State ex rel. Bailey v. Ohio Parole Bd. , 2016 Ohio 8264 ( 2016 )

[Cite as State ex rel. Bailey v. Ohio Parole Bd., 2016-Ohio-8264.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Michael K. Bailey et al.,
:
Relators, No. 15AP-887
:
v.
: (REGULAR CALENDAR)
Ohio Parole Board,
:
Respondent.
:
D E C I S I O N
Rendered on December 20, 2016
On brief: Michael K. Bailey, Steven M. Schmitz, William E.
Morehouse, Benjamin D. Hudach, and Jeffrey S. Holland,
pro se.
On brief: Michael DeWine, Attorney General, and
Zachary R. Huffman, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, J.
{¶ 1} Relators Michael K. Bailey, Steven M. Schmitz, William E. Morehouse,
Benjamin D. Hudach, and Jeffrey S. Holland, all inmates, have filed an original action
requesting this court to issue a writ of mandamus ordering respondent, Ohio Parole
Board, to conduct new parole hearings as to each of the relators on grounds that all
previous parole hearings have been meaningless.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate of this court. On October 29, 2015,
respondent filed a motion to dismiss relators' action for failure to state a claim upon
No. 15AP-887 2
which relief in mandamus could be granted. On November 17, 2015, relators filed a
response to the motion to dismiss.
{¶ 3} The magistrate issued the appended decision, including findings of fact and
conclusions of law, recommending that this court dismiss the action for failure to state a
claim upon which relief in mandamus can be granted. Relators have filed pro se
objections to the magistrate's decision, arguing that (1) the magistrate's "statement of the
Legal Standards for reviewing a Petition for Writ of Mandamus are incomplete," (2) the
Findings of Fact "do not accurately assess the case," (3) the "Conclusion[s] of Law is
inaccurate," and (4) the decision is "nonresponsive to every legal claim raised."
{¶ 4} Relators, five inmates, filed this petition in mandamus alleging that
respondent had adopted an "unwritten policy not to parole old law offenders anymore."
(Petition at ¶ 22.) In support, relators alleged that several former or current employees of
the Ohio Department of Rehabilitation and Correction ("ODRC") had made public
statements indicating that parole hearings have become meaningless for those inmates
still serving indeterminate sentences (i.e., inmates sentenced prior to the passage of
Am.Sub.S.B. No. 2 in 1996). More specifically, relators alleged that ODRC employees had
made statements, published in newspaper articles in 2012 and 2013, reflecting a
sentiment that "most" inmates suitable for parole had already been released, and that
"hardly any" of the remaining inmates will be deemed suitable for parole due to the
"serious nature of their offense[s]." (Petition at ¶ 10, 16.)
{¶ 5} The magistrate, in addressing the allegations in the petition, concluded that,
even if relators could prove that three employees or former employees of ODRC made the
alleged statements, relators could not show that parole hearings have become
meaningless specifically as to each relator, or that the parole board does not intend to give
meaningful consideration of parole. The magistrate further determined that allegations
as to prior denials of parole do not equate to a failure to give meaningful consideration of
parole.
{¶ 6} In order to be entitled to relief in mandamus, a relator must demonstrate
that: "(1) the relator has a clear legal right to the requested relief; (2) the respondent is
under a clear legal duty to perform the requested act; and (3) the relator has no plain and
adequate remedy in the ordinary course of law." State ex rel. Kingsley v. State Emp.
No. 15AP-887 3
Relations Bd., 10th Dist. No. 09AP-1085, 2011-Ohio-428, ¶ 3. In order to survive a Civ.R.
12(B)(6) motion to dismiss, a "petitioner must state his claim with sufficient particularity
to show that petitioner might prove some set of facts entitling him to relief." State ex rel.
Smith v. Martin, 7th Dist. No. 04 CA 809, 2004-Ohio-6039, ¶ 5.
{¶ 7} In general, the Ohio Adult Parole Authority "has wide-ranging discretion in
parole matters." Festi v. Ohio Adult Parole Auth., 10th Dist. No. 04AP-1372, 2005-Ohio-
3622, ¶ 14. Under Ohio law, "an inmate has no constitutional or statutory right to parole,"
nor does an inmate have a right to "earlier consideration for parole." Id. at ¶ 15. See also
State ex rel. Miller v. Leonard, 88 Ohio St.3d 46, 47 (2000) (an Ohio inmate has no
"constitutional or inherent right to be released before the expiration of a valid sentence").
{¶ 8} As noted, relators' petition alleges that respondent has an unwritten policy
of denying parole to "old law offenders"; relators further allege that respondent places
undue emphasis on the serious nature of an inmate's crime in making its parole
determinations.
{¶ 9} On review, we agree with the magistrate that the petition fails to set forth
facts sufficient to warrant relief in mandamus. While relators infer the existence of an
unwritten policy by respondent of denying parole to serious offenders based on alleged
statements by employees or former employees of ODRC purportedly appearing in
newspaper articles in 2012 and 2013, it cannot be inferred from the facts alleged that
respondent is failing to consider the statutory factors when making parole
determinations. Rather, as found by the magistrate, accepting as true the statements
attributed to employees or former employees of respondent, i.e., that all inmates "likely"
to be paroled have already been released, or that "most" of the inmates suitable for parole
have already been released, relators' allegations are insufficient to establish an unwritten
policy of respondent to automatically deny meaningful consideration for release on parole
(or that the individual inmates were denied parole based on such a policy). While the
statements at issue may support an inference that respondent, in exercising its discretion,
places emphasis on the serious nature of the crime, the allegations do not support a
reasonable inference (or lead to the conclusion) that respondent has implemented a no-
parole policy.
No. 15AP-887 4
{¶ 10} We further note that the petition does not allege that respondent's
consideration of the serious nature of the prisoner's crime is prohibited under the
applicable statutes and regulations. In this respect, Ohio Adm.Code 5120:1-1-07(A)(2)
provides in part that, among other factors, the parole authority may determine that an
inmate should not be released if "[t]here is substantial reason to believe that due to the
serious nature of the crime, the release of the inmate into society would create undue risk
to public safety." See also Swihart v. Chairman/Chairperson of the Ohio Adult Parole
Auth., 10th Dist. No. 13AP-993, 2014-Ohio-3305, ¶ 23 (noting that Ohio Adm.Code
5120:1-1-07(A)(2) "expressly provides that parole authorities may rely upon the serious
nature of the offense to determine whether the inmate would create a risk to public
safety").
{¶ 11} Following an independent review, we find that the magistrate has properly
determined the facts and applied the appropriate law. Accordingly, relators' objections
are overruled, and we adopt the magistrate's decision as our own, including the findings
of fact and conclusions of law contained therein. In accordance with the magistrate's
recommendation, we grant respondent's motion to dismiss, and relators' action in
mandamus is dismissed.
Objections overruled; motion to dismiss granted;
action dismissed.
LUPER SCHUSTER and BRUNNER, JJ., concur.
_____________________
[Cite as State ex rel. Bailey v. Ohio Parole Bd., 2016-Ohio-8264.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Michael K. Bailey, et al. :
Relators, :
v. : No. 15AP-887
Ohio Parole Board, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on February 26, 2016
Michael K. Bailey, Steven M. Schmitz, William E.
Morehouse, Benjamin D. Hudach, and Jeffrey S. Holland,
all pro se.
Michael DeWine, Attorney General, Caitlyn A. Nestleroth
and Zachary R. Huffman, for respondent.
IN MANDAMUS
ON RESPONDENT'S MOTION TO DISMISS
{¶ 12} This original action is brought by five inmates of Ohio's correctional system.
Michael K. Bailey ("Bailey"), Steven M. Schmitz ("Schmitz"), and William E. Morehouse
("Morehouse") are confined at the Marion Correctional Camp. Benjamin D. Hudach
("Hudach") is confined at the Marion Correctional Institution. Jeffrey S. Holland
("Holland") is confined at the Marion Reintegration Center.
{¶ 13} This action is brought against respondent, Ohio Parole Board. Andre
Imbrogno is alleged to be the acting chair of the Ohio Parole Board.
No. 15AP-887 6
{¶ 14} In this original action, relators request a writ of mandamus ordering
respondent to conduct new parole hearings as to each of the relators on grounds that
allegedly all previous parole hearings have been meaningless.
Findings of Fact:
{¶ 15} 1. The complaint runs 49 pages and contains 92 enumerated paragraphs.
{¶ 16} 2. Paragraphs 2 through 8 of the complaint fall under the heading "Parties."
{¶ 17} 3. Paragraphs 9 through 25 of the complaint fall under the heading "Facts."
{¶ 18} 4. Paragraphs 26 through 39 of the complaint fall under the heading
"Parole Board Experience Regarding Bailey."
{¶ 19} 5. Paragraphs 40 through 44 of the complaint fall under the heading
"Parole Board Experience Regarding Schmitz."
{¶ 20} 6. Paragraphs 45 through 50 of the complaint fall under the heading
"Parole Board Experience Regarding Morehouse."
{¶ 21} 7. Paragraphs 51 through 55 of the complaint fall under the heading
"Parole Board Experience Regarding Hudach."
{¶ 22} 8. Paragraphs 56 through 61 of the complaint fall under the heading
"Parole Board Experience Regarding Holland."
{¶ 23} 9. Paragraphs 62 through 70 of the complaint fall under the heading
"Summation of Relators [sic] OPB Experience."
{¶ 24} 10. Paragraphs 71 through 78 of the complaint fall under the heading
"Fiscal Waste Analysis."
{¶ 25} 11. Paragraphs 79 through 91 of the complaint fall under the heading "Legal
Claims."
{¶ 26} 12. Paragraph 92 is captioned "Relief."
{¶ 27} 13. According to paragraph 9 of the complaint, on April 16, 2012 an article
was published in the Lancaster Gazette wherein, JoEllen Smith, an alleged spokesperson
for respondent, is quoted as saying "after 16 years all the inmates likely to be paroled have
been released already, leaving behind 3,200 of the State's worst inmates to cycle through
the process again and again." The relators do not attach a copy the alleged article to their
complaint.
{¶ 28} 14. According to paragraph 10 of the complaint, on April 30, 2013, an
article was published in the Columbus Dispatch wherein then Parole Board Chair Cynthia
Mausser was quoted as saying: "Because we're 16 years from Senate Bill 2 most of the
No. 15AP-887 7
people suitable for parole have already been released." The relators do not attach a copy
of the alleged article to their complaint.
{¶ 29} 15. According to paragraph 11 of the complaint, on May 18, 2012, the
Director of the Ohio Department of Rehabilitation and Correction ("ODRC") "wrote an
open letter addressing the quotes from these two articles."
{¶ 30} 16. According to paragraph 11 of the complaint, the relators allege:
After this open letter from the Director was circulated the
OPB stopped discussing their policy of no longer paroling the
remaining offenders under their control. While the OPB
stopped talking about it to the news media, they continued to
do what they said they were doing in the articles.
{¶ 31} 17. According to paragraph 12 of the complaint, in July 2012, Bailey "wrote
an essay in rebuttal to the aforementioned articles."
{¶ 32} 18. According to paragraph 13 of the complaint, the relators allege:
The two newspaper articles, open letter from the ODRC
Director, and BAILEY's essay clearly show the OPB had a
specific intent by April 2012 to keep as many prisoners under
their control by repeatedly denying parole again and again;
that their publicly announced justification was actually a lie.
(Emphasis sic.)
{¶ 33} 19. According to paragraph 14 of the complaint, in July 2014, ("Public
Broadcast System" or "PBS") "aired a 4-part series on mass incarceration." Allegedly,
then Parole Board Chair Cynthia Mausser was a guest of the series on July 10, 2014 and
then parole board member Kathleen Kovach was a guest on July 24, 2014. According to
the complaint, "[b]oth made comments during that show which indicated they still
possessed the mind-set disclosed to the public in April 2012."
{¶ 34} 20. According to paragraph 15 of the complaint, Bailey wrote an essay on
mass incarceration and he allegedly circulated it to "all Ohio Legislators, State Office
holders and various news media outlets."
{¶ 35} 21. According to paragraph 16 of the complaint, "the Governor's Office"
received a copy of Bailey's essay and forwarded it to PBS for a response. Allegedly,
Imbrogno wrote a response and forwarded it to Bailey on October 30, 2014. Allegedly, in
his response, Imbrogno made statements that "reflect the same mind-set held by"
Mausser, Kovach, and Smith.
No. 15AP-887 8
{¶ 36} 22. According to paragraph 24 of the complaint, ODRC Staff Attorney Ryan
G. Dolan wrote a letter in preparation for an April 6, 2015 hearing before "JCARR."
Allegedly, Dolan wrote: "parole decisions hinge largely, although not entirely, on the
'nature of the crime.' That is why most old law inmates have little chance of being
paroled."
{¶ 37} 23. According to paragraph 39 of the complaint:
Despite all these rehabilitative accomplishments, in addition
to exemplary institutional conduct, the OPB considered
BAILEY unsuitable for parole at his seventh hearing because
of the premeditated nature of the murder he committed 40
years ago; yet in the past, offenders with similar (if not
worse) crimes have been paroled without serving nearly as
much time, earning nearly as much rehabilitative
achievement, or conducting themselves nearly as well. Taken
alone, this means relatively little; but when combined with
those two articles from April 2012 previously cited herein,
IMBROGNO's letter of 10-30-14, Ryan G. Dolan's letter of
April 2015 to the executive director of JCARR, along with
comments made by KOVACH and Cynthia Mausser on the
PBS Show in July 2014; it clearly demonstrates the OPB has
an unwritten (unchallengeable?) policy in place to deny
meaningful review to BAILEY specifically, and all others
similarly situated.
(Emphasis sic.)
{¶ 38} 24. According to paragraph 44 of the complaint:
When SCHMITZ went before the OPB for the fifth time and
received his fifth consecutive 3 year continuance he was a
non-violent first time offender who had been living in a
minimum security Reintegration Center for months, with all
the program completions expected of him (and more), who
had tremendous community support and exceptional
institutional conduct. Nothing he had accomplished during
his previous 19 years of incarceration could change the "fact"
that the decision was made prior to April 2012 to keep him
incarcerated. That "fact" is undeniable, as revealed by the
OPB in their news media releases in April 2012 and
subsequent communications in 2014 on the show "All Sides
w/Ann Fisher," the letter from IMBROGNO dated 10-30-14,
and the letter from ODRC Staff Attorney, Ryan Dolan, to the
Executive Director of JCARR.
(Emphasis sic.)
No. 15AP-887 9
{¶ 39} 25. According to paragraph 50 of the complaint:
The review process [Morehouse] receives now at parole
hearings is meaningless, as the decision not to release him
was made prior to April 2012 (as proclaimed to the world in
news releases herein aforesaid) and then reiterated by
IMBROGNO in his letter of 10-30-14 and Staff Counsel Ryan
Dolan's letter to JCARR's executive director in April 2015.
The OPB has embarked on this policy despite the fact it costs
Ohio taxpayers more than $119 million each year to
incarcerate rehabilitated offenders like MOREHOUSE who
has served well beyond the amount of time similar offenders
have for similar offenses. This is a waste of taxpayer revenue
and an injustice to every rehabilitated offender still under
their control.
(Emphasis sic.)
{¶ 40} 26. According to paragraph 55 of the complaint:
None of HUDACH's accomplishments over the past 20 years
could change the decision to continue his incarceration that
was announced to the public three years before he actually
had a hearing. Nothing he could ever accomplish in the next
five years will have an impact on future decisions either. The
OPB's public policy is to not release him, or the
overwhelming majority of other prisoners that the OPB still
has control over. The OPB is not concerned with the cost of
that policy to taxpayers or how many other laws they violate
to implement it. They have complete discretion in the release
making decision and they believe this gives them immunity
to violate whatever other law exists that may impact that
discretion. This is not "fair" to any citizen who pays taxes and
is expected to abide by the laws they don't necessarily agree
with.
{¶ 41} 27. According to paragraph 61 of the complaint: "[Holland's] fourth parole
hearing is currently scheduled for March 2018; however, history does not show he will
receive any more meaningful reviews. More than likely he will not be paroled again.
{¶ 42} 28. At paragraph 92 of the complaint, relators set forth the relief requested:
WHEREFORE, Relators pray for a peremptory Writ of
Mandamus compelling Respondent to comply with all Ohio
laws now being violated and conduct new parole hearings on
every offender currently incarcerated who has had a
meaningless parole hearing, which is identified as any parole
hearing held after January 1, 2010, consistent with these
laws. FURTHER, Relators pray this Court find all members
No. 15AP-887 10
of the OPB in violation of ORC §124.34(A) and direct ODRC
Director, Gary Mohr to take appropriate administrative
action against each of them; find the OPB guilty of public
corruption and ORDER whatever is appropriate under the
circumstances; FINALLY, issue any further relief deemed
appropriate.
(Emphasis sic.)
{¶ 43} 29. On October 29, 2015, respondent moved to dismiss this action.
{¶ 44} 30. On November 17, 2015, relators filed their response to respondent's
motion to dismiss.
Conclusions of Law:
{¶ 45} It is the magistrate's decision that this court grant respondent's motion to
dismiss.
{¶ 46} A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of a complaint.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 95
(1995), citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545(1992).
{¶ 47} In reviewing the complaint, the court must take all of the material
allegations as admitted and construe all reasonable inferences in favor of the non-moving
party. Id.{¶ 48} " ' A complaint in mandamus states a claim if it alleges the existence of the
legal duty and the want of an adequate remedy at law with sufficient particularity so that
the respondent is given reasonable notice of the claim asserted.' " Hanson at 548, quoting
State ex rel. Alford v. Willoughby, 58 Ohio St.2d 221, 223-24 (1979).
{¶ 49} "In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v.
Univ. Community Tenants Union, 42 Ohio St.2d 242 (1975), syllabus.
{¶ 50} In their response to respondent's motion to dismiss, relators rely upon State
ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270. (See
Relator's Response, 9-10, 23-24.) Thus, a careful review of the Keith case is in order.
{¶ 51} As an inmate of Ohio's correctional system, Bernard R. Keith was scheduled
for a parole release hearing in February 2012. At a February 17, 2012 hearing, the parole
No. 15AP-887 11
board denied parole and set the next parole hearing for 62 months later. In explaining its
rationale, the board cited several factors and stated that Keith had been paroled 8 times.
{¶ 52} Keith then sent a letter to Parole Board Chair Cynthia Mausser. Keith
requested that the decision be corrected to reflect the correct number of times he had
been paroled and that the parole board grant him a new hearing. The parole board denied
Keith's request.
{¶ 53} In May 2012, Keith filed in this court a mandamus action requesting that
the Ohio Adult Parole Authority ("OAPA") be compelled to correct the record and to
provide Keith with a rehearing.
{¶ 54} OAPA filed a motion to dismiss. Keith responded with a memorandum and
a motion for summary judgment, to which two affidavits and several exhibits were
appended. Keith then moved to supplement the pleadings with another affidavit and
more exhibits, raising additional claims of further error in his records.
{¶ 55} The OAPA responded with an affidavit by Mausser, in which she asserted
that Keith's record had been corrected to reflect the correct number of times he had been
paroled. Mausser further asserted that, after the correction was made, she had submitted
the matter to the parole board to consider the correction. The board voted not to modify
its previous decision and not to grant Keith a new hearing.
{¶ 56} A magistrate of this court granted Keith's motion to supplement the
pleadings. The magistrate also converted OAPA's motion to dismiss into one for
summary judgment and gave notice that both motions for summary judgment were set for
a non-oral hearing on August 2, 2012.
{¶ 57} The magistrate recommended that this court grant OAPA's motion for
summary judgment and deny Keith's motion for summary judgment. The magistrate
found that Keith had no constitutional, statutory or inherent right to parole, and no due
process right to the correction of errors that appear in records used by the OAPA in parole
determinations. The magistrate further found that, even if Keith had a right to the
correction of an error, his request was moot, as the OAPA records had been corrected to
reflect that Keith had been paroled six times.
{¶ 58} This court overruled Keith's objections based on its findings that Mausser's
affidavit established that the parole information had been corrected, that the parole board
had seen the corrected information, and that the board had voted not to modify its
previous decision or grant Keith a rehearing.
No. 15AP-887 12
{¶ 59} In Keith, this court concluded that the case was moot.
{¶ 60} Keith appealed as of right to the Supreme Court of Ohio.
{¶ 61} In his first proposition of law, Keith asserted that this court had failed to
consider all his claims as presented. The Supreme Court agreed. Because Keith was
allowed to supplement the complaint, the Supreme Court concluded that Keith's
assertions of additional errors in his parole records should have been considered by this
court.
{¶ 62} Citing Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-
6719, the Supreme Court, in Keith, asserted that Layne establishes a minimal standard for
the OAPA, that is, the statutory language "ought to mean something." Keith at ¶ 21
quoting Layne at ¶ 27. At issue in Layne, were the words "eligible for parole" in former
R.C. 2967.13(A). Id. As the Keith court observed, in Layne, the court held that "inherent
in the language is 'the expectation that a criminal offender will receive meaningful
consideration.' " Id.{¶ 63} Citing Ohio Adm.Code 5120:1-1-07(B), the Supreme Court, in Keith, set
forth the factors the parole board is to consider. The Keith court then states:
Inherent in the language of Ohio Adm.Code 5120:1-1-07(B)
is that the board must consider various reports and "other
relevant written information" pertaining to the inmate whose
parole is being considered. The existence of this formal
process for considering parole rightly gives parolees some
expectation that they are to be judged on their own
substantively correct reports. Requiring the board to
consider specific factors to determine the parolee's fitness for
release would not mean anything if the board is permitted to
rely on incorrect, and therefore irrelevant, information about
a particular candidate.
Our decision today does not overrule the holding in [State ex
rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81 Ohio
St.3d 267 (1998)], and similar cases. Keith and other
prisoners still have "no constitutional or statutory right to
parole." Id. at 268. See also State ex rel. Seikbert v.
Wilkinson, 69 Ohio St.3d 489, 490, 1994 Ohio 39, 633
N.E.2d 1128 (1994). A state may set up a parole system, but it
has no duty to do so. Greenholtz v. Inmates of Nebraska
Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60
L.Ed.2d 668 (1979). Having established a parole system, the
state may design that system to be entirely discretionary, and
the state "may be specific or general in defining the
conditions for release and the factors that should be
No. 15AP-887 13
considered by the parole authority." Id. at 8. Moreover, there
need be no "prescribed or defined combination of facts
which, if shown, would mandate release on parole." Id. As
mentioned above, Ohio's system is entirely discretionary and
creates no expectation of parole and no due-process right to
parole itself.
However, having set up the system and defined at least some
of the factors to be considered in the parole decision, the
state has created a minimal due-process expectation that the
factors considered at a parole hearing are to be as described
in the statute or rule and are to actually and accurately
pertain to the prisoner whose parole is being considered.
***
But where there are credible allegations, supported by
evidence, that the materials relied on at a parole hearing
were substantively inaccurate, the OAPA has an obligation to
investigate and correct any significant errors in the record of
the prisoner.
***
Thus, Keith has made a showing that there may be
substantive errors in his record that may influence the
OAPA's consideration of his parole. There is no evidence on
the record that any error beyond the number of times Keith
was paroled has been corrected. OAPA must therefore
conduct an investigation into Keith's allegations and correct
any substantive errors discovered in the record it uses to
consider him for parole.
Id. at ¶ 23-25, 28, and 30.
{¶ 64} Given its analysis, the Supreme Court, in Keith, reversed the judgment of
this court and granted a writ of mandamus ordering the OAPA to investigate Keith's
allegations and correct any substantive errors in the record used to consider him for
parole.
{¶ 65} Unlike Keith, the instant case does not involve the allegation that the parole
board used records containing incorrect information in determining whether to grant or
deny parole.
{¶ 66} Unlike Layne, the instant case does not involve the parole board's improper
use of a "parole guidelines chart" on which the board had placed the inmate in an offense
category that did not correspond to his offense of conviction. Layne at ¶ 2. Rather, the
No. 15AP-887 14
instant case involves allegations that JoEllen Smith, Cynthia Mausser, and Kathleen
Kovach made public statements on behalf of respondent that allegedly indicate that parole
hearings have become meaningless for those who are still serving indeterminate
sentences.
{¶ 67} Even if relator's could prove that the three employees or former employees
of ODRC made the statements as alleged in the complaint, that would not prove that
parole hearings have become meaningless specifically as to each relator or that the parole
board does not intend to give meaningful consideration of parole. Moreover, prior denials
of parole do not equate to a failure to give meaningful consideration of parole.
{¶ 68} Thus, based upon the above analysis, it is clear beyond doubt that relators
can prove no set of facts entitling them to relief in mandamus. O'Brien.
{¶ 69} Accordingly, it is the magistrate's decision that this court dismiss this action
for the failure to state a claim upon which relief in mandamus can be granted.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).