State ex rel. Parker Bey v. [Ohio] Bureau of Sentence Computation

• Decision Date: 14 January 2021
• Docket Number: No. 19AP-534,No. 19AP-46,19AP-46,19AP-534
• Citation: 2021 Ohio 70
• Parties: State ex rel. Vincent El Alan Parker Bey, Relator, v. [Ohio] Bureau of Sentence Computation, Respondent. State ex rel. Vincent El Alan Parker Bey, Relator, v. Ohio Adult Parole Authority, Respondent.
• Court: Ohio Court of Appeals

2021 Ohio 70

State ex rel. Vincent El Alan Parker Bey, Relator, v. [Ohio] Bureau of Sentence Computation, Respondent.

State ex rel. Vincent El Alan Parker Bey, Relator, v. Ohio Adult Parole Authority, Respondent.

No. 19AP-46

No. 19AP-534

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

January 14, 2021

(REGULAR CALENDAR)

DECISION

Vincent El Alan Parker Bey, pro se.

Dave Yost, Attorney General, and Christina E. Mahy, for respondent Bureau of Sentence Computation.

Dave Yost, Attorney General, and Zachary S. O'Driscoll, for respondent Ohio Adult Parole Authority.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BEATTY BLUNT, J.

{¶ 1} Relator, Vincent El Alan Parker Bey, brings these original consolidated actions seeking writs of mandamus to compel respondents, Ohio Bureau of Sentencing Computation ("BOSC") and the Ohio Adult Parole Authority ("OAPA") to provide him with certain public records which he requested pursuant to R.C. 149.43(B).

{¶ 2} This court referred these matters to a magistrate of this court pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate considered the actions and issued a decision that includes findings of fact and conclusions of law, which is appended hereto. The magistrate determined that relator's failure to comply with the provisions of R.C. 2969.25 constitutes grounds for dismissal of the actions and has recommended that this court grant the motion to dismiss filed in case No. 19AP-534 and deny the request for a writ of mandamus in case No. 19AP-46.

{¶ 3} Relator has filed objections to the magistrate's decision. Because relator has filed objections, we must independently review the record and the magistrate's decision to ascertain whether "the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). Having reviewed the record and the magistrate's decision pertaining to same and finding no error on the part of the magistrate in her determinations of the facts, we hereby adopt the magistrate's findings of fact in their entirety. Furthermore, for the reasons that follow, we overrule relator's objections to the magistrate's conclusions of law and adopt the magistrate's decision as our own, with modification as explained below.

{¶ 4} We begin by observing the Supreme Court of Ohio has set forth three requirements which must be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to the relief prayed for; (2) that respondent is under a clear legal duty toperform the act requested; and (3) that relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983). The burden is on relator to establish all three elements by clear and convincing evidence. State ex rel. Mars Urban Solutions, L.L.C v. Cuyahoga Cty. Fiscal Officer, 155 Ohio St.3d 316, 2018-Ohio-4668, ¶ 6.

{¶ 5} Mandamus is the proper vehicle to compel compliance with a public records request made pursuant to R.C. 149.43, Ohio's Public Records Act. State ex rel. Physicians Comm. for Responsible Medicine v. Bd. of Trustees of Ohio State Univ., 108 Ohio St.3d 288, 2006-Ohio-903. R.C. 149.43 must be construed liberally in favor of broad access, and any doubt must be resolved in favor of disclosure of public records. State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374 (1996). Nevertheless, a writ of mandamus will not lie to compel an act that has already been performed. State ex rel. Lee v. Montgomery, 88 Ohio St.3d 233, 237 (2000), citing State ex rel. Crim v. Ohio Adult Parole Auth., 87 Ohio St.3d 38 (1999). Thus, in general, a public records mandamus case becomes moot when the governmental entity or employee provides the records requested by a relator. State ex rel. Martin v. Greene, 156 Ohio St.3d 482, 2019-Ohio-1827, ¶ 7, citing State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, ¶ 43.

{¶ 6} When an inmate files a civil action or appeal against a government entity or employee, the inmate must file an affidavit of prior actions pursuant to R.C. 2969.25(A). R.C. 2969.25(A) provides that "[a]t the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit that contains a description of each civil action or appeal of a civil action that theinmate has filed in the previous five years in any state or federal court. The affidavit shall include all of the following for each of those civil actions or appeals:

(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 nature, the date of the final order affirming the dismissal or award.

R.C. 2969.25 (A)(1) through (4).

{¶ 7} The Supreme Court has consistently held that R.C. 2969.25 requires strict compliance. State ex rel. Ware v. Walsh, ___Ohio St.3rd.___, ¶ 2 (slip opinion), citing State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6; State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 (1998); State ex rel. Alford v. Winters, 80 Ohio St.3d 285 (1997). Nothing in R.C. 2969.25 permits substantial compliance. State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4, citing Martin v. Ghee, 10th Dist. No. 01AP-1380, 2002-Ohio-1621. Instead, " '[t]he requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate's action to dismissal.' " State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-Ohio-854, ¶ 5, quoting State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, ¶ 5; (" 'the failure to comply with R.C. 2969.25 requires dismissal of the action' "), State ex rel.Taylor v. Ohio Adult Parole Auth., 10th Dist. No. 16AP-132, 2016-Ohio-7136, ¶ 4, quoting State ex rel. Evans v. Ohio Adult Parole Auth., 10th Dist. No. 10AP-730, 2011-Ohio-2871, ¶ 4.

{¶ 8} Nor can failure to comply with R.C. 2969.25 be cured at a later date. State ex rel. Young v. Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9 ("a belated attempt to file an affidavit that complies with R.C. 2969.25 does not excuse the noncompliance"); Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9; State ex rel. Armengau v. Ohio Dept. of Rehabilitation & Corr., 10th Dist. No. 15AP-1070, 2017-Ohio-368, ¶ 12. Furthermore, the failure to strictly comply with the requirements of R.C. 2969.25 deprives the court of jurisdiction over the matter. See Armengau at ¶ 13.

{¶ 9} In these cases, a review of the complaints and documents filed by relator shows that in both cases relator has failed to file an affidavit of prior actions that contains all of the information required by R.C. 2969.25(A). With regard to case No. 19AP-46, the affidavit filed is wholly deficient in that it is missing the name of the opposing party in four of the five cases listed; fails to list the outcome of the cases in any of them¹; and fails to provide "[a] brief description of the nature of the civil action or appeal" as required by R.C. 2969.25(A)(1). Therefore, dismissal of relator's action in case No. 19AP-46 is warranted. Although the magistrate has recommended that we find in favor of BOSC in case No. 19AP-46 and deny the writ of mandamus, we modify the magistrate's decision to clarify that the writ should not be denied on the merits; rather, the action should be dismissed without any consideration of the merits of relator's request for a writ of mandamus.

{¶ 10} Similarly, although the affidavit filed with case No. 19AP-534 includes more information than that filed with case No. 19AP-46, it is nonetheless devoid of sufficient information regarding "[a] brief description of the nature of the civil action or appeal." More specifically, while the affidavit filed with case No. 19AP-534 indicates the general type of action filed in most of the cases, e.g., "Original Action in Mandamus"; "Writ of Habeas Corpus", it does not actually describe the nature of the action, such as "Original Action in Mandamus to Compel Compliance with a Public Records Request" which would apply in many of the cases (including case No. 19AP-46 which is before the court now), or "Original Action in Mandamus to Compel Judge Nancy M. Russo to vacate relator's plea of guilty to the offense of murder," as would be applicable in State ex rel. Parker v. Russo, 8th Dist. No. 107686, 2018-Ohio-4903.

{¶ 11} In State ex rel. Kimbro v. Glavas, 97 Ohio St.3d 197, 2002-Ohio-5808, the Supreme Court held that an inmate's affidavit which notated that a case was "an appeal of a civil petition" was an insufficient description of the "nature of the civil action or appeal." R.C. 2969.25(A)(1). Kimbro at ¶ 2. In Kimbro, the Supreme Court affirmed the judgment of the court of appeals dismissing an action seeking writs of mandamus and procedendo for failure to strictly comply with R.C. 2969.25(A). We find that relator's notating in his affidavit in case No. 19AP-534 that a previous action was "an original action in mandamus" or a "writ of habeas corpus," without more, is on par with what the inmate filed in Kimbro. As such, dismissal of relator's action in case No. 19AP-534 is appropriate.

{¶ 12} Having conducted an examination of the magistrate's decision and an independent review of the...