COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69302 RONALD INGHRAM, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF SHEFFIELD LAKE, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION MARCH 7, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 277502 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellees City of Sheffield Lake, City MICHAEL TROY WATSON, ESQ. of Sheffield Lake Police Dept., Watson & Watson City of North Royalton, City of 1367 East Sixth Street North Royalton Police Dept.: Suite 400 Cleveland, Ohio 44114 TODD M. RASKIN, ESQ. JOHN T. McLANDRICH, ESQ. Mazanec, Raskin & Ryder Co., L.P.A. 100 Franklin's Row 34305 Solon Road Cleveland, Ohio 44139 [continued on next page] TIMOTHY T. SMITH, ESQ. Law Director - City of Sheffield Lake 609 Harris Road Sheffield Lake, Ohio 44054 For Defendant-Appellee Steven W. Bansek: MICHAEL L. GOLDING, ESQ. Janik & Dunn 8221 Brecksville Road Building Two Cleveland, Ohio 44141 - 3 - JAMES M. PORTER, J., Plaintiffs-appellants Mr. and Mrs. Ronald M. Inghram appeal from an order of the trial court dismissing their claims against defendants-appellees City of Sheffield Lake and its police department, The City of North Royalton and its police department and Steven W. Bansek, the Clerk of the Lorain Municipal Court. Plaintiffs' claims for libel, slander, malicious prosecution, false arrest, abuse of process and negligence arose out of Mr. Inghram's arrest on a mistaken identification. Plaintiffs claim the trial court erred in dismissing for failure to state a claim on grounds of the defendants' statutory immunity. We find no error and affirm. Plaintiffs' complaint alleged that on or about January 25, 1993, Mr. Inghram was lawfully on the premises of Sunrise Cove, 5833 Royalton Road, North Royalton, Ohio, where he was providing contract services for the owner of the premises. Upon realizing that he had locked his keys inside his car, Inghram contacted the North Royalton Police Department and requested police assistance in unlocking his car. When the North Royalton officers arrived, plaintiff was mistaken for another individual, Ronald Ingram (without the "h") of 848 Irving Park Road, Sheffield Lake, Ohio, a defendant in State of Ohio/City of Sheffield Lake v. Ronald Ingram, Lorain Municipal Court Case No. 93-CR-0135. An outstanding warrant for - 4 - the other Ronald Ingram's arrest existed for passing bad checks, a misdemeanor of the first degree. Plaintiff Inghram identified himself as Ronald M. Inghram (with the "h") residing at 12851 Walnut Hills Road, North Royalton, Ohio. Plaintiffs claimed that the North Royalton policeman negligently placed information into the police computer indicating that this Inghram was the Ingram/defendant in the Sheffield Lake prosecution and that he had passed bad checks. This was done without including the accurate social security number, date of birth, or address of the proper defendant in the criminal case. Plaintiffs also specifically alleged that defendant Steven W. Bansek, Clerk of the Lorain Municipal Court, submitted a report which directly or indirectly resulted in the harm sustained by plaintiffs. Plaintiffs' complaint was filed on September 29, 1994. The defendants moved to dismiss for failure to state a claim upon which relief could be granted pursuant to Civ. R. 12(B)(6) on grounds of statutory immunity. Following briefing, the trial court granted the motions on June 20, 1995, based on its finding "that plaintiffs fail to state a claim upon which relief can be granted pursuant to Civ. R. 12(B)(6)." This timely appeal ensued. Plaintiffs' sole assignment of error states as follows: - 5 - I. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS' MOTION TO DISMISS FINDING THAT THE PLAINTIFFS FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO CIVIL RULE 12(B)(6). The standard of review for a dismissal pursuant to Civ. R. 12(B)(6) was recently stated by this Court in Thompson v. Cent. Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538: 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. (1992), 65 Ohio St.3d 545, 605 N.E.2d 378. It is well settled that "when a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the non-moving party." Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, 589, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. However, while the factual allegations of the complaint are taken as true, the same cannot be said about unsupported conclusions. "Unsupported conclusions of a complaint are not considered admitted, *** and are not sufficient to withstand a motion to dismiss.***" (Citations omitted.) State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d 639. In resolving a Civ. R. 12(B)(6) motion, courts are confined to the averments set forth in the complaint and cannot consider outside evidentiary materials unless the motion is converted, with appropriate notice, into one for summary judgment under Civ. R. 56. State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 563 N.E.2d 713. In order for a court to grant a motion to dismiss for failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." O'Brien v. - 6 - Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 224, 327 N.E.2d 753, 755. (Citations omitted in the original.) The key issue on this appeal is whether the defendant Cities are immune from the plaintiffs' claims under R.C. Chap. 2744 dealing with sovereign immunity. R.C. 2744.02 provides in pertinent part as follows: (A)(1). For purposes of this Chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. R.C. 2744.01(C)(2) defines, inter alia, a "governmental function" to include the "provision or non-provision of police *** services." Although the immunity provided by R.C. 2744.02(A) is subject to the exceptions provided in subsection (B), those exceptions have no application to the case at bar. Plaintiffs argue that the defendants are not entitled to immunity as the individual officers acted in bad faith and in a malicious manner. Plaintiffs rely upon R.C. 2744.03(A)(6) for an exception to the immunity of the individual police officers. However, as was held in Nungester v. Cincinnati (1995), 100 Ohio App.3d 561, a case relied upon by plaintiffs: - 7 - By its terms, R.C. 2744.03(A)(6) involves an exception only to the immunity of subdivision employees not the subdivision itself. Nungester, supra at 566. See, also, Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 356. ("R.C. 2744.03(A)(6) by its very terms applies only to individual employees and not to political subdivisions"). Pursuant to Nungester and Fabrey, the bad faith/malice exception contained in R.C. 2744.03(A)(6) clearly applies only to the employees (i.e., the police officers) of the political subdivision and not the political subdivision itself. Therefore, the named defendants, the City of North Royalton and the City of Sheffield Lake, are immune from the plaintiffs' claims notwithstanding any allegations of maliciousness, willful or reckless conduct against the officers, who are not parties. The analysis in support of this conclusion is set forth in Nungester, as follows: In Ohio, immunity from civil liability is provided to a city and its employees under the Political Subdivision Tort Liability Act, R.C. Chapter 2744. The general rule is that such immunity applies to shield the exercise of governmental or proprietary functions unless the injured party is entitled to rely on one of the exceptions specifically recognized by statute. R.C. 2744.02(A)(1). In this case, Nungester argues that his complaint was sufficiently pleaded to invoke three of the statutory exceptions: (1) it alleged liabil-ity under R.C. 2744.03(A)(6) for acts committed by city employees "with malicious purpose, in bad faith, or in a wanton or reckless manner"; (2) it stated claims against the city that arose out of his employment relationship with the city, R.C. - 8 - 2744.09(B); and (3) it based claims on alleged violations of federal law and the U.S. Constitution. For the following reasons, we are convinced that the complaint stated some claims upon which relief conceivably could have been granted under two of the exceptions. By its terms, R.C. 2744.03(A)(6) involves an exception only to the immunity of subdivision employees, not the subdivision itself. The applicability of the exception in this case must, accordingly, be determined primarily in the context of the state-law claims asserted against the city employees. *** Id. at 565-566. Therefore, even assuming, arguendo, that the plaintiffs' complaint adequately pled malicious, willful, wanton or reckless conduct, as is alleged, or by virtue of alleging a claim for malicious prosecution, or false arrest or false imprisonment, said allegations are insufficient to deprive the City of Sheffield Lake or the City of North Royalton of their state law sovereign immunity. Nungester affirmed the dismissal of the claims against Cincinnati. See, also, Williams v. Franklin County (1992), 84 Ohio App.3d 826, 830. We overrule the plaintiffs' assignment of error as it pertains to the City of Sheffield Lake and the City of North Royalton. It is well-established under Ohio law that court clerks and other court employees have absolute immunity against suits arising out of the performance of judicial or quasi-judicial activities. Foster v. Walsh (C.A.6, 1988), 864 F.2d 417, 418; - 9 - Denman v. Leedy (C.A.6, 1973), 479 F.2d 1097, 1098; Kelly v. Whiting (1985), 17 Ohio St.3d 91, 93-94; Baker v. Court of Common Pleas of Cuyahoga County (1989), 61 Ohio App.3d 59, 64. Courts that have addressed the issue have held that a court clerk who issues a warrant has absolute immunity against any suit based upon the warrant or its issuance because the clerk is performing a judicial function in issuing a warrant. See Foster, supra; Rogers v. Bruntager (C.A.8, 1988), 841 F.2d 853, 856; Williams v. Wood (C.A.5, 1980), 612 F.2d 982, 985; Harper v. New Philadelphia Municipal Court (June 8, 1995), Franklin App. No. 94APE12-1806, unreported. In Foster, the United States Court of Appeals for the Sixth Circuit held that a municipal court clerk who issued an erroneous bench warrant on a judge's order was absolutely immune from liability because the issuance of the warrant was a judicial function. The plaintiff, David Foster, was arrested by the Ohio Highway Patrol pursuant to an outstanding warrant for failure to pay a traffic fine. The Akron Municipal Court had issued an arrest warrant even though Foster had already paid the fine. Following his arrest, Foster sued the Akron Municipal Court, its court referee and its clerk of courts in federal court under 42 U.S.C. 1983. The court clerk and the court referee moved to dismiss the complaint on the grounds that they enjoyed absolute immunity from suit for actions performed within the course and scope of their employment as judicial officers. The district - 10 - court dismissed the complaint as to the court referee, but refused to dismiss Foster's claims against the clerk of court. On appeal, the United States Court of Appeals for the Sixth Circuit reversed the district court, concluding that the doctrine of absolute immunity applied and that the complaint against the clerk of court should have been dismissed on the basis of that doctrine. The Sixth Circuit found it immaterial that the clerk may have made an error in carrying out the judge's instructions regarding the warrant. In the Sixth Circuit's view, the important consideration was whether the issuance of the arrest warrant for Foster was a judicial function or a non-judicial function. In resolving this issue in favor of the clerk, the Sixth Circuit stated: We have no difficulty concluding that the issuance of the warrant for Mr. Foster's arrest, even though non-discretionary, was a "truly judicial act." Because Clerk Walsh enjoyed absolute immunity from suit in connection with the issuance of the arrest warrant, he was entitled to the dismissal he sought. Id. at 417-418. Similarly in Harper v. New Philadelphia, supra, the Franklin County Court of Appeals found the clerk of the New Philadelphia Municipal Court to be immune from liability for issuing an erroneous arrest warrant for the plaintiff's failure to pay taxes even though his appearance before the court had been excused due to the fact plaintiff had already paid the tax. The clerk issued the warrant pursuant to the court's order. The Court of Appeals - 11 - affirmed the trial court's order granting the clerk's motion for summary judgment and held that "the protection from civil liability afforded to judges, also shields agents of the court who are acting under the direction of the court." Id. at 3. The decisions in Foster and Harper are consistent with other Ohio cases holding that court clerks have absolute immunity in the performance of judicial functions, such as the issuance of a warrant. See, e.g., Kelly v. Whiting (1985), 17 Ohio St.3d 91, 94 (Cuyahoga County Clerk of Courts immune from civil suit charging wrongful execution of a capias); Blankenship v. Enright (1990), 67 Ohio App.3d 303, 312 (Clerk of common pleas court was immune from liability for alleged negligence in failing to record the judge's withdrawal of a capias, which resulted in the plaintiff's arrest); Baker v. Court of Common Pleas of Cuyahoga County (1989), 61 Ohio App.3d 59, 64 (Deputy clerks of Cuyahoga County Common Pleas Court were protected by judicial immunity for their alleged intentional or negligent issuance of false certificates of judgment). Although plaintiffs sued Bansek individually, their claims against Bansek are based upon actions that Bansek performed as the Clerk of Courts for the Lorain Municipal Court. The issuance of a warrant, even if erroneous, is a judicial function to which absolute immunity attaches. Foster, supra, 864 F.2d at 417; Harper, supra, at 3. Regardless of the propriety of the warrant or the arrest based upon that warrant, the fact remains that Bansek issued an arrest warrant for Ronald Ingram pursuant to a judge's direction. In doing so, Bansek was performing a judicial - 12 - function and has absolute immunity against any claims arising out of that act. Plaintiffs' assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellees recover of appellants its 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 Court of Common Pleas 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. JAMES D. SWEENEY, P.J., and DYKE, J., CONCUR. JAMES M. PORTER 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 .