[Cite as Hurst v. Green, 2014-Ohio-2198.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


MARK EDWARD 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-99
                                              :
NEWARK POLICE CHIEF GREEN, ET                 :
AL.                                           :
                                              :
                                              :
       Defendants-Appellees                   :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Licking County Court of
                                                  Common Pleas, Case No. 13 CV 643



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           May 20, 2014




APPEARANCES:

For Plaintiff-Appellant:                          For Defendants-Appellees:

MARK E. HURST, PRO SE                             GREGORY A. BECK
19 East Street                                    400 S. Main St.
Newark, OH 43055                                  North Canton, OH 44720
Licking County, Case No. 13-CA-99                                                      2

Delaney, J.

      {¶1} Plaintiff-Appellant Mark E. Hurst appeals the October 15, 2013 judgment

entry of the Licking County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} The underlying facts were derived from State v. Hurst, 181 Ohio App.3d

454, 2009-Ohio-983, 909 N.E.2d 653 (“Hurst I”). Plaintiff-Appellant Mark E. Hurst

worked for Robertson Construction Company in Licking County during the month of

April 2007. Hurst was a field employee and had been injured on the job. Accordingly,

Hurst was placed on light duty and assigned to work in the office during that month.

      {¶3} On April 25, 2007, Theresa Ruby, Hurst’s direct supervisor, claimed to

have witnessed Hurst viewing pornography on a newly added computer station. She

testified that she had found Hurst “in the other office.” When Ruby walked behind Hurst,

she testified that she believed she saw him looking at “pictures of naked women.”

      {¶4} Christian Robertson, of Robertson Construction contacted their outside

computer information technology (“IT”) person, Richard Day, and the police. Day

testified that the computer Hurst had been using had been installed at Robertson

Construction approximately one week prior to this incident. Day looked at the

computer's hard disk drive, the “C” drive, in an attempt to discover whether anyone was

downloading anything that he or she should not have been. His investigation did not find

any physical evidence of inappropriately downloaded material or unauthorized folders

created by someone using that computer workstation. However, when Day looked in the

“temporary internet files” folder contained on the computer's hard disk drive, he found

over 20,000 pictures. Upon opening and viewing several of the pictures, Day realized
Licking County, Case No. 13-CA-99                                                        3


they were pornographic photographs. Day “locked down” the computer and suggested

to Christian Robertson that he contact the police. Later that afternoon, Officer Brandy

Huffman arrived at the scene to collect the computer. At her request, Day made two

copies of the photographs found on the computer's hard drive to a CD–ROM to be used

as evidence by the police.

       {¶5} Diamond Boggs, a forensic computer expert with the Bureau of Criminal

Identification and Investigation, testified that she had specific training related to

detecting “virtual” children. She used this training while looking at the computer pictures

at issue in the instant case. Boggs testified that the computer's hard drive contained

approximately 14,000 photographs, which had been accessed April 20 through April 25,

2007. Boggs further testified that she found pictures that she believed to be child

pornography or adult pornography, and some that could be either. She testified that in

her expert opinion, virtual photographs of children are distinguishable from real children.

She further testified that she did not find any indication that the photographs at issue

were virtual, as opposed to real, children. In fact, despite her training in the area of

detecting photographs of virtual children, she testified that there was “nothing that tells

me that they are not real children.” Boggs explained that the person who had used the

computer manually typed terms into the search engine in order to search for websites

associated with child pornography. In fact, in one such search the individual made a

typographical error by initially typing tinyteenthungs.info, only to have to correct it.

Boggs characterized the individual's access to these types of web pages as “[n]ot an

accidental viewing of child pornography.” Fifty pictures from the over 14,000 pictures

found on the computer’s hard drive were selected by Boggs as possible child
Licking County, Case No. 13-CA-99                                                     4


pornography. All of the 50 images were found in the computer's temporary internet

cache folder. Those pictures were admitted into evidence at Hurst’s jury trial.

       {¶6} Hurst was interviewed by the police and confessed that he had used the

computer to view pornography. He admitted that 70 percent of the time that he had

spent on the computer while at work he was viewing pornographic web sites.

       {¶7} On or around July 24, 2008, Hurst and his counsel signed a pleading titled

“Defendant's Agreement to Amendment of Indictment,” which was filed July 25, 2008.

The agreement purported that Hurst understood that his indictment was defective and

that a “reckless” mental state was not present in the indictment. Hurst also agreed to

waive his appellate rights with respect to the indictment defect and consented to an

amendment of the indictment.

       {¶8} Hurst was convicted by the jury on all three counts in the indictment. The

trial court sentenced appellant to 15 months on the charge of pandering obscenity

involving a minor, 15 months on the charge of pandering sexually oriented matter

involving a minor, and nine months on the charge of illegal use of a minor in nudity-

oriented material or performance, with all three sentences running consecutively, for an

aggregate sentence of 39 months. Hurst was also classified as a Tier 1 sexual offender.

       {¶9} Hurst appealed his sentence and conviction, which this Court affirmed in

Hurst I.

       {¶10} Hurst failed to file a timely appeal to the Ohio Supreme Court. On June 16,

2009, Hurst filed a notice of appeal and a motion for delayed appeal with the Ohio

Supreme Court. The Court denied the motion on July 29, 2009. See State v. Hurst, 122

Ohio St.3d 1476, 2009-Ohio-3625, 910 N.E.2d 1476.
Licking County, Case No. 13-CA-99                                                           5


       {¶11} On October 25, 2009, Hurst filed a petition for Writ of Habeas Corpus with

the United States District Court for the Southern District of Ohio, Eastern Division. See

Hurst v. Warden, Madison Correctional Inst., Madison Correctional Inst., S.D.Ohio No.

2:09CV1402, 2011 WL 2183299 (June 6, 2011). In his petition, Hurst asserted six

counts of constitutional violations, specifically claiming he did not receive a fair trial.

Hurst conceded he did not raise the constitutional violation issues on direct appeal, and

was thus barred from raising them in federal court pursuant to the doctrine of res

judicata. The court stayed his petition until Hurst could argue his claim of ineffective

assistance of appellate counsel in state court and exhaust his state remedies. Id. at *8.

       {¶12} Hurst filed an untimely application for reopening with this Court. We

denied the motion on September 11, 2011. The Ohio Supreme Court denied the appeal

of this decision in State v. Hurst, 130 Ohio St.3d 1497, 2011-Ohio-6556, 958 N.E.2d

959.

       {¶13} Hurst served his full term and was released under the supervision of the

Adult Parole Authority in November 2011.

       {¶14} Hurst’s case returned to the federal court where the court held that Hurst’s

procedural default at state court barred federal habeas review of Hurst’s claims of

alleged constitutional violations. Hurst v. Warden, Madison Correctional Inst., S.D.Ohio

No. 2:09CV1042, 2012 WL 1945103 (May 30, 2012).

       {¶15} On February 10, 2012, the State moved the trial court to vacate Hurst’s

Tier I classification and to reclassify Hurst as a “sexually oriented offender” under the

law in effect prior to S.B. 10 (S.B. 5) in response to the Ohio Supreme Court’s holding in

State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. The trial
Licking County, Case No. 13-CA-99                                                        6


court granted the motion without a hearing by judgment entry filed on February 29,

2012.

         {¶16} Hurst appealed the decision to this Court. In our decision, we set aside the

“sexually oriented offender” determination without the need to remand the matter to the

trial court. State v. Hurst, 5th Dist. Licking No. 12-CA-20, 2012-Ohio-6075 (“Hurst II”).

We ordered:

         Based upon the above, we find only that portion of Appellant's sentence

         classifying him a sexually oriented offender is void. As a result, this Court

         vacates the illegal portion of Appellant's sentence. Appellant's sentencing

         entry is affirmed in all other respects, excepting his classification as a

         sexually oriented offender, which is hereby vacated.

State v. Hurst, 5th Dist. No. 12-CA-20, 2012-Ohio-6075, ¶ 26.

         {¶17} On April 26, 2013, Hurst filed with the trial court a “Motion to Vacate

and/or Void Original and Successive ‘Final Judgment Entries’ for ‘Plain Error’ of ‘Allied

Offenses’,” a “Motion to Decrease and/or Void ‘Post Release Control’,” and “Motion for a

New ‘Sentencing Hearing’.” The trial court denied the motions. Hurst appealed the

decisions to this Court in State v. Hurst, 5th Dist. Licking No. 13-CA-64, 2013-Ohio-481

(“Hurst III”). We affirmed the trial court’s decision and overruled Hurst’s assignments of

error.

         {¶18} On June 27, 2013, Hurst filed a pro se complaint in the Licking County

Court of Common Pleas against Defendants-Appellees Newark Police Chief Green,

Officer Trotter, Officer Brandi Huffman, and Detective Robert Huffman. In his complaint,

Hurst alleged the Appellees improperly gathered and handled evidence and withheld or
Licking County, Case No. 13-CA-99                                                        7


destroyed exculpatory evidence. Hurst’s complaint stated in part, “The Defendants,

under color of law, did, in their official and individual capacity collectively and

individually, deny Plaintiff a fair trial. A Constitutional violation of Plaintiff’s 6th

Amendment Right. Defendants, through intention or gross-negligence did violate

Plaintiff’s constitutional rights.” Hurst requested compensatory and punitive damages.

      {¶19} On July 24, 2013, Appellees filed a Motion to Dismiss. In their motion, the

Appellees argued Hurst’s pro se complaint alleged a cause of action under 42 U.S.C.

1983. On September 4, 2013, the trial court converted Appellees’ Motion to Dismiss to a

Motion for Summary Judgment pursuant to Civ.R. 12(B). The parties submitted

supplemental briefs.

      {¶20} The trial court granted Appellees’ Motion for Summary Judgment on

October 15, 2013. The trial court found Hurst’s claim for damages was not cognizable

under 42 U.S.C. 1983.

      {¶21} It is from this decision Hurst now appeals.

                             ASSIGNMENTS OF ERROR

      {¶22} Hurst raises four Assignments of Error:

      {¶23} “I. THE COURT OF COMMON PLEASE [SIC], LICKING COUNTY, OHIO,

JUDGMENT ENTRY, FILED OCT. 15, 2013, WAS AN ‘ABUSE OF DISCRETION.’ THE

COURT CONVERTED DEFENDANT’S ‘MOTION TO DISMISS’ TO A ‘MOTION FOR

SUMMARY JUDGMENT’ PURSUANT TO CIV.R. 12(B).

      {¶24} “II. THE LICKING COUNTY COMMON PLEAS COURT ABUSED THEIR

DISCRETION WHEN THE FOUND THAT APPELLANT WAS ONLY CHALLENGING
Licking County, Case No. 13-CA-99                                                      8


HIS CONSTITUTIONAL RIGHT TO A FULL AND FAIR TRIAL, AND HIS CLAIM WAS A

42 U.S.C. 1983.

      {¶25} “III. DEFENDANTS AND THE COURT OF COMMON PLEAS PUT-

FORTH A UNSUSTAINABLE ARGUMENT USING THEIR STANDARD OF REVIEW

AND LAW.

      {¶26} “IV. THE COURT ‘ABUSED THEIR DISCRETION’ AND ‘ERRORED’ [SIC]

WHEN THEY STATED: ‘AS PLAINTIFF’S CLAIMS ATTACK THE VALIDITY OF HIS

CONVICTION, THEY ARE NOT COGNIZABLE UNDER 42 U.S.C. 1983…”

                                      ANALYSIS

                                           I.

      {¶27} Hurst argues in his first Assignment of Error that the trial court erred when

it converted Appellees’ motion to dismiss into a motion for summary judgment. We

disagree.

      {¶28} Civ.R. 12(B) provides that:

      When a motion to dismiss for failure to state a claim upon which relief can

      be granted presents matters outside the pleading and such matters are

      not excluded by the court, the motion shall be treated as a motion for

      summary judgment and disposed of as provided in Rule 56. Provided,

      however, that the court shall consider only such matters outside the

      pleadings as are specifically enumerated in Rule 56. All parties shall be

      given reasonable opportunity to present all materials made pertinent to

      such a motion by Rule 56.
Licking County, Case No. 13-CA-99                                                       9

Douglass v. Provia Door, Inc., 5th Dist. Tuscarawas No. 2012 AP 05 0034, 2013-Ohio-

2853, ¶ 37-38.

       {¶29} The trial court determined Appellees’ motion to dismiss presented matters

outside of the pleadings. In Appellees’ motion to dismiss, Appellees referred to the

decisions of the federal court, the Ohio Supreme Court, and the Fifth District Court of

Appeals to argue Hurst’s complaint failed to state a claim pursuant to Civ.R. 12(B)(6).

These decisions were outside the four corners of the pleadings. The trial court notified

the parties by judgment entry that it was converting the motion to dismiss to a motion for

summary judgment pursuant to Civ.R. 12(B). The judgment entry was filed on

September 4, 2013 and the non-oral hearing on the motion for summary judgment was

scheduled for October 8, 2013. The parties were given reasonable opportunity to

supplement the record with Civ.R. 56 materials. See Petrey v. Simon, 4 Ohio St.3d 154,

447 N.E.2d 1285 (1983), paragraphs one and two of the syllabus.

       {¶30} We find no reversible error for the trial court to convert the motion to

dismiss to a motion for summary judgment.

       {¶31} Hurst’s first Assignment of Error is overruled.

                                         II., III., IV.

       {¶32} Hurst’s second, third, and fourth Assignments of Error argue the trial court

erred when granted judgment in favor of Appellees because it found Hurst’s claims were

not cognizable under 42 U.S.C. 1983. We disagree.

                                     Standard of Review

       {¶33} We refer to Civ.R. 56(C) when reviewing a motion for summary judgment

which provides, in pertinent part:
Licking County, Case No. 13-CA-99                                                        10


       Summary judgment shall be rendered forthwith if the pleading,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence in the pending case and written stipulations of fact,

       if any, timely filed in the action, show that there is no genuine issue as to

       any material fact and that the moving party is entitled to judgment as a

       matter of law. * * * A summary judgment shall not be rendered unless it

       appears from such evidence or stipulation and only from the evidence or

       stipulation, that reasonable minds can come to but one conclusion and

       that conclusion is adverse to the party against whom the motion for

       summary judgment is made, such party being entitled to have the

       evidence or stipulation construed most strongly in the party's favor.

       {¶34} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶35} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).
Licking County, Case No. 13-CA-99                                                       11


                                     42 U.S.C. 1983

       {¶36} “Section 1 of the Civil Rights Act of 1871, as amended, Section 1983, Title

42, U.S. Code, provides a remedy to persons whose federal rights have been violated

by government officials. Section 1983 does not encompass official conduct that violates

only state law; rather the statute is limited to deprivations of federal constitutional and

statutory rights. State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 92, 637

N.E.2d 306, 309; Shirokey v. Marth (1992), 63 Ohio St.3d 113, 116, 585 N.E.2d 407,

410.” Cook v. Cincinnati, 103 Ohio App.3d 80, 85, 658 N.E.2d 814, 817 (1st Dist.1995).

       {¶37} “To establish a 1983 claim against an individual public official, two

elements are required: (1) the conduct complained of must be committed by a person

acting under color of state law, and (2) the conduct must deprive the plaintiff of a

federally protected right, either constitutional or statutory. Gomez v. Toledo (1980), 446

U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572; 1946 St. Clair Corp. v. Cleveland (1990), 49

Ohio St.3d 33, 34, 550 N.E.2d 456, 458; Cooperman v. Univ. Surgical Assoc., Inc.

(1987), 32 Ohio St.3d 191, 199, 513 N.E.2d 288, 296; Roe v. Hamilton Cty. Dept. of

Human Serv. (1988), 53 Ohio App.3d 120, 560 N.E.2d 238.” Cook v. Cincinnati, 103

Ohio App.3d 80, 85, 658 N.E.2d 814, 817 (1st Dist.1995).

       {¶38} Hurst argues in his first Assignment of Error that the trial court erred when

it interpreted his complaint as a 42 U.S.C. 1983 action. Hurst contends that he is not

challenging his conviction and sentence with his complaint; he is claiming Appellees’

actions during the investigation harmed him because of an abuse of process and/or a

denial of procedural due process.
Licking County, Case No. 13-CA-99                                                          12


          {¶39} Hurst’s complaint states in part, “The Defendants, under color of law, did,

in their official and individual capacity collectively and individually, deny Plaintiff a fair

trial. A Constitutional violation of Plaintiff’s 6th Amendment Right. Defendants, through

intention or gross-negligence did violate Plaintiff’s constitutional rights.” Hurst requested

compensatory and punitive damages.

          {¶40} A review of Hurst’s complaint shows that it states the two elements

necessary to establish a 42 U.S.C. 1983 claim against a public official. We find no

abuse of discretion for the trial court to interpret Hurst’s complaint as a 42 U.S.C. 1983

action.

          {¶41} In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383

(1994), the United States Supreme Court addressed a case where the petitioner filed a

suit under 42 U.S.C. 1983 seeking damages on the claim that the respondents, acting

under color of state law, had engaged in unlawful acts that had led to the petitioner’s

arrest and conviction. While the petitioner’s 1983 claim was pending, the state supreme

court upheld the petitioner’s conviction and sentence and his two petitions for federal

habeas relief were rejected. Heck, supra at 2367. The Supreme Court held:

          In order to recover damages for allegedly unconstitutional conviction or

          imprisonment, or for other harm caused by actions whose unlawfulness

          would render a conviction or sentence invalid, a § 1983 plaintiff must

          prove that the conviction or sentence has been reversed on direct appeal,

          expunged by executive order, declared invalid by a state tribunal

          authorized to make such determination, or called into question by a

          federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
Licking County, Case No. 13-CA-99                                                      13


       claim for damages bearing that relationship to a conviction or sentence

       that has not been so invalidated is not cognizable under § 1983.

Heck, supra at syllabus.

       {¶42} As stated in the Facts and Procedural History, Hurst’s conviction has been

upheld on appeal and his habeas petition was dismissed. Hurst argues, however, his

conviction was invalidated by this court’s decision in Hurst II. In Hurst II, this court

vacated Hurst’s classification as a sexually oriented offender. We ordered:

       Based upon the above, we find only that portion of Appellant's sentence

       classifying him a sexually oriented offender is void. As a result, this Court

       vacates the illegal portion of Appellant's sentence. Appellant's sentencing

       entry is affirmed in all other respects, excepting his classification as a

       sexually oriented offender, which is hereby vacated.

State v. Hurst, 5th Dist. No. 12-CA-20, 2012-Ohio-6075, ¶ 26.

       {¶43} Hurst II did not reverse Hurst’s conviction or sentence. Hurst II vacated

only the illegal portion of Hurst’s sentence.

       {¶44} Based on our de novo review, we find Hurst has not established there is a

genuine issue of material fact that his conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus, 28 U.S.C. § 2254, in order for Hurst to recover

damages under a 1983 claim. The trial court properly granted judgment as a matter of

law in favor of Appellees for Hurst’s failure to establish there was a genuine issue of

material fact that he had a cognizable claim under 42 U.S.C. 1983.
Licking County, Case No. 13-CA-99                                                   14


      {¶45} Hurst’s second, third, and fourth Assignments of Error are overruled.

                                    CONCLUSION

      {¶46} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, J., concur.
