact Mr. Day accessed the

computer "no less than seven times" while the computer was still connected to the

internet altered and contaminated the evidence.

      {¶8}   As the employer of Mr. Day, Appellant alleges that Appellee Jobes,

Henderson and Associates is "culpable for their employees' actions."

      {¶9}   On February 23, 2013, Appellees filed a motion in Common Pleas Court to

dismiss the Complaint pursuant to Ohio Civil Rule 12(B)(6). Appellees argued

Appellant's Complaint, taken at face value, did not state a cause of action that is

recognizable under Ohio law against Mr. Day and, by implication, against Jobes

Henderson and Associates. In addition, the Appellees argued in the motion that any
Licking County, Case No. 13 CA 103                                                       4


cause of action which could conceivably arise out of the conduct of Mr. Day was barred

by the related statute of limitations.

       {¶10} On October 1, 2013, Appellees Christian Robertson and Robertson

Construction, Inc., filed a Motion to Dismiss pursuant to Civ.R. 12(B)(6).

       {¶11} On October 30, 2013, the trial court granted Appellees' Motions to Dismiss

the Complaint, finding there to be no right of action pursuant to the Sixth Amendment of

the United States Constitution between one private citizen against another private

citizen. Further, the trial court indicated that any conceivable cause of action that might

arise out of the alleged behavior described in Appellant's Complaint was barred by the

statute of limitations. Accordingly, the court dismissed Appellant's Complaint.

       {¶12} Appellant now appeals, assigning the following errors for review:

                                   ASSIGNMENTS OF ERROR

       {¶13} “I. THE COURT OF COMMON PLEAS, LICKING COUNTY, OHIO

ABUSED THEIR DISCRETION BY DISMISSING                       APPELLANT’S      COMPLAINT

PURSUANT TO CIV.R.12(B)(6).

       {¶14} II. THE COURT ABUSED THEIR DISCRETION, WHEN THEY ALTERED

PLAINTIFF’S COMPLAINT TO A 42 U.S.C. 1983.

       {¶15} III. THE COURT ERRORED [SIC] WHEN THEY JUDGED THAT

PLAINTIFF WAS UNTIMELY, AND ABUSED THEIR DISCRETION.”

                                            I., II., III.

       {¶16} In each of his three Assignments of Error, Appellant argues that the trial

court erred in dismissing his complaint. We disagree.
Licking County, Case No. 13 CA 103                                                       5


        {¶17} Initially, Appellant argues that the trial court should not have granted

Appellees’ motions to dismiss because Appellees failed to put forth any evidence to

contradict his claims and further that the trial court “totally ignored the evidence

presented as Appendixes in Plaintiff’s filings.”

        {¶18} We review a trial court order granting a motion to dismiss pursuant to Civil

Rule 12(B)(6) under a de novo standard of review. Greeley v. Miami Valley

Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990). In 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, 565 N.E.2d 584 (1991).

        {¶19} In order for a court to dismiss a complaint under Civ.R. 12(B)(6) for failure

to state a claim upon which relief can be granted, it must appear beyond doubt that the

plaintiff can prove no set of facts warranting relief, after all factual allegations of the

complaint are presumed true and all reasonable inferences are made in the nonmoving

party's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581,

1996–Ohio–360, 669 N.E.2d 835. A complaint may not be dismissed under Civ.R.

12(B)(6) for failing to comply with the applicable statute of limitations unless the

complaint on its face conclusively indicates that the action is time-barred. McKinley at ¶

13.

        {¶20} When ruling on a Civ.R. 12(B)(6) motion, a court may not rely upon

evidence or allegations outside the complaint. State ex rel. Fuqua v. Alexander, 79 Ohio

St.3d 206, 207, 1997–Ohio–169, 680 N.E.2d 985. Civ.R. 12(B)(6) instructs in pertinent

part:
Licking County, Case No. 13 CA 103                                                        6


       {¶21} In the instant case, the trial court construed all of the allegations contained

in Appellant’s complaint in his favor and presumed all factual allegations to be true.

However, even in so doing, the trial court found that Appellant failed to state a cause of

action upon which relief could be granted because the only allegations raised in said

Complaint were Sixth Amendment rights violations.

       {¶22} While Appellant did not specifically characterize his claims as claims

pursuant to 42 U.S.C. 1983, because Appellant was alleging a constitutional violation,

the trial court construed his claims as an action under 42 U.S.C.1983, which provides a

remedy for deprivations of rights secured by the Constitution and laws of the United

States when that deprivation takes place ‘under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory.’ ” Lugar v. Edmondson Oil Co.,

Inc. (1982), 457 U.S. 922, 924, 102 S.Ct. 2744, 73 L.Ed.2d 482, quoting Section 1983.

       {¶23} Specifically, 42 U.S.C. 1983 provides:

       {¶24} “Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress * * *.”

       {¶25} To prevail on a 1983 claim, a plaintiff must establish that (1) the conduct in

controversy was committed by a person acting under color of law, and (2) the conduct

deprived the plaintiff of a federal right, either constitutional or statutory. Ziegler v.

Aukerman, 512 F.3d 777, 782 (6th Cir.2008).
Licking County, Case No. 13 CA 103                                                         7


       {¶26} A person is acting under the color of state law if “the conduct allegedly

causing the deprivation of a federal right [can] be fairly attribut[ed] to the State.” Id. at

937. For fair attribution to the state to exist, the person charged with committing the

deprivation “must be a person who may fairly be said to be a state actor.” Id. “This may

be because he is a state official, because he has acted together with or has obtained

significant aid from state officials, or because his conduct is otherwise chargeable to the

State.” Id.

       {¶27} Here, as found by the trial court, Appellees are not state actors. Further,

Appellant has never alleged Appellees were state actors at any time.

       {¶28} We likewise find that the trial court was correct in its finding that any

claims brought pursuant to 42 U.S.C. 1983 were barred by the applicable two-year

statute of limitations as Appellant’s conviction occurred on August 6, 2008, and any

action by Appellees would have had to have taken place prior to that date.

       {¶29} We do not find that Appellant effectively raised any other causes of action

in his complaint, however we do agree with the trial court that any causes of action

sounding in libel, slander, malicious prosecution, and false imprisonment (one-year) or

tort (four-year) or bodily injury (two-year) would likewise be time-barred.

       {¶30} With    regard    to   Appellant’s   argument    that   R.C.     2305.15(B)   is

unconstitutional as applied in this case, we find Appellant has forfeited any argument

based on the Ohio Constitution because he failed to assert such an argument before

the trial court. State ex rel. Ohio Civ. Serv. Emp. Assn., 104 Ohio St.3d 122, 2004-Ohio-

6363, 818 N.E.2d 688, at ¶ 10.
Licking County, Case No. 13 CA 103                                                  8


       {¶31} We conclude that Appellant's causes of action for violation of his Sixth

Amendment right to a fair trial under the United States Constitution is not cognizable

against a private party.

       {¶32} Appellant’s Assignments of Error are denied.

       {¶33}    For the foregoing reasons, the judgment of the Court of Common Pleas

of Licking County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.



JWW/d
Licking County, Case No. 13 CA 103   9
