State ex rel. Seikbert v. Wilkinson

• Decision Date: 22 June 1994
• Docket Number: No. 92-1231,92-1231
• Citation: 633 N.E.2d 1128,69 Ohio St.3d 489
• Parties: The STATE ex rel. SEIKBERT, Appellant, v. WILKINSON, Director, et al., Appellees.
• Court: Ohio Supreme Court

Page 489

69 Ohio St.3d 489

633 N.E.2d 1128

The STATE ex rel. SEIKBERT, Appellant, v. WILKINSON, Director, et al., Appellees.

No. 92-1231.

Supreme Court of Ohio.

Submitted April 5, 1994.

Decided June 22, 1994.

Ronald W. Seikbert, relator-appellant, filed a complaint in the Franklin County Court of Appeals on October 16, 1991 seeking a writ of mandamus to compel Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction, and Raymond Capots, Chairman of the Ohio Adult Parole Authority ("APA"), respondents-appellees, to release him from the Chillicothe Correctional Institution.

Seikbert's complaint alleged that he had entered into a plea agreement with the state of Ohio in November 1986 on a charge of attempted rape in the Hamilton County Court of Common Pleas. Seikbert was sentenced to a term of four-to-fifteen years on the attempted rape charge and a concurrent term of two years on a gross sexual imposition charge. According to Seikbert, his attorney had advised him that in return for his guilty plea, he would be released on parole after serving his minimum four-year term, as reduced by any good-time credits he would earn. Seikbert claimed that his release from prison following completion of his minimum term constituted part of the plea agreement. In 1989 and 1991, following parole hearings, the APA continued Seikbert's incarceration and did not release him on parole although his minimum term of incarceration, as reduced by his good-time credits, had expired.

On February 28, 1992, a referee of the court of appeals filed a report recommending that the court grant appellees' Civ.R. 12(B)(6) motion to dismiss Seikbert's complaint because it failed to state a claim upon which relief can be granted. Seikbert filed a notice of appeal from the referee's recommendation to this court instead of filing objections to the report. The court of appeals subsequently adopted the referee's report and dismissed the complaint.

This cause is before the court upon an appeal as of right.

Ronald W. Seikbert, pro se.

PER CURIAM.

Seikbert asserts that the court of appeals erred in dismissing his complaint for a writ of mandamus since the APA ignored his plea agreement by failing to release him on parole after his minimum term of incarceration had expired. In order to be entitled to a writ of mandamus, the relator must establish a clear legal right to the relief prayed for, that respondent has a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. State ex rel. Donaldson v. Alfred (1993), 66 Ohio St.3d 327, 329, 612 N.E.2d 717, 719.

In reviewing a complaint upon a motion to dismiss pursuant to Civ.R. 12(B)(6), a court must presume that all factual allegations are true and all reasonable inferences must be made in favor of the nonmoving party. Perez v. Cleveland (1993), 66 Ohio St.3d 397, 399, 613 N.E.2d 199, 200. Additionally, in order to dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond doubt that relator/plaintiff can prove no set of facts warranting relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. Nevertheless, unsupported conclusions of a complaint are not considered admitted and are not sufficient to withstand a motion to dismiss. See, e.g., State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d 639 (an inmate must plead specific facts to withstand dismissal of a complaint for a writ of mandamus); cf. State ex rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d 323, 325, 603 N.E.2d 1005, 1007 (Civ.R. 12[B] motions attack the sufficiency of the complaint and may not be used to summarily review the merits of a cause of action in mandamus.).

R.C. 2967.03 vests discretion in the APA to "grant a parole to any prisoner, if in its judgment there is reasonable ground to believe that * * * such action would further the interests of justice and be consistent with the welfare and security of society." However, R.C. 2967.03 creates no expectancy of parole or a constitutional liberty interest sufficient to establish a right of procedural due process. Hattie v. Anderson (1994), 68 Ohio St.3d 232, 233, 626 N.E.2d 67, 69; State ex rel. Adkins v....