COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60821 MARK S. SHEFCHECK, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION JUDGE SAM A. ZINGALE, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 2, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 195,881 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Mark S. Shefcheck, Pro Se 6783 York Road Apt. No. 102 Parma Heights, Ohio 44130 For defendants-appellees: Ernest A. Szorady Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Eighth Floor Cleveland, Ohio 44113 -2- NAHRA, P.J.: Mark S. Shefcheck appeals from the dismissal of his complaint against two judges. For the reasons set forth below, we affirm. Shefcheck was charged in the city of Euclid with aggravated burglary in July of 1988. Apparently Euclid Municipal Court Judge Niccum set his bond at $50,000.00. In August, prior to his arraignment in the Cuyahoga County Court of Common Pleas, Shefcheck filed a motion to reduce his bond from $50,000.00 to $1,000.00. In September, Shefcheck was arraigned in the Court of Common Pleas and his bond was set at $10,000.00. Shefcheck was charged with five counts of aggravated burglary and four counts of theft. In March of 1989, Shefcheck plead guilty to the four theft counts and the aggravated burglary counts were nolled. He was sentenced to 3 - 5 years and costs, with credit for time served. On August 25, 1990, Shefcheck filed a complaint against Judges Francis Sweeney and Sam A. Zingale of the Cuyahoga County Court of Common Pleas. He claimed that the judges recklessly failed to adjudicate his motion for bond reduction, which deprived him of his constitutional rights and caused him mental suffering. The defendant judges filed a motion to dismiss pursuant to Civ. R. 12, asserting judicial immunity among other defenses. The trial court granted the motion. Shefcheck timely appealed, assigning one error as follows: -3- THE TRIAL COURT VIOLATED BOTH SECTION 5 OF ARTICLE I OF THE CONSTITUTION OF OHIO AND CIV. R. 38 WHEN IT GRANTED DEFENDANT'S MOTION TO DISMISS OVER APPELLANT'S TIMELY OBJECTION AND IS THEREFORE A DIRECT VIOLATION OF APPELLANT'S lST AMENDMENT RIGHT OF THE UNITED STATES CONSTITUTION TO PETITION THE GOVERNMENT FOR THE REDRESS OF GRIEVANCES. "A judge is immune from civil liability for actions taken within his judicial capacity." Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App. 3d 59, 64. "For civil liability to exist, a judge must lack jurisdiction, either personal or subject matter, and take some action in a judicial capacity which violates the rights of a party to the lawsuit." Wilson v. Neu (1984), 12 Ohio St. 3d 102, 104. In Hopkins v. INA Underwriters Ins. Co. (1988), 44 Ohio App. 3d 18, a probate judge allegedly failed to require the filing of an inventory within the statutory time frame, did not require the filing of an account, released a surety without requiring a substitute, allowed the distribution of wrongful death proceeds without the signature of the fiduciary, etc. The court found that judicial immunity applied, because the judge had jurisdiction and "the averred acts of misfeasance and nonfeasance by Judge Cline concern acts solely of a judicial or discretionary capacity". Id. at 188. In this case, appellant claimed injury arising out of the judges' failure to rule on his bond reduction motion. Since ruling on a motion is an act within a judge's judicial capacity, and since there is no indication that the judges lacked -4- jurisdiction, judicial immunity applies to this alleged failure to act. Appellant's assignment of error is overruled. Affirmed. Affirmed. It is ordered that appellees recover of appellant their 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 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. PATTON, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .