COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70759 : ALLEN RINGEL : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION RONALD ADRINE : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-302839 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: ALLEN RINGEL, pro se SHARON SOBOL JORDAN, ESQ. 1787 Beaconwood Avenue Director of Law South Euclid, Ohio 44121 JOHN L. CULLEN, ESQ. Assistant Director of Law Room 106 City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: Plaintiff-appellant Allen Ringel appeals pro se from orders of the common pleas court granting a motion to dismiss his complaint and denying his motion for summary judgment. On February 5, 1996, Ringel pro se filed a complaint in the common pleas court for money damages against Judge Ronald Adrine. Ringel's complaint alleged Judge Adrine violated his constitutional rights in a prior criminal case against him. Specifically, Ringel's complaint listed "illegal summonsing," excessive bail, cruel or unusual punishment, and excessive fines. Counsel for Judge Adrine filed a motion to dismiss on grounds of res judicata, statutory immunity, and failure to state a claim. Ringel responded with a document captioned "motion for summary judgment," which argued that his action was not barred by res judicata, but did not address the merits of the case or provide any basis for judgment in his favor. Counsel for Judge Adrine filed a brief in opposition which pointed out these defects in Ringel's motion. Ringel thereafter filed a "notice to quash defendants [sic] brief in opposition." In orders journalized May 24, 1996, the common pleas court thereafter granted the motion to dismiss and denied the motion for summary judgment. Ringel timely appeals pro se raising five assignments of error, which are not separately briefed or - 3 - 1 argued. For the following reasons, we affirm the judgment of the trial court in its entirety. The Ohio Supreme Court has recently affirmed the dismissal of a complaint raising claims that were barred by the statutory immunity set forth in R.C. Chapter 2744. Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 667. Ringel's claims against Judge Adrine in this case arise out of rulings made while Judge Adrine was acting in his judicial capacity. As in Strahan, Ringel's complaint did not allege that Judge Adrine was either acting outside the scope of his employment or acting with a malicious purpose, in bad faith, or in a wanton or reckless manner. Nor did Ringel allege that Judge Adrine was expressly made liable pursuant to any section of the Revised Code. As a result, the trial court properly dismissed Ringel's complaint for failure to 2 state a claim. Moreover, dismissal of a complaint which fails to state a claim does not deprive a litigant of a right to jury trial, precisely because the complaint does not raise any cognizable issue for a jury. The trial court likewise properly denied Ringel's "motion for summary judgment." As noted above, defendant's motion for summary judgment opposed the motion to dismiss, but did not 1 Ringel's assignments of error are set forth in the Appendix. 2 We need not address the issue of whether Ringel's complaint was barred by the defense of res judicata. The Ohio Supreme Court has held that this defense may not be raised by a motion to dismiss. State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109. - 4 - address the merits of Ringel's claim or provide any basis for judgment in his favor. It is well established that a motion for summary judgment must be denied when the movant does not affirmatively demonstrate that he is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280. Here, Ringel has failed to produce any evidence to support his claims or demonstrate any other error by the trial court. The trial court was not required to conduct a previously scheduled case management conference or pretrial once the action was no longer pending. Cf. Barnes v. Garetner (July 1, 1993), Cuyahoga App. No. 62738, unreported at pp. 9-10 (failure to file scheduled pretrial statement did not result in any error once final summary judgment was granted). Accordingly, Ringel's five assignments of error are overruled. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant his 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. NAHRA, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). - 6 - APPENDIX ASSIGNMENT OF ERRORS [sic] 1.) Appellant-Plaintiff was denied his day in court as guaranteed by the Ohio and U.S. Constitution Bill of Rights O Const. I sec. 5 Right of Trial by Jury Shall be Preserved. 2.) Trial judge erred by having a CASE MANAGEMENT CONFERENCE on 06MAY96 an [sic] setting PRETRIAL date of 12JUN96 and not allowing all evidence to be presented by appellant pursuant to Rule 56(A). 3.) Trial judge failed to protect plaintiff against cruel and unusual punishment and excessive fines per US and Ohio Constitution Bill of Rights O Const. I sec. 9 Bail; Cruel and Unusual Punishment. 4.) Trial judge set pretrial for June 12, 1996 after review of all dispositive case motions filed by both sides, and about a week later recanted said ruling. 5.) Trial judge based dismisal [sic] on defendants [sic] defective briefs and did not investigate .