Mancino v. City of Lakewood

• Decision Date: 07 April 1987
• Docket Number: No. 51818,51818
• Citation: 523 N.E.2d 332,36 Ohio App.3d 219
• Parties: MANCINO, Appellee, v. CITY OF LAKEWOOD; Drescher, Appellant.
• Court: Ohio Court of Appeals

Page 219

36 Ohio App.3d 219

523 N.E.2d 332

MANCINO, Appellee, v. CITY OF LAKEWOOD; Drescher, Appellant.

No. 51818.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 7, 1987.

Syllabus by the Court

1. Generally, prisoners who bring civil actions have no constitutional right to be personally present at any stage of the judicial proceedings.

2. Whether a prisoner should be permitted to be brought to trial to argue his case personally depends upon the particular circumstances

each case. The following criteria are to be weighed in making this determination which is committed to the sound discretion of the court: (1) whether the prisoner's request to be present at trial reflects something more than a desire to be temporarily freed from prison; (2) whether he is capable of conducting an intelligent and responsive argument; (3) the cost and convenience of transporting the prisoner from his place of incarceration to the courthouse; (4) any potential danger or security risk the prisoner's presence might pose; (5) the substantiality of the matter at issue; (6) the need for an early resolution of the matter; (7) the possibility and wisdom of delaying the trial until the prisoner is released; (8) the probability of success on the merits; and (9) the prisoner's interest in presenting his testimony in person rather than by deposition.

3. Ohio courts recognize an attorney's equitable right to enforce an attorney's lien for the payment of fees earned in the prosecution of litigation to judgment.

Paul Mancino, Jr., Cleveland, pro se.

Mario Drescher, pro se.

McMANAMON, Judge.

Mario Drescher ("the prisoner") is presently serving what he states is "a sentence [in excess of] one hundred years" at the Southern Ohio Correctional Facility on a matter unrelated to this case. In persona propria he challenges a decision by the common pleas court in favor of his former attorney, Paul Mancino, Jr. ("the lawyer") on a contingent fee contract.

Drescher raises two assignments of error and four supplemental assignments of error. ¹ Since there may be merit to the prisoner's first supplemental assignment of error, we reverse and remand for proceedings consistent with this opinion.

The record reflects that the lawyer filed a complaint against the prisoner and the city of Lakewood to enforce an attorney's lien on a settlement agreement. The lawyer alleged that on or about November 27, 1981, he entered into a written agreement with his then-client, to pursue legal action necessary to recover jewelry, coins and other valuables including two guns, all of which are valued at $40,000, belonging to the prisoner, which were held by the Lakewood police. A copy of this agreement was attached as an exhibit to the lawyer's complaint. In December 1984, the lawyer instituted an action on behalf of the prisoner in the United States District Court for the Northern District of Ohio, case No. C82-2744, pursuant to Section 1983, Title 42, U.S.Code.

The record further reflects that the parties in the federal court lawsuit reached a settlement agreement, which required the city of Lakewood to return the prisoner's property to him, with the exception of the weapons. The terms of the settlement agreement and dismissal entry require both the lawyer and the prisoner to execute a release of all claims against the city. The lawyer refused to sign the release until the prisoner paid the promised compensation. The city of Lakewood apparently has not returned the property.

The prisoner answered the complaint, contending that he had not been served with it; that the complaint The case was tried to the court on February 2, 1986 upon plaintiff's complaint and defendant's answer, together with evidence presented at the hearing. The court found the allegations of the complaint to be true, and ordered that, pursuant to the contract of employment, the lawyer is entitled to recover forty percent of the property currently in the possession of the city of Lakewood or forty percent of its value, and that the remaining sixty percent of the items, less costs and attorney fees, be returned to the prisoner.

the settlement agreement in the federal court case; and that the lawyer forged the prisoner's name on the settlement agreement.

In his first supplemental assignment of error, the prisoner essentially argues that the trial court erred in failing to permit him to be present at trial when he made every attempt to defend himself in this action.

The record demonstrates that the trial court declined to rule on the prisoner's motion to compel the sheriff to transport him from the prison in Lucasville, Ohio, where he was incarcerated, to the Cuyahoga County Justice Center for trial. Consequently, the prisoner did not appear at trial, nor was he represented by counsel.

A ruling on the request of an incarcerated criminal to prosecute a pro se civil action by requiring penal authorities to transport him to a preliminary hearing or trial rests within the sound discretion of the trial court. Holt v. Pitts (C.A.6, 1980), 619 F.2d 558, 560-561. Generally, prisoners who bring civil actions have no constitutional right to be personally present at any stage of the judicial prceedings. Id. As the United States Supreme Court has stated:

"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by § 272 of the Judicial Code, 28 U.S.C. § 394 [now Section 1654, Title 28, U.S.Code], to parties in all courts of the United States to 'plead and manage their own causes personally.' " Price v. Johnston (1948), 334 U.S. 266, 285-286, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356.

There is no support in the Constitution or in judicial precedent for the proposition that a prisoner has an absolute due process right to attend the trial of a civil action to which he is a party. Any such right must be balanced against the state's interest in avoiding the risks and expenses of transportation. In re Warden (C.A.7, 1976), 541 F.2d 177, 180-181. See, also, Tabor v. Hardwick (C.A.5, 1955), 224 F.2d 526, 529, certiorari denied (1956), 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843; McKinney v. Boyle (C.A.9, 1971), 447 F.2d 1091, 1094; Clark v. Hendrix (N.D.Ga.1975), 397 F.Supp. 966, 969. We note that prisoners have been extended access to law libraries and jailhouse lawyers to assist them in prosecuting lawsuits. Johnson v. Avery (1969), 393 U.S. 483, 487, 89 S.Ct. 747, 749, 21 L.Ed.2d 718. However, the United States Supreme Court specifically has chosen not to extend to them the Fourteenth Amendment due process right to physical access to the courts. Wolff v. McDonnell (1974), 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935, 71 O.O.2d 336, 352. See Drescher v. Summers (1986), 30 Ohio App.3d 271, 273, 30 OBR 469, 471, 507 N.E.2d 1170, 1172 (Jackson, J., concurring); cf. In re Colburn (1987), 30 Ohio St.3d 141, 30 OBR 452, 507 N.E.2d 1138.

Whether a prisoner should be permitted to be brought to trial to argue his case personally depends upon the particular circumstances of each case. We hold that the following criteria are to be weighed in making this determinations The record in the instant case reflects that the prisoner pursued his defense against his lawyer's claim with due diligence. The prisoner answered the complaint; drafted a new "release of claims" form; informally corresponded with the city of Lakewood; moved the court to stay a pretrial order, or, in the alternative, for an order to convey him from the Southern Ohio Correctional Facility to Cuyahoga County to attend an August 19, 1985 pretrial hearing; moved the court for a continuance of the scheduled February 27, 1986 trial date; and demanded a trial by jury. The trial court denied all of these motions. The prisoner then filed an affidavit of prejudice against the trial judge, which was dismissed by the Chief Justice of the Ohio Supreme Court.

                (1) whether the prisoner's request to be present at trial reflects something more than a desire to be temporarily freed from prison;  (2) whether he is capable of conducting an intelligent and responsive argument;  (3) the cost and convenience of transporting the prisoner from his place of incarceration to the courthouse;  (4) any potential danger or security risk the prisoner's presence might pose;  (5) the substantiality of the matter at issue;  (6) the need for an early resolution of the matter;  (7) the possibility and wisdom of delaying the trial until the prisoner is released;  (8) the probability of success on the merits;  and (9) the prisoner's interest in presenting his testimony in person rather than by deposition.   Price v. Johnston, supra, 334 U.S. at 284-285, 68 S.Ct. at 1059-1060;  Stone v. Morris (C.A.7, 1976), 546 F.2d 730, 735-736
                

The prisoner received notice of trial on February 24, 1986, three days prior to trial. The record contains a motion for an order to compel the Cuyahoga County Sheriff to transport him from Lucasville, Ohio to Cleveland so that he could be present at trial. Although not file-stamped by the trial court, this motion is postmarked February 25, 1986, one day after the prisoner received notice of trial, and was made part of the trial record. In the absence of a judgment entry denying the motion, we will presume that the motion was overruled.

While the record contains a document which purports to be a contract, the prisoner maintains that the signature on the document is a forgery, and that the parties had a different, oral agreement. The prisoner faces the prospect of an imminent levy upon a substantial amount of personal property. Nothing in the record indicates that the trial court made a determination, based upon the criteria outlined supra, as to whether the prisoner's presence at trial was reasonably necessary under the particular facts of this case. Accordingly,...