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

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MARK E. HURST 

 Plaintiff-Appellant 

-vsJOBES, HENDERSON ASSOC., et al. 

 Defendants-Appellees 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 13 CA 103 

O P I N I O N 

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-Ohio6363, 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