Byrd v. Ohio Inspector Gen. , 2022 Ohio 1827 ( 2022 )

[Cite as Byrd v. Ohio Inspector Gen., 2022-Ohio-1827.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Houston Byrd, Jr., :
Plaintiff-Appellant, :
No. 21AP-578
v. : (C.P.C. No. 20CV-8271)
Ohio Inspector General, : (REGULAR CALENDAR)
Randall J. Meyer, State of Ohio et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on May 31, 2022
On brief: Houston Byrd, Jr., pro se.
On brief: Dave Yost, Attorney General, Iris Jin, and
Michael A. Walton, for appellees.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
{¶ 1} Plaintiff-appellant, Houston Byrd, Jr., appeals from a judgment of the
Franklin County Court of Common Pleas dismissing his complaint against defendants-
appellees the Ohio Inspector General, Randall J. Meyer, State of Ohio et al. (collectively
"appellees"). For the following reasons we affirm.
I. Facts and Procedural History
{¶ 2} On December 23, 2020, appellant filed a complaint in the common pleas
court. The caption of the complaint names as defendants "Ohio Inspector General, Randall
J. Meyer, State of Ohio, et. al." (Compl. at 1.) The "certificate of mailing" at the bottom of
the complaint certifies the complaint was mailed to "the Ohio Inspector General by USPS
Certified Mailing Ohio Inspector General, 30 East Broad Street, Ste 2940, Columbus, Ohio
No. 21AP-578 2
43215." (Compl. at 11.) The complaint is very difficult to decipher—it makes references to
the Ohio Inspector General, the Ohio Department of Insurance, and the Ohio Department
of Administrative Services and contains copies of correspondences or excerpts of
correspondence with these agencies and the Ohio Attorney General.
{¶ 3} On January 22, 2021, appellant filed a motion for judgment on the pleadings
pursuant to Civ.R. 12(C).1
{¶ 4} On January 26, 2021, appellees filed a motion to dismiss pursuant to Civ.R.
12(B)(6). Appellant filed a response in opposition to appellees' motion to dismiss on
January 27, 2021. Appellees filed a reply on February 1, 2021.
{¶ 5} Appellees argued the complaint should be dismissed pursuant to Civ.R.
12(B)(6) for failure to state a claim as the complaint is difficult to decipher and fails to put
them on notice of the action against them. In the alternative, appellees argued the
complaint should be dismissed due to lack of subject-matter jurisdiction as only the Court
of Claims of Ohio has jurisdiction over civil actions for monetary damages against the state.
Appellant responded that he alleged that the Ohio Inspector General failed to perform his
duties and in so doing violated his rights. Appellant also contends the trial court had
jurisdiction as the Court of Claims does not have jurisdiction to hear constitutional or civil
rights claims.
{¶ 6} On October 15, 2021, the trial court granted appellees' motion to dismiss on
the grounds that the complaint fails to state a claim upon which relief can be granted. The
trial court held "[p]laintiff proports to allege that he filed two complaints with Defendant
Ohio Inspector General against the Ohio Department of Administrative Services and the
Ohio Department of Insurance. Plaintiff alleges that the Defendants violated his
constitutional rights and failed to perform its duties. The Court finds that Plaintiff's
Complaint fails to set forth allegations in a way sufficient enough to put Defendants on
notice of the nature of the action as required by Civ.R. 8(A)." (Decision & Entry at 3.)
1We note that Civ.R. 12(C) authorizes a party to file a motion for a judgment on the pleadings "[a]fter the
pleadings are closed but within such time as not to delay the trial." (Emphasis added.) In this case, the
pleadings had not been completed and, thus, appellant's motion for judgment on the pleadings was filed
prematurely. See also Civ.R. 7; 8; and 12. The record indicates that summons was issued and proof of services
was issued on December 24, 2020; that service failed certified mail on January 7, 2021; and that service
completed certified mail on January 12, 2021.
No. 21AP-578 3
{¶ 7} On October 21, 2021, appellant filed an "Objection to October 15, 2021, Order
Request for Findings and an En Banc Review by another jurisdiction."2 On November 8,
2021, appellant filed a "Notice of Appeal for an En Banc Review."
II. Assignments of Error
{¶ 8} Appellant appeals and assigns the following assignments of error for our
review:3
ASSIGNMENT ERROR I. Did, the IG comply with ORC §
121.42 and 121.44 Reports of investigations? Did the IG
arbitrarily and willfully violate Article II of the Ohio
Constitution, ORC §3.07 Misconduct in office - forfeiture,
ORC 2921.45 Interfering with civil rights and Public Law 96-
303, Code of Ethics for Govemment Service? The IG has three
(3) complaints before them. No acknowledgment whether
there was an OMISSION or NOT for documented complaints
against 1.) Ohio Department of Administrative Services, 2.)
Ohio Dental Board, the medical professional ethically
admitted to and documented a medical injury; yet, the OIG
alleged there was NO OMISSIONs and 3.) Ohio Department
of Insurance. The trial court failed to impartially address the
non-compliance nor review relevant exhibits before the OIG
and Ohio Department of Administrative Services.
ASSIGNMENT OF ERROR II. If, the IG willfully neglected
their duties is the State required to provide representations at
2Civ.R. 52 states: "Findings of fact and conclusions of law required by this rule and by Civ.R. 41(B)(2) and
Civ.R. 23(G)(3) are unnecessary upon all other motions including those pursuant to Civ.R. 12, Civ.R. 55 and
Civ.R. 56." (Emphasis added.)
3 In addition to the assignments of error set forth in his merit brief and outlined above, appellant sets forth
two additional assignments of error in his reply brief. Appellant avers: "Assignment Error 1. Appellant Byrd
unambiguously requested the Appeal be placed on the Accelerated calendar due to many relevant supporting
criteria, refer to Appellant Byrd's Docketing Statement. Assignment Error 2. Whether the Appeal was entered
on the Accelerated calendar (R. 6, 15-day Response) or a Regular calendar (20-day Response); the Appellees'
December 14, 2021, Brief was untimely to be discussed later." (Sic passim.) (Reply Brief at 3.) However, we
decline to address these assignments of error. App.R. 16(A)(7) provides that assignments of error shall be
argued in the merit brief of the appellant. App.R. 16(C) states that an "appellant may file a brief in reply to the
brief of the appellee." (Emphasis added.) Reply briefs are only to be used to rebut arguments raised in an
appellee's brief, therefore an appellant may not use a reply brief to raise new issues or assignments of error.
Ostendorf v. Montgomery Cty. Bd. of Commrs., 2d Dist. No. 20257, 2004-Ohio-4520; State v. Wilson, 5th
Dist. No. 13CA39, 2014-Ohio-41; Capital One Bank (USA), N.A. v. Gordon, 8th Dist. No. 98953, 2013-Ohio-
2095. See also State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, ¶ 61 ("neither relators
nor respondents raised this issue in their initial briefs; relators are thus forbidden to raise this new argument
in their reply brief").
No. 21AP-578 4
taxpayers' expenses? See, Appellant's January 27, 2021,
Objection to Motion to Dismiss, page 4.
ASSGNMENT OF ERROR III. Why isn't this matter in
Default?
ASSIGNMENT OF ERROR IV. The trail court's
noncompliance to Appellant Byrd's, paid for, petition for an
"Outside Independent Judge Review(s) Requested" Visiting
Judge a Prejudicial error?
(Sic passim.) We further construe appellant's brief as raising a fifth assignment of error—
assigning that the trial court erred in dismissing his complaint. (See Appellant's Brief at 4-
5.)
III. Analysis
{¶ 9} As a preliminary matter, we begin by observing appellant's notation on the
front of his brief "en banc review or outside review." At this time, the criteria for en banc
review pursuant to App.R. 26(A)(2) has not been met. Therefore, we will not proceed en
banc. Furthermore, appellant has set forth no reason to support his request for outside
review. Nor has appellant indicated that he pursued the filing of affidavits of
disqualification pursuant to R.C. 2501.13, 2701.03, S.Ct.Prac.R. 21.01 through 21.04.
Therefore, judges of this court will review this case.
{¶ 10} In the first and second assignments of error, appellant addresses and asks
this court to opine regarding the merits of his allegations against appellees and his
allegations against the Department of Insurance, Department of Administrative Services,
and the Ohio Dental Board. As the trial court dismissed this case, and did not decide any
questions involving the merits of the allegations, these assignments of error are not ripe for
review and we decline to opine regarding the same in the first instance.
{¶ 11} In the fourth assignment of error, appellant inquires why the trial court did
not comply with his request for an outside or visiting judge. Appellant's complaint, motion
for judgment on the pleadings, and response to appellees' motion dismiss do not indicate
he pursued the filing of affidavits of disqualification pursuant to R.C. 2701.03 and S.Ct.
Prac.R. 21.01 through 21.04. Accordingly, the fourth assignment of error is overruled.
No. 21AP-578 5
{¶ 12} In the third assignment of error, appellant inquires "[w]hy isn't this matter
in [d]efault?" Civ.R. 55(A) authorizes judgment by default "[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend as provided
by these rules." Civ.R. 12(A)(1) requires the filing of an answer within 28 days after service
of the summons and complaint upon a defendant. However, Civ.R. 12(B) states that a
motion making any of the defenses outlined in Civ.R. 12(B), including Civ.R. 12(B)(6)
failure to state a claim, shall be made before pleading if a further pleading is permitted.
Civ.R. 12(A)(2) states that the service of a motion permitted under Civ.R. 12 "alters these
periods of time" as outlined in Civ.R. 12(A)(2). Finally, we note the record indicates that
summons was issued and proof of service certified mail receipt was sent on December 24,
2020; that notice of failure of certified mail service was filed on January 7, 2021; and that
notice of complete certified mail service was filed on January 12, 2021. Accordingly, the
third assignment of error is overruled.
{¶ 13} In the fifth assignment of error, appellant argues the trial court erred in
granting appellees' motion to dismiss pursuant to Civ.R. 12(B)(6). A Civ.R. 12(B)(6) motion
to dismiss tests the sufficiency of the complaint. Bullard v. McDonald's, 10th Dist. No.
20AP-374, 2021-Ohio-1505, ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc.,
42 Ohio St.2d 242, 245 (1975). A court may dismiss a complaint pursuant to Civ.R. 12(B)(6)
only if it appears beyond a doubt that the plaintiff can prove no set of facts entitling the
plaintiff to recovery. O'Brien at syllabus. The court must presume all factual allegations
contained in the complaint to be true and must make all reasonable inferences in favor of
the plaintiff. Bullard at ¶ 10. The court need not, however, accept as true any unsupported
and conclusory legal propositions advanced in the complaint. Morrow v. Reminger &
Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.). When
reviewing a Civ.R. 12(B)(6) dismissal, this court's standard of review is de novo. Foreman
v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9.
{¶ 14} Ohio is a notice pleading state. Pursuant to notice pleading, " '[appellant was]
required to allege sufficient facts to give [appellees] notice of [his] claim.' " Wiltz v.
Accountancy Bd. of Ohio, 10th Dist. No. 14AP-645, 2015-Ohio-2493, ¶ 13, quoting San
Allen, Inc. v. Buehrer, 8th Dist. No. 99786, 2014-Ohio-2071, ¶ 84, referencing Thatcher v.
No. 21AP-578 6
Lauffer Ravines, L.L.C., 10th Dist. No. 11AP-851, 2012-Ohio-6193, ¶ 43-48 ("Although
claim was 'not spelled out in the complaint by explicit reference to the appropriate statutory
sections,' " the case could nevertheless proceed on the theory that defendant violated
various statutory provisions if the allegations in the complaint " 'provided fair notice to the
defendants that the action could proceed on this theory.' "). " 'Notice pleading under Civ.R.
8(A)(1) and (E) require that a claim concisely set forth only those operative facts sufficient
to give "fair notice of the nature of the action." ' " Wiltz at ¶ 13, quoting Montgomery v.
Ohio State Univ., 10th Dist. No. 11AP-1024, 2012-Ohio-5489, ¶ 20, quoting Ford v. Brooks,
10th Dist. No. 11AP-664, 2012-Ohio-943, ¶ 13.
{¶ 15} From his complaint, it appears appellant is alleging that the Ohio Inspector
General: (1) committed misconduct in office, (2) interfered with civil rights, and (3) violated
Public Law 96-303, by failing to comply with his duties pursuant to R.C. 121.42 and 121.44.
Specifically, appellant alleges that:
The Office has knowingly and willfully violated the Ohio
Constitution, there must be penalties pursuant to Ohio
Revised Code (ORC) 3.07 Misconduct in office – forfeiture,
ORC 2921.45 Interfering with civil rights and Public Law 96-
303, Code of Ethics for Government Service.
***
There are several Constitutional legal and valid complaints
before the Ohio's Inspector General (IG), who has arbitrarily
and capriciously refused to file and acknowledge, in
particular, our March 23 and August 12, 2020 complaints
against the Ohio Department of Insurance and a January 21,
2020 complaint against the Ohio Department of
Administrative Services.
(Sic passim.) (Compl. at 1-3.)
{¶ 16} Further, appellant appears to request "reparations," punitive damages
pursuant to R.C. 2315.21, and damages pursuant to 42 U.S.C. 1985. (See Compl. at 10-11.)
{¶ 17} In addition, the complaint presents many "issues for review" and "questions"
regarding the merits of: (1) the allegations against the Ohio Inspector General, and (2) the
merits of the complaints appellant allegedly filed with the Ohio Inspector General against
the Department of Insurance and the Department of Administrative Services. However,
No. 21AP-578 7
our review today is limited to whether appellant failed to state a claim and we will not
address the merits, issues, and questions which appellant has interspersed within his
complaint.
{¶ 18} We find the trial court did not err in dismissing for failure to state a claim the
claim that the Inspector General violated Ohio's Public Law 96-303 as it is not clear to
which law appellant is referring cited or titled in this manner. Therefore, appellant failed
to state a claim.
{¶ 19} We also find the trial court did not err in dismissing for failure to state a claim
the broad allegation that the Inspector General violated the Constitution. Appellant refers
to "Article II" and "Article II.38." As best we can decipher, it appears appellant is suggesting
an impeachment process for the public officials referred to in the complaint for reasons that
they allegedly violated R.C. 3.07, 2921.44, 2921.45, and 2921.11. Ohio Constitution,
Article II, Section 38 states:
Laws shall be passed providing for the prompt removal from
office, upon complaint and hearing, of all officers, including
state officers, judges and members of the general assembly,
for any misconduct involving moral turpitude or for other
cause provided by law; and this method of removal shall be in
addition to impeachment or other method of removal
authorized by the constitution.
This provision directs Ohio's General Assembly to pass laws providing for the prompt
removal of office of the officers enumerated therein. Therefore, appellant failed to state a
claim. We also note that appellant failed to state a claim under R.C. 2921.11 (perjury) and
2921.44 (dereliction of duty). We have observed that "Ohio law does not recognize a private
cause of action for 'dereliction of duty.' " (Citation omitted.) Boddie v. Landers, 10th Dist.
No. 15AP-962, 2016-Ohio-1410, ¶ 10. The perjury claim fails for much the same reason,
too, among others. See Whelan v. Vanderwist of Cincinnati, Inc., 11th Dist. No. 2010-G-
2999, 2011-Ohio-6844, ¶ 27, citing Costell, Admr. v. Toledo Hosp., 38 Ohio St.3d 221, 223-
24 (1988).
{¶ 20} We also find the trial court did not err in dismissing for failure to state a claim
the allegation that the Inspector General violated R.C. 3.07. R.C. 3.07 states:
No. 21AP-578 8
Any person holding office in this state, or in any municipal
corporation, county, or subdivision thereof, coming within the
official classification in Section 38 of Article II, Ohio
Constitution, who willfully and flagrantly exercises authority
or power not authorized by law, refuses or willfully neglects to
enforce the law or to perform any official duty imposed upon
him by law, or is guilty of gross neglect of duty, gross
immorality, drunkenness, misfeasance, malfeasance, or
nonfeasance is guilty of misconduct in office. Upon complaint
and hearing in the manner provided for in sections 3.07 to
3.10, inclusive, of the Revised Code, such person shall have
judgment of forfeiture of said office with all its emoluments
entered thereon against him, creating thereby in said office a
vacancy to be filled as prescribed by law. The proceedings
provided for in such sections are in addition to impeachment
and other methods of removal authorized by law, and such
sections do not divest the governor or any other authority of
the jurisdiction given in removal proceedings.
(Emphasis added.) R.C. 3.07 specifically states that the procedures set forth in R.C. 3.07
through 3.10 must be followed. There is no indication in the complaint that the procedures
were followed. Therefore, appellant failed to state a claim.
{¶ 21} Finally, we find the trial court did not err in dismissing for failure to state a
claim the allegation that appellees violated R.C. 2921.45, 42 U.S.C. 1985, and the
Fourteenth Amendment of the United States Constitution. R.C. 2921.45 states:
(A) No public servant, under color of the public servant's
office, employment, or authority, shall knowingly deprive, or
conspire or attempt to deprive any person of a constitutional
or statutory right.
(B) Whoever violates this section is guilty of interfering with
civil rights, a misdemeanor of the first degree.
{¶ 22} 42 U.S.C. 1985 states:
(1) Preventing officer from performing duties. If two or more
persons in any State or Territory conspire to prevent, by force,
intimidation, or threat, any person from accepting or holding
any office, trust, or place of confidence under the United
States, or from discharging any duties thereof; or to induce by
like means any officer of the United States to leave any State,
district or place, where his duties as an officer are required to
No. 21AP-578 9
be performed, or to injure him in his person or property on
account of his lawful discharge of the duties of his office, or
while engaged in the lawful discharge thereof, or to injure his
property so as to molest, interrupt, hinder, or impede him in
the discharge of his official duties;
(2) Obstructing justice; intimidating party, witness, or juror.
If two or more persons in any State or Territory conspire to
deter, by force, intimidation, or threat, any party or witness in
any court of the United States from attending such court, or
from testifying to any matter pending therein, freely, fully,
and truthfully, or to injure such party or witness in his person
or property on account of his having so attended or testified,
or to influence the verdict, presentment, or indictment of any
grand or petit juror in any such court, or to injure such juror
in his person or property on account of any verdict,
presentment, or indictment lawfully assented to by him, or of
his being or having been such juror; or if two or more persons
conspire for the purpose of impeding, hindering, obstructing,
or defeating, in any manner, the due course of justice in any
State or Territory, with intent to deny to any citizen the equal
protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the laws;
(3) Depriving persons of rights or privileges. If two or more
persons in any State or Territory conspire, or go in disguise on
the highway or on the premises of another, for the purpose of
depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws, or for the purpose
of preventing or hindering the constituted authorities of any
State or Territory from giving or securing to all persons within
such State or Territory the equal protection of the laws; or if
two or more persons conspire to prevent by force,
intimidation, or threat, any citizen who is lawfully entitled to
vote, from giving his support or advocacy in a legal manner,
toward or in favor of the election of any lawfully qualified
person as an elector for President or Vice-President, or as a
member of Congress of the United States; or to injure any
citizen in person or property on account of such support or
advocacy; in any case of conspiracy set forth in this section, if
one or more persons engaged therein do, or cause to be done,
any act in furtherance of the object of such conspiracy,
whereby another is injured in his person or property, or
No. 21AP-578 10
deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or deprived
may have an action for the recovery of damages, occasioned
by such injury or deprivation, against any one or more of the
conspirators.
{¶ 23} The Fourteenth Amendment to the U.S. Constitution, Section 1 states:
All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
{¶ 24} Appellant broadly states that:
[He] submits this complaint due to the State's violation of
one's guaranteed rights pursuant to the U.S. and Ohio's
Constitutions. State governments create state courts through
the enactment of statutes or by constitutional provisions for
the purpose of enforcing state law. Public officials have
specific obligations to taxpayers; therefore, their actions of a
few have sullied the confidence of taxpayers. We are
submitting this corroborated and legal complaint due to the
Ohio Inspector General (OIG), Director Department of
Administrative Services (DAS) and other public officials'
failure to execute pursuant to Ohio Revised Code 3.07
Misconduct in office – forfeiture and Article II of the Ohio
Constitution as late as November 18, 2020.
(Sic passim.) (Compl. at 1.) There is no indication in the complaint which specific
constitutional or statutory rights appellant has allegedly been deprived of and the
complaint does not set forth operative facts sufficient to discern and for appellees to be
placed on notice of the same.4 Therefore, appellant failed to state a claim.
{¶ 25} Accordingly, the fifth assignment of error is overruled.
4We note appellant refers to R.C. 121.42 and 121.44; however, these statutes enumerate the duties of appellee
Ohio Inspector General, not the rights of appellant.
No. 21AP-578 11
IV. Conclusion
{¶ 26} For the reasons stated above, we find appellant's first and second
assignments of error not ripe for review and we decline to address them. We overrule
appellant's third, fourth, and fifth assignments of error. Accordingly, the judgment of the
Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN, JAMISON, and NELSON, JJ., concur.
Nelson, J., retired, formerly of the Tenth Appellate District,
Assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).