OHIO ATTORNEY GENERAL v. DENNIS R. BROCK
Case No. 14CA19
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
Released: 10/01/2015
2015-Ohio-4173
Hoover, P.J.
DECISION AND JUDGMENT ENTRY
Dennis R. Brock, Nelsonville, Ohio, pro se Appellant.
Miсhael DeWine, Ohio Attorney General, and Maura O’Neill Jaite, Senior Assistant Ohio Attorney General, Columbus, Ohio, for Appellee.
Hoover, P.J.
{¶ 1} Defendant-appellant, Dennis R. Brock (“Brock”), appeals the decision of the Hocking County Common Pleas Court granting summary judgment in favor of plaintiff-appellee, the Ohio Attorney General (“OAG”). The OAG filed a vexatious litigator complaint against Brock pursuant to
{¶ 2} Brock argues that he is not a vexatious litigator because he should have been granted a mandatory hearing pursuant to
I. Facts
{¶ 3} In August 2007, a jury found Brock guilty of 13 counts of Rape, first-degree felonies, in violation of
{¶ 4} In May 2012, Brock filed a petition for a writ of habeas corpus in the Twelfth District Court of Appeals. That court granted the respondent’s motion to dismiss and dismissed Brock’s petition on the ground that habeas corpus relief was not a proper remedy for Brock’s various legal challenges. Brock v. Brunsman, 12th Dist. Warren No. CA2012-05-043. Brock appealed the Twelfth District’s dismissal to the Ohio Supreme Court. The Ohio Supreme Court dismissed his appeal as untimely and further found Brock to be a vexatious litigator under S.Ct.Prac.R. 4.03(B), citing five different Ohio Supreme Court decisions involving Brock. See Brock v. Moore, 135 Ohio St.3d 188, 2013-Ohio-70, 985 N.E.2d 465 (case name changed because Moore was substituted for Brunsman as the warden respondent to the petition).
{¶ 5} Later, Brock was transferred from the Lebanon Correctional Facility Institute in Warren County to the Hocking Correctional Facility in Hocking County. Then, Brock filed a petition for a writ of habeas corpus in this court in December 2013. The OAG filed a motion to dismiss Brock’s petition. In March 2014, this court granted the OAG’s motion and dismissed Brock’s petition because it failed to establish that the trial court lacked jurisdiction over his criminal trial; and he had other adequate legal remedies he could have pursued to protect his rights. Brock v. Duffey, 4th Dist. Hocking No. 13CA25.
{¶ 6} The case sub judice commenced in May 2014 when the OAG filed a vexatious litigator complaint against Brock. Brock filed a
{¶ 7} In August 2014, the trial court filed a judgment entry granting summary judgment in favor of the OAG. The trial court declared Brock a vexatious litigator under
{¶ 8} Shortly thereafter, Brock filed an appeal from the trial court’s decision without first obtaining leave from the court of appeals to proceed pursuant to
{¶ 9} On December 18, 2014, this court found that the error regarding the motion for leave to appeal was not jurisdictional and ruled that Brock’s motion for leave to appeal was timely filed on or before September 5, 2014. Brock and the OAG subsequently filed appellate briefs for this court to consider. In our December 2014 decision we specifically instructed that this appeаl be limited to the trial court’s determination that Brock is a vexatious litigator.
II. Assignment of Error
{¶ 10} Brock’s sole assignment of error:
BROCK MAY BE DESIGNATED A VEXATIOUS LITIGATOR BY R.C.2323.52 ONLY IF CASE NO.13AP25 IS A CIVIL CASE. IF CASE NO.13AP25 IS A CIVIL CASE THIS FOURTH DISTRICT
APPELLATE COURT HAS NOT YET HELD THE MANDATORY HEARING REQUIRED PURSUANT TO R.C.2969.24(C).
III. Standard of Review
{¶ 11} We review the trial court’s decision on a motion for summary judgment de novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court’s decision and independently review the record and the inferences that сan be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.
{¶ 12} Summary judgment is appropriate only when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds cаn come to only one conclusion, and that conclusion is adverse to the nonmoving party.
IV. Analysis
{¶ 13} Brock appeals the trial court’s summary judgment against him. He argues that he is not a vexatious litigator. Instead, he contends that he is just being persistent in trying to make this court understand that his prеsent incarceration is illegal. Brock fashions a creative argument. He basically argues that he cannot be considered a vexatious litigator because he has not been afforded a hearing on the OAG’s motion to dismiss his petition for habeas corpus that he filed before this court in December 2013. Brock first sets forth the premise that he can be designated as a vexatious litigator if his habeas corpus case is a civil case. He then argues that if his habeas corpus case is indeed categorized as a civil case, then he was entitled to a mandatоry hearing pursuant to
First Assignment of Error: This appeal should be dismissed with prejudice because it is procedurally defective.
Second Assignment of Error: The trial court did not err in granting appellee’s motion for summary judgment, declaring appellant a vexatious litigator, and imposing vexatious litigator restrictions against appellant.
Procedurally, the labeling of the “assignments of error” is improper. However, App.R. 3(C)(2) provides thаt a party “who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice of cross appeal or to raise a cross-assignment of error.” Here, the OAG has raised the argument in its “First Assignment of Error” that Brock‘s appeal should be dismissed with prejudice because it is procedurally defective. The OAG was not required to raise a cross-assignment of error to make the argument that the appeal was procedurally defective. This argument could have been properly presented as an argument in the OAG’s brief or as a motion to dismiss under App.R. 15. We will, therefore, consider the OAG‘s argument regarding Brock‘s appeal being procedurally defective below.
{¶ 15} The OAG argues that Brock‘s appeal is рrocedurally defective. The OAG alleges that Brock failed to file a complete waiver of the pre-payment requirement as required by
{¶ 16}
(A) At the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit that contains a description of each civil action or appeal of a civil aсtion that the inmate has filed in the previous five years in any state or federal court. The affidavit shall include all of the following for each of those civil actions or appeals:
(1) A brief description of the nature of the civil action or appeal;
(2) The case name, сase number, and the court in which the civil action or appeal was brought;
(3) The name of each party to the civil action or appeal;
(4) The outcome of the civil action or appeal, including whether the court dismissed the civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether the court made an award against the inmate or the inmate‘s counsel of record for frivolous conduct under section 2323.51 of the Revised Code, another statute, or a rule of court, and, if the court so dismissed the action or appeal or made an award of that nature, the date of the final order affirming the dismissal or award.
***
(C) If an inmate who files a civil action or appeal against a government entity or employee seeks a waiver of the prepayment of the full filing fees assessed by the court in which the action or appeal is filed, the inmate shall filе with the complaint or notice of appeal an affidavit that the inmate is seeking a waiver of the prepayment of the court‘s full filing fees and an affidavit of indigency. The affidavit of waiver and the affidavit of indigency shall contain all of the following: (1) A statement that sets forth the balanсe in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier;
(2) A statement that sets forth all other cash and things of value owned by the inmate at that time.
{¶ 17} “The requirements of
{¶ 19} This court stated in Simms v. Lane, 4th Dist. Hocking No. 95CA25, 1996 WL 451360, *1 (Aug. 5, 1996):
Although we have consistently afforded considerable leniency in pro se actions brought by indigent prisoners, see Wright v. Morris (May 9, 1994), Ross App. No. 93CA1955, unreported and Besser v. Griffey (1993), 88 Ohio App.3d 379, 382, such leniency is not without limitation. State ex rel. Karamasu v. Tate (1992), 83 Ohio App.3d 199, 206.
We are subject to limits set forth by the Ohio Supreme Court when it states: “The requirements of
{¶ 20} Brock has filed many different actions and appeals in the courts throughout Ohio. Even though he is representing himself, from filing the numerous cases, he should be well aware of the requirements of
{¶ 21} Brоck has failed to comply with the procedural requirements of
V. Conclusion
{¶ 22} This court is cognizant of Brock’s concerns that he believes that the merits of his habeas corpus case have never actually been heard. However, Brock’s failure to comply with the procedures outlined in
APPEAL DISMISSED.
It is ordered that the APPEAL BE DISMISSED. Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. and McFarland, A.J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.