Stаte ex rel. Vincent El Alan Parker Bey v. [Ohio] Bureau of Sentence Computation; State ex rel. Vincent El Alan Parker Bey v. Ohio Adult Parole Authority
No. 19AP-46; No. 19AP-534
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 14, 2021
[Cite as State ex rel. Parker Bey v. Ohio Bur. of Sentence Computation, 2021-Ohio-70.]
BEATTY BLUNT, J.; BROWN and LUPER SCHUSTER, JJ., concur.
REGULAR CALENDAR; IN MANDAMUS; ON OBJECTIONS TO THE MAGISTRATE‘S DECISION
Rendered on January 14, 2021
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
{¶ 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
{¶ 2} This court referred these matters to a magistrate of this court pursuant to
{¶ 3} Relator has filed objections to the magistrate‘s decision. Becausе 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.”
{¶ 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 to
{¶ 5} Mandamus is the proper vehicle to compel compliance with a public records request made pursuant to
{¶ 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
(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 аn 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.
{¶ 7} The Supreme Court has consistently held that
{¶ 8} Nor can failure to comply with
{¶ 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
{¶ 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.”
{¶ 12} Having conducted an examination of the magistrate‘s decision and an independent review of the record pursuant to
Objections overruled; motion to dismiss granted; complaints for writs of mandamus dismissed.
BROWN and LUPER SCHUSTER, JJ., concur.
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
State ex rel. Vincent El Alan Parker Bey, Relator,
v. [Ohio] Bureau of Sentence Computation, Respondent. No. 19AP-46 (REGULAR CALENDAR)
State ex rel. Vincent El Alan Parker Bey, Relator,
v. Ohio Adult Parole Authority, Respondent. No. 19AP-534 (REGULAR CALENDAR)
MAGISTRATE‘S DECISION
Rendered on February 6, 2020
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.
{¶ 13} Relator has filed these mandamus actions seeking to compel respondents, Ohio Bureau of Sentence Computation (“BOSC“) and the Ohio Adult Parole Authority (“OAPA“) to рrovide him with public records he requested pursuant to
Findings of Fact:
{¶ 14} 1. Relator is an inmate currently incarcerated at Trumbull Correctional Institution.
19AP-46
{¶ 15} 2. On January 23, 2019, relator filed a mandamus action against BOSC in case No. 19AP-46. Relator asserted that “[o]n or about October 12, 2018 relator made a public record request, the respondent received the request on November 8, 2018 by certified mail. * * * The respondent did not respond to the public record request at all.”
{¶ 16} 3. At the time he filed case No. 19AP-46, relator filed an affidavit of prior actions pursuant to
{¶ 17} (1) Court of Claims of Ohio against ODRC for a bailment issue concerning legal property. Case Numbеr 2013-00154 Vincent A. Parker v. ODRC. Relator appealed the decision to the Tenth District Court of Appeals, Case number 16-AP-615. (2) Supreme Court of Ohio, on January 29, 2018, Original Action in Mandamus, case number 2018-0147. (3) Eighth District Court of Appeals on September 17, 2018 Original Action in Mandamus, case number CA-18-107686. (4) Eleventh District Court of Appeals on October 2, 2018, Writ of Habeas Corpus, case number 2018-TR-090. (5) Eighth District Court of Appeals, Original Action in Mandamus, case number CA-18-107909.
[Three] On Friday, February 22, 2019, my supervisor, Mary Oakley, requested that I mail a response first thing Monday morning to a public records request to Inmate Vincent Parker (#310623) at Trumbull Correctional * * *.
[Four] On Monday, February 25, 2019, I mailed the requested records to Mr. Parker via United States Postal Service certified mail. (See Attachment A).
[Five] The records sent to Mr. Parker were:
[A] A Journal Entry from Cuyahoga County Common Pleas Court in State of Ohio v. Vincent Parker, CR 320034, filed on April 30, 2003. (1 page). (See Attachment B).
[B] A Journal Entry from Cuyahoga County Common Pleas Court in State of Ohio v. Vincent Parker, CR 320034, filed on February 3, 2003. (1 page). (See Attachment C).
[C] A Complaint from the Tenth District Court of Appeals in State of Ohio, Vincent El Alan Parker Bey ex rel. v. Bureau of Sentence Computation, 19-AP-46, filed January 23, 2019. (5 pages). (See Attachment D).
[Six] Mr. Parker signed for receipt of the certified mail on February 28, 2019. (See Attachment E).
Wallace also attached copies of those documents.
{¶ 19} 5. Relator filed his merit brief on May 14, 2019. In that brief, relator acknowledged he had indeed received copies of the documents identified by Wallace in her affidavit; however, relator argued that BOSC did not “promptly” prepare those documents for him as required by
{¶ 20} 6. On July 9, 2019, relator filed a motion for summary judgment.
{¶ 21} 7. On July 12, 2019, the magistrate issued an order denying relator‘s July 9, 2019 motion for summary judgment because relator had failed to provide sufficient evidence to demonstrate that he was entitled to judgment in his favor. The magistrate also ordered the briefing order remain in effect and that relator should file any and all evidence upon which he intended to rely by July 25, 2019.
{¶ 22} 8. On July 30, 2019, BOSC filed its merit brief. BOSC relied on Wallace‘s affidavit indicating when she received instructions to prepare the documents relator requested as evidence that BOSC had promptly responded to relator‘s public records requеst. BOSC also stated that, “On April 11, 2019, Respondent made a settlement offer to Relator in writing. As of the date of filing, Relator has not responded to this offer. This offer was extended to Relator again on July 18, 2019, and again Respondent has received no reply.” (BOSC‘s Brief at 4.) BOSC also asserted that relator had failed to comply with the mandatory filing requirements of
{¶ 23} 9. On August 1, 2019, relator filed an objection to the magistrate‘s order denying his request for summary judgment.
19AP-534
{¶ 25} 11. On August 15, 2019, relator filed a mandamus action against OAPA in case No. 19AP-534. In that case, relator asserted that “[o]n or about February 11, 2019 relator made a public record request to the respondent by certified mail, which the respondent received on February 14, 2019.”
{¶ 26} 12. At the time he filed case No. 19AP-534, relator filed a modified affidavit of prior actions indicating:
[One] In accordance with and pursuant to O.R.C. 2969.25(A), affiant states that within the previous five year period, he has filed seven prior civil actions, which are: (1) Vincent A. Parker v. ODRC case number 16-AP-615, relator appealed a decision in that originated in the court of claims, case number 2013-00154. (2) Supreme Court of Ohio, on January 29, 2018 Original Action in Mandamus Parker v. Russo 2018-0147, court granted respondent[‘]s motion to dismiss, writ denied. (3) State ex rel. Parker v. Russo Original Action in Mandamus, casе number CA-18-107686, writ denied, appeal pending. (4) State ex rel. Parker Bey v. Bracy Eleventh District Court of Appeals, Writ of Habeas Corpus, case number 2018-TR-090, writ denied, appeal pending. (5) State ex rel Parker Bey v. Byrd, Original Action in Mandamus case number CA-18-107909, writ denied, appeal pending. (6) State ex rel. Parker Bey v. Julie Loomis & Trumbull Correctional Institution et al., Eleventh District Court of Appeals, Original Action in Mandamus, case number 2109-TR-35 [sic], pending. (7) State ex rel. Parker Bey v. Bureau Sentence Computation, Original Action in Mandamus, Tenth District Court of Appeals, case number 19-AP-46, pending.
{¶ 27} 13. On September 16, 2019, OAPA filed a motion to dismiss asserting that relator had failed to comрly with the mandatory requirements of
{¶ 28} 14. On October 2, 2019, relator filed a reply to the motion to dismiss asserting that OAPA was using the argument that he had failed to strictly comply with
After a simple review of the relator‘s complaint and affidavit of prior civil actions, this court can determine that relator has complied with the statute, by listing the parties named in each civil action, listing the nature of the action and whether it was dismissed and pending appeal and whether it was dismissed as frivolous or malicious. The statute requires no more, and relator has complied with the statute.
{¶ 29} 15. On October 9, 2019, OAPA filed a reply in support of its motion to dismiss relator‘s complaint. OAPA cited State ex rel Kimbro v. Glavas, 97 Ohio St.3d 197, 2002-Ohio-5808, in support of its argument that the requirements of
19AP-46 and 19AP-534
{¶ 30} 16. In a journal entry dated Novеmber 20, 2019, this court sua sponte consolidated relator‘s mandamus actions in case Nos. 19AP-46 and 19AP-534.
{¶ 31} 17. Relator has asked this court to reconsider its decision to consolidate his cases.
{¶ 32} 18. The matter is currently on the magistrate‘s docket.
Conclusions of Law:
{¶ 33} 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 to perform the act
{¶ 34} Whether or not these cases should have been consolidated is ultimately immaterial. These cases do involve similar issues and can be addressed together or separately. In both cases, relator made a public records request. In case No. 19AP-46, BOSC has provided relator with the documents he sought and, as such, that portion of his action is clearly moot. Relator does, however, argue that BOSC did not reply promptly and requests this court order BOSC to pay his court costs and award him statutory damages. At the same time, in both 19AP-46 and 19AP-534, respondents have argued that relator failed to strictly comply with the requirements of
19AP-46
{¶ 35} In this case, relator sought public records from BOSC in October 2018 and BOSC received that request on November 8, 2018. According to the affidavit of Vicki Wallace, her supervisor gave her the request on February 22, 2019 and, three days later, she provided relator with copies of the documents he sought. Relator acknowledged that he received those documents but asserts he is entitled to an award of statutory damages and the payment of court costs because BOSC did not promptly comply with the requirements of
{¶ 36} The purpose of the Ohio Public Records Act “is to expose government activity to public scrutiny, which is absolutеly essential to the proper working of a democracy.” State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261, 264 (1997), citing State ex rel. WHIO—TV—7 v. Lowe, 77 Ohio St.3d 350, 355 (1997). Scrutiny of public records allows citizens to evaluate the rationale behind government decisions so
{¶ 37} The appropriate remedy to compel compliance with
{¶ 38}
(A)(1) “Public record” means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units * * *.
* * *
(B)(1) Upon request and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt. When making that public record available for public inspection or copying that public record, the public office or the person responsible for the public record shall notify the requester of any redaction or make the redaction plainly visible. A redaction shall be deemed a denial of а request to inspect or copy the redacted information, except if federal or state law authorizes or requires a public office to make the redaction.
(2) * * * If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office‘s or person‘s duties.
(3) If a request is ultimately denied, in part or in whole, the public office or the person responsible for the requested public record shall provide the requester with an explanation, including legal authority, setting forth why the request was denied. If the initial request was provided in writing, the explanation also shall be provided to the requester in writing.
(C)(1) If a person allegedly is aggrieved by the fаilure of a public office or the person responsible for public records to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section or by any other failure of a public office or the person responsible for public records to comply with an obligation in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, that awards court costs and reasonable attorney‘s fees to the person that instituted the mandamus action, and, if applicable, that includes an order fixing statutory damages under division (C)(1) of this section.
If a requestor transmits a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records, except as otherwise provided in this section, the requestor shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.
The amount of statutory damages shall be fixed at one hundred dollars for each business day during which the public office or person responsible for the requested public records failed to comply with an obligation in accordance with division (B) of this section, beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars. The award of statutory damages shall not be construed as a penalty, but as compensation for injury arising from lost use of the requested information.
{¶ 39} As above indicated, public offices are required to promptly prepare records and transmit them within a reasonable period of time after receiving the request for the copy. The term “promptly” is not defined in the statute. However, statutes in other states give their agencies from between 3 and 12 days from the date the public records were requested to make the documents available. The word “prompt” is defined as “performed readily or immediately.” Webster‘s Eleventh New Collegiate Dictionary 994 (2005).
{¶ 40} Even though the term “promptly” is not defined in the statute, this court could arguably find that the 80 days from when BOSC signed for the public records request and the date BOSC provided those documents to relator does not meet the requirement to respond promptly. However, as the magistrate also finds, relator failed to strictly comply with the requirements of
At the time that an inmate commences a civil action or appeal against а 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 the inmate 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 whethеr 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.
{¶ 41} Thus,
{¶ 42} Relator appears to accept BOSC‘s assertion that he failed to strictly comply with the requirements of
{¶ 43} As indicated in the findings of fаct, relator attempted to comply with
(1) Court of Claims of Ohio against ODRC for a bailment issue concerning legal property. Case Number 2013-00154 Vincent A. Parker v. ODRC. Relator appealed the decision to the Tenth District Court of Appeals, Case number 16-AP-615. (2) Supreme Court of Ohio, on January 29, 2018, Original Action in Mandamus, case number 2018-0147. (3) Eighth District Court of Appeals on September 17, 2018 Original Action in Mandamus, case number CA-18-107686. (4) Eleventh District Court of Appeals on October 2, 2018, Writ of Habeas Corpus, case number 2018-TR-090. (5) Eighth District Court of Appeals, Original Action in Mandamus, case number CA-18-107909.
{¶ 44} As BOSC asserted, relator failed to list the name of the opposing party in four of the fivе cases he listed, and failed to list the outcome of the civil action or appeal for any of the cases that he listed.
{¶ 45} As this court stated in State ex rel. Armengau v. Ohio Dept. of Rehabilitation & Corr., 10th Dist. No. 15AP-1070, 2017-Ohio-368, relator‘s failure to strictly comply with the requirements of
19AP-534
{¶ 46} As the magistrate noted in findings of fact 3 and 12, relator did provide additional information concerning the civil actions or appeals of civil actions that he filed in the five years preceding the date he filed the mandamus action in case No. 19AP-534. Despite the fact that he included additional information, OAPA still maintains that relator failed to strictly comply with those requirements, his failure divests this court of jurisdiction and warrants dismissal.
[One] In accordance with and pursuant to O.R.C. 2969.25(A), affiant states that within the previous five year period, he has filed seven prior civil actions, which are: (1) Vincent A. Parkеr v. ODRC case number 16-AP-615, relator appealed a decision in that originated in the court of claims, case number 2013-00154. (2) Supreme Court of Ohio, on January 29, 2018 Original Action in Mandamus Parker v. Russo 2018-0147, court granted respondent[‘]s motion to dismiss, writ denied. (3) State ex rel. Parker v. Russo Original Action in Mandamus, case number CA-18-107686, writ denied, appeal pending. (4) State ex rel. Parker Bey v. Bracy Eleventh District Court of Appeals, Writ of Habeas Corpus, case number 2018-TR-090, writ denied, appeal pending. (5) State ex rel Parker Bey v. Byrd, Original Action in Mandamus case number CA-18-107909, writ denied, appeal pending. (6) State ex rel. Parker Bey v. Julie Loomis & Trumbull Correctional Institution et al., Eleventh District Court of Appeals, Original Action in Mandamus, case number 2109-TR-35 [sic], pending. (7) State ex rel. Parker Bey v. Bureau Sentence Computation, Original Action in Mandamus, Tenth District Court of Appeals, case number 19-AP-46, pending.
{¶ 48} OAPA correctly argues that this too fails to comply with the mandatory requirements of
{¶ 49} In Kimbro, the Supreme Court found that an inmate‘s failure to provide information concerning the nature behind the prior civil action fails to meet the requirements of
{¶ 50} Finding that, in both these cases, relator failed to strictly comply with the mandatory filing requirements of
/S/ MAGISTRATE
STEPHANIE BISCA