[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 nonmoving 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 motionto-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. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

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).