State ex rel. Karmasu v. Tate

• Court: Ohio Court of Appeals
• Writing for the Court: STEPHENSON; GREY
• Citation: State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 614 N.E.2d 827 (Ohio App. 1992)
• Decision Date: 29 October 1992
• Docket Number: No. 92,92
• Parties: The STATE ex rel. KARMASU, Appellant, v. TATE, Warden, Appellee. CA 2030.

Page 199

83 Ohio App.3d 199

614 N.E.2d 827

The STATE ex rel. KARMASU, Appellant, v. TATE, Warden, Appellee.

No. 92 CA 2030.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided Oct. 29, 1992.

Maharathah Karmasu, pro se.

Lee Fisher, Atty. Gen., and Robert W. Myers, Asst. Atty. Gen., Columbus, for appellee.

STEPHENSON, Presiding Judge.

This is an appeal from a judgment entered by the Scioto County Court of Common Pleas dismissing the petition for a writ of mandamus filed by Maharathah Karmasu, a.k.a. James Lee Paxson, petitioner below and appellant herein, against Arthur C. Tate, Jr., Warden of the Southern Ohio Correctional Facility ("SOCF"), respondent below and appellee herein. Appellant posits the following assignments of error for our review:

"I. The court made errors in reviewing only one argument[.]"

"II. The court errored [sic] in not properly construing an inmate pro se petition in the best interest of the filer."

"III. The court abused its discretion and errored [sic] in denying motion without a hearing."

"IV. The court errored [sic] in failing to determine if mandamus or injunctive relief was the proper relief[.]"

A short summary of the facts pertinent to this appeal is as follows. Appellant is an inmate incarcerated at SOCF. On November 8, 1991, he filed a rambling sixty-page petition for a writ of mandamus to be issued against appellee, commanding that certain acts be performed to assist appellant in the practice of his religious faith. On December 20, 1991, appellee filed a Civ.R. 12(B)(6) motion to dismiss the petition on the grounds that it failed to state a claim upon which relief could be granted. On December 27, 1991, the lower court entered judgment granting such relief and dismissed the petition. This appeal followed.

We begin our analysis from the well-settled proposition that, in order to establish the right to a writ of mandamus, a relator must demonstrate (1) a clear legal right to the relief prayed for, (2) that the respondent is under a clear legal duty to perform the requested act, and (3) that the relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Evans v. Indus. Comm. (1992), 64 Ohio St.3d 236, 238, 594 N.E.2d 609, 611, at fn. 2; State ex rel. Fant v. E. Cleveland Mun. Court Clerk (1992), 62 Ohio St.3d 530, 531, 584 N.E.2d 721, 722; State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, at paragraph one of the syllabus. A failure to show any of these requisite factors will cause the petition to be denied.

In the cause sub judice, the petition was not denied on its merits, but rather dismissed for failure to state a claim upon which relief could be granted pursuant to Civ.R. 12(B)(6). ¹ A petition in mandamus will be deemed to state a claim, for purposes of Civ.R. 12(B)(6), so long as it alleges the existence of a legal duty and the want of an adequate remedy at law. State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80, 537 N.E.2d 641, 644; State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221, 224, 12 O.O.3d 229, 230, 390 N.E.2d 782, 785. In determining whether a mandamus petition sets forth a cognizable claim, the trial court must presume all factual allegations of the petition are true and make all reasonable inferences in favor of the nonmoving party. See Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 755. Dismissal is then proper only if it appears beyond doubt that the relator can prove no set of facts in support of his claim which would entitle him to relief. See York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, 1064; O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, at the syllabus. The judgment of dismissal will be reviewed de novo by the court of appeals, which will apply the same test in order to determine if dismissal was proper. See, e.g., Clemets v. Heston (1985), 20 Ohio App.3d 132, 134, 20 OBR 166, 167, 485 N.E.2d 287, 289; Thomas v. Hart Realty, Inc. (1984), 17 Ohio App.3d 83, 84, 17 OBR 145, 477 N.E.2d 668, 669.

With this standard in mind, we turn our attention to the fourth assignment of error wherein appellant argues, among other things, that appellee was under a clear legal duty to perform the requested acts set forth in his petition. These acts included (1) the provision of a special diet to accommodate appellant's religious faith; (2) the provision of fasting and alternate meal arrangements to accommodate his religious faith; (3) the provision of traditionally mandated foods from his religion; (4) the allowance of his wearing "his Hindu Tuft of [h]air"; (5) the more frequent provision of razors to accommodate the shaving of body hair in compliance with his religious faith; (6) the provision of a Hindu rosary; (7) the provision of the sacred texts of his faith; (8) the cessation of administrative orders that he not speak of his religion or show books of his religion to other prisoners; and (9) that his religious name be used for prison administrative purposes.

After a thorough review of appellant's petition, we find merit only with respect to his claim that appellee has a duty to provide him with the sacred text(s) of his religion. The provisions of R.C. 5145.25 unequivocally mandate that "[t]he warden of the penitentiary shall furnish each convict of the penitentiary with a Bible * * *." (Emphasis added.) Although the word "Bible" usually carries certain Judeo-Christian overtones, it may broadly be defined as any book containing the sacred texts of a religion. See American Heritage Dictionary (1985) 175; Webster's Third New International Dictionary (1986) 211. ² Thus, by statute, appellee has a clear legal duty to provide appellant with the sacred text(s) or bible of his religion. ³

It would also appear that appellant has no plain and adequate remedy in the ordinary course of the law by which to enforce this mandate. Appellee counterargues that alternate injunctive relief or monetary damages could be sought or an institutional grievance be filed. However, we are not persuaded that monetary damages or an injunction would force compliance with the statute. ⁴ Moreover, appellant's petition states, among other things, that he "has exhausted all remedies * * *." Presuming this and other averments throughout the petition are true, and making all reasonable inferences in favor of appellant, Mitchell, supra, 40 Ohio St.3d at 192, 532 N.E.2d at 755, we construe the allegations to mean that institutional grievances were filed and rejected. ⁵ Accordingly, this part of the petition set forth a cognizable claim for mandamus and it should not have been dismissed. The matter will be remanded for further proceedings on this limited issue.

However, we are not persuaded that there was any error in dismissing the remainder of the petition. Appellant's claim of a duty to provide access to religious text(s) was supported by a clear and specific statutory mandate. There does not appear to be any comparable basis of support for his remaining claims. Although appellant cites us to a number of general propositions to support his arguments, he appears to ultimately rely on the provisions of the First Amendment to the United States Constitution which state, in pertinent part, that there shall be no law prohibiting the free exercise of religion. ⁶ This guarantee, however, is insufficient to support a writ of mandamus on appellant's claims.

We concede that, while lawful incarceration may deprive a prisoner of certain rights he would otherwise enjoy in a free society, a convict does not loose all his rights upon entering the prison population. In re Lamb (1973), 34 Ohio App.2d 85, 87, 63 O.O.2d 153, 154, 296 N.E.2d 280, 283; see, also, Nolan v. Fitzpatrick (C.A.1, 1971), 451 F.2d 545, 547; Coffin v. Reichard (C.A.6, 1944), 143 F.2d 443, 445. It is beyond question that the rights retained by prisoners encompass the protections of the First Amendment, including those providing for the free exercise of religion. See O'Lone v. Estate of Shabazz (1987), 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282, 289. Our court has a profound respect for this fundamental right and, under most circumstances, will cast a critical eye on any government action interfering therewith.

Nevertheless, the "Free Exercise Clause" of the First Amendment sets forth only a vague prohibition against government action and does not specifically delineate those duties argued by appellant herein. More than two centuries after their adoption, constitutional jurisprudence of the religion clauses continues to evolve and even the justices of the United States Supreme Court cannot fully agree as to their meaning. See, e.g., Lee v. Weisman (1992), 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (Establishment Clause); Emp. Div. v. Smith (1990) 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (Free Exercise Clause). There is no indication that the rights and duties urged by appellant have sufficiently evolved from those provisions so as to support a writ of mandamus to compel their performance.

Moreover, we recognize that the practice of any religion, however orthodox its beliefs and however accepted its practices, will be subject to strict supervision and extensive limitations in a prison. Sostre v. McGinnis (C.A.2, 1964), 334 F.2d 906, 908. No romantic or sentimental view of constitutional rights or of religion should induce a court to interfere with the necessary disciplinary regime established by prison officials. Id. Accordingly, we decline to read into the Constitution those specific rights and duties urged on us by appellant.

The duty to be enforced by a writ of mandamus must be specific, definite, clear and unequivocal. 67 Ohio Jurisprudence 3d (1986) 218, Mandamus, Procedendo and Prohibition, Section 19. The provisions of the First Amendment to the United...