State ex rel. Ware v. Ohio Dept. of Rehab. & Corr.State ex rel. Ware v. Ohio Dept. of Rehab. & Corr.
Rendered on January 9, 2024
On brief: Kimani E. Ware, pro se.
On brief: Dave Yost, Attorney General, and George Horvath, for respondent.
BEATTY BLUNT, J.
{¶ 1} Relator, Kimani E. Ware, filed this original action on January 10, 2023, seeking a writ of mandamus to compel respondent, Ohio Department of Rehabilitation and Correction (“ODRC“), to respond to his public records request made pursuant to
{¶ 2} The magistrate considered the matter and issued a decision, appended hereto, recommending that we dismiss relator‘s action because relator failed to include State v. Ware, Lucas C.P. No. CR-2003-11-3491, 2018 Ohio Misc. LEXIS 6377 (July 18, 2018) and its appeal on his
{¶ 3} Ware filed timely objections to the magistrate‘s decision on April 18, 2023. Because he has filed objections, we must make an independent review of the record “to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 4}
(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.
{¶ 5} The Supreme Court of Ohio has consistently held that
{¶ 6} A review of Ware‘s affidavit submitted pursuant to
{¶ 7} The second case is State ex rel. Ware v. Byrd, 8th Dist. No. 110865, 2022-Ohio-1175. Ware was sanctioned double court costs in this case, yet he did not include the required information regarding “the date of the final order affirming the dismissal or award.”
{¶ 8} After conducting a review of the magistrate‘s decision and an independent review of the record, we find the magistrate has set forth correct findings of fact, but we reject the conclusions of law. Ware failed to strictly comply with the affidavit requirements of
{¶ 9} Accordingly, we overrule Ware‘s fourth objection and find his first, second, and third objections moot, adopt the magistrate‘s findings of fact, but reject the magistrate‘s conclusions of law. Substituting our own legal analysis set forth above, we find that Ware‘s
Relator‘s fourth objection overruled; relator‘s first, second, and third objection are moot; respondent‘s motion to dismiss granted; action dismissed.
DORRIAN and BOGGS, JJ., concur.
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Kimani Ware, Relator, v. Ohio Department of Rehabilitation and Correction, Respondent.
No. 23AP-18
(REGULAR CALENDAR)
MAGISTRATE‘S DECISION
Rendered on March 16, 2023
Kimani Ware, pro se.
Dave Yost, Attorney General, and George Horvath, for respondent.
IN MANDAMUS ON RESPONDENT‘S MOTION TO DISMISS
{¶ 10} Relator, Kimani Ware, an inmate in the custody of respondent, the Ohio Department of Rehabilitation and Correction (“ODRC“), commenced this original action seeking a writ of mandamus ordering ODRC to provide relator with certain contracts requested by relator pursuant to his public records request under
{¶ 11} 1. At the time of the filing of his complaint, relator was an inmate incarcerated at Richland Correctional Institution.
{¶ 12} 2. ODRC is a public office responsible for, among other things, operating the Ohio prison system.
{¶ 13} 3. According to relator‘s complaint, on October 4, 2021, relator sent a public records request by certified mail to ODRC, requesting a copy of the contract between ODRC and Global Link telephone company, a company that provides telephone services to ODRC inmates. The request also asked for the receipts for commissions paid for services to ODRC from January 1, 2019, through January 1, 2021. ODRC signed the certified mail receipt but did not respond to his public requests request.
{¶ 14} 4. According to relator‘s complaint, on November 15, 2021, relator mailed by regular U.S. Mail a letter to ODRC regarding his October 4, 2021, public records request. ODRC did not respond to the letter.
{¶ 15} 5. According to relator‘s complaint, on December 6, 2021, relator mailed by regular U.S. Mail a second letter to ODRC regarding his October 4, 2021, public records request. ODRC did not respond to the letter.
{¶ 16} 6. On January 10, 2023, relator filed the current petition for writ of mandamus in this court, seeking a writ of mandamus ordering ODRC to provide relator with the contract information requested by relator on October 4, 2021, pursuant to his public records request under
{¶ 17} 7. On February 6, 2023, ODRC filed a motion to dismiss relator‘s complaint based upon his failure to comply with
{¶ 18} 8. On February 21, 2023, relator filed a reply to ODRC‘s motion to dismiss.
Conclusions of Law:
{¶ 19} The magistrate recommends this court grant ODRC‘s motion to dismiss relator‘s petition for writ of mandamus.
{¶ 20}
{¶ 21} A motion to dismiss pursuant to
{¶ 22} The magistrate may take judicial notice of the pleadings and orders in related cases when these are not subject to reasonable dispute, at least insofar as they affect the present original action. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199, 2020-Ohio-2690, ¶ 33, citing
{¶ 23}
At 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 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 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.
{¶ 24}
{¶ 25} In the present case, ODRC contends relator did not comply with
{¶ 26} With regard to the first argument, ODRC asserts that relator failed to comply with
{¶ 27} The magistrate‘s review of the list of prior civil actions and appeals reveals that, although relator‘s condensed format in listing and describing the prior actions makes the list somewhat difficult to read, relator appears to have included all of the information required by
{¶ 28} ODRC‘s second argument, that relator omitted Ware in his affidavit of prior civil actions, raises a thorny legal issue. In Ware, relator in the present case filed a “Motion for Access to Court Records Pursuant to
{¶ 29} So the question now before the magistrate is: Are relator‘s “Motion for Access to Court Records Pursuant to
{¶ 30} ODRC cites DeVore to support its proposition that relator here sought public records as part of his postconviction relief motions in Ware, and these postconviction motions are “civil actions” that must be included in an affidavit of prior civil actions
{¶ 31} Upon appeal to the Supreme Court of Ohio, that court held in DeVore that the court of appeals was correct to dismiss the appellant‘s habeas complaint because it failed to state a valid claim for relief. However, the court did not first address whether the appellant failed to comply with
{¶ 32} Concurring in judgment only, Justice Kennedy wrote that because an application to reopen a direct appeal under
{¶ 34} Justice Kennedy found that the majority ignored the court of appeals’ error and left standing its conclusion that an application to reopen is a civil action against the state subjecting an inmate to the requirements of
{¶ 35} It is clear that the majority in DeVore failed to directly address the application of
{¶ 36} In the present case, based upon DeVore, McGlown, and Jones, the magistrate finds that relator‘s failure to list Ware and the Ware appeal in his
{¶ 37} Accordingly, it is the magistrate‘s decision that, based upon relator‘s failure to comply with the mandatory filing requirements of
/S/ MAGISTRATE
THOMAS W. SCHOLL III