Opinion
No. 91-780
Submitted June 4, 1991 —
Decided August 28, 1991.
APPEAL from the Court of Appeals for Franklin County, No. 90AP-1052.
On September 4, 1990, relator-appellant, Lani R. Smith, an inmate at the Chillicothe Correctional Institution, commenced an action in mandamus in the court of appeals alleging a due-process violation at his parole revocation hearing. On September 26, 1990, respondents-appellees, the Adult Parole Authority and its Chief, filed a motion to dismiss the action pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. On February 11, 1991, the court of appeals granted appellees' motion to dismiss.
Appellant moved to amend his complaint eleven days later on February 22, 1991. This motion was denied by the court. Appellant then filed his notice of appeal to this court with the court of appeals on March 7, 1991. He then filed that notice with this court on April 15, 1991.
The cause is before this court upon an appeal as of right.
Lani R. Smith, pro se. Lee I. Fisher, Attorney General, and Steven W. Ritz, for appellee.
We affirm the decision of the court of appeals. Even though appellant did not file a copy of his notice of appeal in this court within thirty days of filing it with the court of appeals as required by Section 1(B), Rule I of the Rules of Practice of the Supreme Court of Ohio, we exercise our discretion and decline to dismiss the appeal under Section 1, Rule II. This section states that for a violation of Section 1(B), Rule I, "the Supreme Court may refuse to accept such copy for filing or may dismiss the appeal, on its own motion or on motion of a party, for lack of prosecution." (Emphasis added.)
Appellant's complaint stated that he had a hearing, but that he had not received the due process afforded him by Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. However, the complaint failed to state any specific violations of the Morrissey requirements or to plead sufficient facts or offer any proof that would entitle him to a writ of mandamus. We held in Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 193, 532 N.E.2d 753, 756, that unsupported conclusions are not considered admitted and are not sufficient to withstand a motion to dismiss.
After the final judgment was entered, appellant moved to amend his complaint to state a cause of action upon which relief could be granted. The court of appeals denied that motion. Appellant contends that his amendment should be allowed pursuant to Civ.R. 15.
Appellant's reliance on Civ.R. 15 is misguided. His amendment was not timely made and no apparent reason was given for the delay. The court in Meadors v. Zaring Co. (1987), 38 Ohio App.3d 97, 99, 526 N.E.2d 107, 109, held that "[w]here a motion for leave to amend is not timely tendered and no reason is apparent to justify the delay, a trial court does not abuse its discretion in refusing to allow the amendment."
For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.