State ex rel. Jones v. The Ohio Adult Parole Auth.

• Decision Date: 25 April 2023
• Docket Number: 22AP-605
• Citation: 2023 Ohio 1340
• Parties: State ex rel. James S. Jones, Relator, v. The Ohio Adult Parole Authority, Respondent.
• Court: Ohio Court of Appeals

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2023-Ohio-1340

State ex rel. James S. Jones, Relator, v. The Ohio Adult Parole Authority, Respondent.

No. 22AP-605

Court of Appeals of Ohio, Tenth District

April 25, 2023

IN MANDAMUS

On brief:

James S. Jones, pro se.

On brief:

Dave Yost, Attorney General, and D. Chadd McKitrick, for respondent.

DECISION

BEATTY BLUNT, P.J.

{¶ 1} Relator, James S. Jones, has filed this original action requesting that this court issue a writ of mandamus ordering respondent, the Ohio Adult Parole Authority ("OAPA") to cease employing discretionary powers with regard to relator's parole. OAPA has filed a motion to dismiss pursuant to Civ.R. (12)(B)(6).

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate. The magistrate considered the action on its merits and issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate concluded that relator cannot demonstrate that respondent had a clear legal duty to grant relator parole or that relator had a clear legal right to parole. Accordingly, the magistrate recommended this court grant OAPA's motion to dismiss and dismiss relator's complaint.

{¶ 3} No objections have been filed to the magistrate's decision.

{¶ 4} Upon review, we have found no error in the magistrate's findings of fact or conclusions of law.

{¶ 5} Therefore, we adopt the magistrate's decision as our own, including the findings of fact and the conclusions of law therein. In accordance with the magistrate's decision, we grant the motion of OAPA to dismiss for failure to state a claim pursuant to Civ.R 12(B)(6) and dismiss relator's complaint in which he seeks an order for a writ of mandamus. We further find moot relator's December 1, 2022 motion to dismiss respondent's memorandum to dismiss.

Respondent's motion to dismiss granted;action dismissed.

JAMISON and LELAND, JJ., concur.

MAGISTRATE'S DECISION

IN MANDAMUS ON RESPONDENT'S MOTION TO DISMISS

JOSEPH E. WENGER IV MAGISTRATE JUDGE.

{¶ 6} Relator, James S. Jones, has filed this original action seeking a writ of mandamus ordering respondent, Ohio Adult Parole Authority, to cease employing discretionary powers with regard to relator's parole. Respondent has filed a motion to dismiss pursuant to Civ.R. 12(B)(6).

Findings of Fact:

{¶ 7} 1. Relator is incarcerated at the Madison Correctional Institution in London, Ohio at the time of the filing of this action.

{¶ 8} 2. Respondent is an administrative unit of the Ohio Department of Rehabilitation and Correction.

{¶ 9} 3. In his complaint, relator alleges he was convicted on May 26, 1987 and sentenced to five consecutive three-year gun specifications to run consecutive to a 15-to-25-year indefinite term of incarceration. As of the time of the complaint's filing, relator had served 35 years and 8 months of his sentence. Relator alleges he had a parole hearing in May 2014, at which time his parole consideration was continued for 95 months. (Compl. at 2.) Relator had a subsequent parole hearing in March 2022, at which time his parole consideration was continued for 35 months. (Compl. at 4.)

{¶ 10} 4. Relator filed a complaint in mandamus in the instant action on October 3, 2022. In his complaint, relator alleges respondent has violated his due process right to a fair and meaningful parole hearing. Relator requested an order for respondent to "cease and desist any and all discretionary power over relator's parole hearings as well as have [respondent] to pay all court cost and fees and grant relator relief by way of time served." (Compl. at 2.)

{¶ 11} 5. On November 3, 2022, respondent filed a motion to dismiss pursuant to Civ.R. 12(B)(6).

{¶ 12} 6. On December 1, 2022, relator filed a "motion to dismiss respondent's memorandum to dismiss."

{¶ 13} 7. The original action is now before the magistrate on respondent's motion to dismiss. Discussion and Conclusions of Law:

{¶ 14} A motion to dismiss for failure to state a claim is procedural and tests the sufficiency of the complaint itself and any attached documents. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992), citing Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). Attachments to the complaint are considered part of the complaint for all purposes. Civ.R. 10(C).

{¶ 15} A court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the nonmoving party. Red Foot Racing Stables v. Polhamus, 10th Dist. No. 19AP-390, 2020-Ohio-592, ¶ 11, citing State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5. "Before the court may dismiss the complaint, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling the plaintiff to recovery." Jones v. Dann, 10th Dist. No. 09AP-352, 2009-Ohio-5976, ¶ 9, citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. Provided there is a set of facts, consistent with the complaint, under which the complaining party could recover, a court may not grant a motion to dismiss for failure to state a claim. Prime Invests., LLC v. Altimate Care, LLC, 10th Dist. No. 20AP-526, 2022-Ohio-1181, ¶ 23, citing York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991). However, a court need not accept as true any unsupported and conclusory legal propositions presented in the complaint. Bullard v. McDonald's, 10th Dist. No. 20AP-374, 2021-Ohio-1505, ¶ 11, citing Morrow v. Reminger & Reminger Co. LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.).

{¶ 16} In order for a court to issue a writ of mandamus, a relator must establish (1) the relator has a clear legal right to the relief requested, (2) the respondents are under a clear legal duty to provide the relief, and (3) the relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983), citing State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 42 (1978). "A complaint in mandamus states a claim if it alleges 'the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted.'" State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), quoting State ex rel. Alford v. Willoughby, 58 Ohio St.2d 221, 224 (1979).

{¶ 17} When determining whether a relator's complaint states a claim for a writ, a court may take judicial notice of the pleadings and orders in related cases when these are not subject to reasonable dispute insofar as they affect the current original action. Evid.R. 201(B); State ex rel. Ohio Republican Party v. Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, ¶ 18; State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, ¶ 8. "Ohio courts may take judicial notice in 'writ action[s] without converting * * * [a] dismissal motion to a motion for summary judgment.'" State ex rel. Mobley v. O'Donnell, 10th Dist. No. 20AP-193, 2021-Ohio-715, ¶ 9, quoting State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228 (2000). See Pearson v. Columbus, 10th Dist. No. 14AP-313, 2014-Ohio-5563, ¶ 17, quoting State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, ¶ 10 (stating that a court is permitted to "take judicial notice of 'appropriate matters' in determining a Civ.R. 12(B)(6) motion without converting it to a motion for summary judgment").

{¶ 18} In his complaint, relator seeks an order directing respondent to cease employing discretionary powers with regard to relator's parole and to grant relief in the form of time served. Respondent argues relator's complaint must be dismissed for failing to state a claim upon which relief can be granted for two reasons. First, respondent contends relator has failed to comply with the mandatory filing requirements in R.C. 2969.25(A).

{¶ 19} R.C. 2969.25(A) and (C) provide procedural requirements for inmates commencing a civil action or appeal against a government entity or employee. See State ex rel Foster v. Foley, ___ Ohio St.3d ___, 2022-Ohio-3168, ¶ 10; State ex rel Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6. Compliance with the requirements of R.C. 2969.25(A) and (C) is mandatory, and failure to comply warrants dismissal. Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859, ¶ 1. Furthermore, substantial compliance with the requirements of R.C. 2969.25(A) or (C) is not sufficient. State ex rel McGlown v. Mohr, 10th Dist. No. 14AP-478, 2015-Ohio-1554, ¶ 9, citing State ex rel Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4.

{¶ 20} Under R.C. 2969.25(A), an inmate commencing a civil action in the court of appeals must file an affidavit containing a "description of each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court." To comply with R.C. 2969.25(A), the filed affidavit must include all of the following:

(1) A brief description of the nature of the civil action or appeal;

(2) The case name, case number, and the court in which the civil action or appeal was brought;

(3) The name of each party to the civil action or appeal;

(4) The outcome of the civil action or appeal, including whether the court dismissed the civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether the court made an award against the inmate or the inmate's counsel of record for frivolous conduct under section 2323.51 of the Revised Code, another statute or a rule of court, and, if the court so dismissed the action or appeal or made an award of that

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