Howard v. Mgt. & Training Corp. , 2022 Ohio 4071 ( 2022 )

[Cite as Howard v. Mgt. & Training Corp., 2022-Ohio-4071.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jeffery L. Howard, :
Plaintiff-Appellant, : No. 21AP-283
v. (C.P.C. No. 20CV-2847)
:
Management & Training Corp. et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on November 15, 2022
On brief: Jeffery L. Howard, pro se.
On brief: Mansour Gavin, LPA, Edward O. Patton, and
Michael P. Quinlan, for appellees.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Jeffery L. Howard appeals from the judgment of the Franklin County Court
of Common Pleas dismissing the civil action he filed against Management & Training Corp.
("MTC") and its employees. The trial court ruled that the affidavit Mr. Howard had filed
disclosing his litigation history did not conform to the requirements of R.C. 2969.25(A),
which applies when an inmate commences litigation against "a government entity or
employee." MTC is a private, for-profit corporation, not a government entity. The trial
court erred by applying the statute, so we reverse and remand.
{¶ 2} On April 21, 2020, Mr. Howard filed a complaint against MTC and ten of its
employees who worked at the Northern Central Correctional Institution ("NCCI"), the
facility owned and operated by MTC where he was incarcerated. Mr. Howard alleged that
MTC's employees had conspired and retaliated against him by writing false negative
No. 21AP-283 2
conduct reports after he filed complaints. He also alleged that employees had committed
fraud, falsified government documents, and violated his equal protection rights.
Mr. Howard sought a declaratory judgment, injunctive relief, and monetary damages. He
also attached an affidavit disclosing six previous lawsuits he had filed in the last five years,
as R.C. 2969.25(A) requires of an inmate commencing "a civil action or appeal against a
government entity or employee * * * in any state or federal court."
{¶ 3} On June 11, 2020, MTC filed a motion to dismiss for failure to state a claim
or, in the alternative, to transfer venue. MTC pointed out that Mr. Howard had voluntarily
dismissed an identical action filed in the Court of Common Pleas of Marion County.
Additionally, MTC argued that Mr. Howard's "bare bones" and "inadequate" affidavit did
not satisfy R.C. 2969.25(A)'s requirement to provide a "brief description of the nature of
his civil actions." (June 11, 2020 Mot. to Dismiss at 4.) Alternatively, MTC sought a motion
to transfer the case to the Court of Common Pleas of Marion County, Ohio.
{¶ 4} In Mr. Howard's response, he accused the Marion County court of being
"incapable of being fair and impartial towards" him and defended refiling the lawsuit in
Franklin County because its "fairer and impartial" court did not lack jurisdiction over his
claims. (July 2, 2020 Req. to Reply at 2-3.) He also argued that MTC was not a
"government entity" or "employee" under R.C. 2969.25(A) and that his affidavit complied
with the descriptive requirements of the statute.
{¶ 5} The trial court granted the motion to dismiss on May 3, 2021, ruling that
Mr. Howard's affidavit did not comply with R.C. 2969.25(A). The trial court found that
Mr. Howard's affidavit had "failed to list the names of each party to the civil action in any
of the six civil actions he initiated within the last five years." (May 3, 2021 Journal Entry at
2.) The trial court also found that "overly general descriptors such as 'Declaratory
Judgment and Injunctive Relief,' " failed to satisfy the R.C. 2969.25(A)(1) requirement to
provide "[a] brief description of the nature of the civil action or appeal."
{¶ 6} Mr. Howard filed a notice of appeal on June 4, 2021, and asserts the following
assignments of error:
[1.] THE TRIAL COURT COMMITTED ERROR DISMISSING
PLAINTIFF'S-APPELLANT'S CASE BASED ON THE OHIO
REVISED CODE (O.R.C.) 2969.25(A)
No. 21AP-283 3
[2.] THE TRIAL COURT COMMITTED PLAIN ERROR BY
DEFINING A PRIVATE FOR PROFIT CORPORATION AS A
"GOVERNMENT ENTITY" OR "EMPLOYEE" UNDER O.R.C.
2969.25(A)
{¶ 7} According to MTC, Mr. Howard's appeal should be dismissed because he
untimely filed the notice of appeal. MTC argues that under App.R. 4, Mr. Howard had thirty
days from May 3, 2021, the date the clerk entered the dismissal entry on the docket, to file
the notice of appeal. Because he did not file the notice of appeal until June 4, 2021, thirty-
two days later, MTC argues that the notice was untimely and we must dismiss Mr. Howard's
appeal. As this argument challenges our jurisdiction, "we must, as a preliminary matter,
address our subject-matter jurisdiction in this appeal." Oakley v. Ohio State Univ. Wexner
Med. Ctr., 10th Dist. No. 18AP-843, 2019-Ohio-3557, ¶ 9.
{¶ 8} "Jurisdiction in the court of appeals is based upon a timely filing of a notice
of appeal." Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141 Ohio
St.3d 542, 2015-Ohio-241, ¶ 7. "An appeal as of right shall be taken by filing a notice of
appeal with the clerk of the trial court within the time allowed by Rule 4." App.R. 3(A).
Under App.R. 4(A)(1), "a party who wishes to appeal from an order that is final upon its
entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry."
{¶ 9} The procedure for providing "[n]otice of filing" of an entry of judgment is set
forth in Civ.R. 58(B), which states:
When the court signs a judgment, the court shall endorse
thereon a direction to the clerk to serve upon all parties * * *
notice of the judgment and its date of entry upon the journal.
Within three days of entering the judgment upon the journal,
the clerk shall serve the parties in a manner prescribed by
Civ.R. 5(B) and note the service in the appearance docket.
Upon serving the notice and notation of the service in the
appearance docket, the service is complete. The failure of the
clerk to serve notice does not affect the validity of the judgment
or the running of the time for appeal except as provided in
App.R. 4(A).
{¶ 10} In this case, the relevant "manner prescribed by Civ.R. 5(B) " of serving a
judgment on a party referenced in the rule is by "mailing it to the person's last known
address by United States mail, in which event service is complete upon mailing." Civ.R.
No. 21AP-283 4
5(B)(2)(c). The exception to the thirty-day period triggered by "[t]he failure of the clerk to
serve notice" mentioned in Civ.R. 58(B) arises under App.R. 4(A)(3), which tolls the
deadline for filing an appeal: "In a civil case, if the clerk has not completed service of notice
of the judgment within the three-day period prescribed in Civ.R. 58(B), the 30-day periods
referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually
completes service."
{¶ 11} Mr. Howard asserts that he "signed for and received" the May 3, 2021
judgment entry on May 12, 2021, at which time he was "in segregation." (Appellant's Reply
at 6.) He "immediately requested the required forms" to file the appeal from the
institution's librarian, but, because of the librarian's schedule, did not receive them until
"7-9 days later." Id. at 6-7. Nevertheless, he insists, because he placed the notice of appeal
into "staff hands" to be mailed on May 24, 2021, it was "not [his] fault" that the notice of
appeal arrived two days late. Id. at 7-8. Mr. Howard has also attached a number of
documents, including his sworn affidavit, the prison mail log, and the relevant certificates
of services attached to his filings to support his assertions.
{¶ 12} However, there is no " 'actual knowledge' exception to the service
requirement of Civ.R. 58(B) " because the rule "requires that service be made by the clerk
of courts; there is no stated exception." Clermont Cty. Transp. Improvement Dist., 2015-
Ohio-241, ¶ 2, 6. In other words, we are precluded from examining Mr. Howard's affidavit
and accompanying papers to determine whether and when the clerk served him with the
final judgment in this case. "If we open the door to an exception when the parties have
actual knowledge of the judgment, we would be forcing the appellate courts into the murky
area of deciding whether actual knowledge has been established. Appellate courts are not
fact-finders, yet they would be forced into that role" by such an exception. Id. at ¶ 2. Thus,
only the clerk's notation on the docket proves whether a final judgment was served under
Civ.R. 58(B) and whether the thirty-day period for filing an appeal under App.R. 4(A) began
to run. The interplay of these rules implicates "the very foundation for jurisdiction in the
appellate court. It is simply too important to allow for notice in a casual manner. An office
of a clerk of courts exists, if for no other reason, to keep an accurate and easily accessible
record of what has happened in any given case." Id. ¶ 11.
No. 21AP-283 5
{¶ 13} Examining the record created by the clerk, we conclude that the final
judgment was not served on Mr. Howard in accordance with Civ.R. 58(B). The trial court
signed the journal entry granting MTC's motion to dismiss on May 3, 2021, and the clerk
entered the order on the docket the same day with the notation "notice of final appealable
order." On May 5, 2021, the clerk noted "proof of service issued – ordinary mail" upon
Mr. Howard. Under Civ.R. 58(B), "service is complete" if the clerk notes service on the
docket within three days of the entry of judgment. "When the Civil Rules on service are
followed, there is a presumption of proper service." Rogers v. United Presidential Life Ins.
Co., 36 Ohio App.3d 126, 128 (10th Dist.1987). However, on May 28, 2021, the clerk noted
"notice returned – not served" with an accompanying image of the envelope containing the
"final appealable order" returned by the U.S. Postal Service. This "positive statement of the
record that no service was made," which MTC's briefing fails to acknowledge, rebuts the
presumption of proper service of the final judgment. Moore v. Starks, 1 Ohio St. 369, 373
(1853). Notwithstanding Mr. Howard's affidavit and protestation that he received the
judgment on May 12, 2021, we are bound by Clermont County Transp. Improvement Dist.
to rely only upon the clerk's notation, and therefore conclude that the clerk did not complete
service under Civ.R. 58(B).
{¶ 14} Failure to complete service of a final judgment under Civ.R. 58(B) tolls the
thirty-day period for filing a notice of appeal. "In a civil case, if the clerk has not completed
service of notice of the judgment within the three-day period prescribed in Civ.R. 58(B), the
30-day periods referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the
clerk actually completes service." App.R. 4(A)(3). Mr. Howard's June 4, 2021 notice of
appeal was not untimely because the clerk never "completed service" as required to
commence the thirty-day period for filing a notice of appeal under App.R. 4(A)(1). E.g.,
White v. Cent. Ohio Gaming Ventures, LLC, 10th Dist. No. 18AP-780, 2019-Ohio-1078, ¶ 12
("Because the clerk did not complete service as required by Civ.R. 58(B), [the appellant's]
time to appeal never expired under App.R. 4(A)."). Accordingly, MTC's argument that we
lack jurisdiction to hear Mr. Howard's appeal is without merit.
{¶ 15} Having concluded that we have jurisdiction to hear Mr. Howard's appeal, we
turn to his assignments of error challenging the dismissal of his case for failure to comply
with the affidavit requirement of R.C. 2969.25(A). That statute states: "At the time that an
No. 21AP-283 6
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." R.C. 2969.25(A). The definition of a "civil action or appeal against a
government entity or employee" in R.C. 2969.25(A) is: "A civil action that an inmate
commences against the state, a political subdivision, or an employee of the state or a
political subdivision in a court of common pleas, court of appeals, county court, or
municipal court." R.C. 2969.21(B)(1)(a). The trial court dismissed Mr. Howard's complaint
after MTC moved to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which
relief may be granted, so appellate review of the decision is de novo. State ex rel. Person v.
McCarty, 165 Ohio St.3d 42, 2021-Ohio-1207, ¶ 8, citing Alford v. Collins-McGregor
Operating Co., 152 Ohio St.3d 303, 2018-Ohio-8, ¶ 10.
{¶ 16} Because they present similar arguments premised on the same alleged error,
we consider Mr. Howard's assignments of error and arguments supporting them together.
The trial court erred by dismissing his case under R.C. 2969.25(A), he argues, because it
improperly interpreted the statute's reference to "a government entity or employee" to
include MTC, a for-profit operator of a private prison. (Merit Brief at 3-4.) Mr. Howard
cites to various provisions of the Ohio Revised Code, including the subchapter governing
the operation of private correctional facilities, that differentiate state entities from private
contractors. Id. at 4-6 (citing R.C. 1.59(C), R.C. 1.60, and R.C. 9.06). He believes that we
should follow Anthony v. Lake Erie Corr. Inst., 11th Dist. No. 2005-A-0009, 2006-Ohio-
742, which held that R.C. 2969.25(A) does not apply to an inmate filing suit against
employees of a privately owned prison. Id. at 7. In Mr. Howard's view, the trial court's
reading of the statute is overbroad. Id. at 8.
{¶ 17} In response, MTC argues that R.C. 2969.21, the definition section applicable
to R.C. 2969.25, references the definition of "state" under R.C. 2743.01, which "makes no
distinction between privately or publicly operated and managed institutions." (Appellees'
Brief at 12.) Dismissing the Eleventh District's decision in Anthony as an "unpublished
opinion," MTC cites two Supreme Court of Ohio cases, State ex rel. McGrath v. McDonnell,
126 Ohio St.3d 511, 2010-Ohio-4726, and State ex rel. Howard v. Turner, 156 Ohio St.3d
No. 21AP-283 7
285, 2019-Ohio-759, to rebut Mr. Howard's arguments.1 According to MTC, these cases
stand for the proposition that NCCI, the prison it operates for profit, "is a 'government
entity' within the meaning of R.C. 2969.21(B)(1)(a)," the definition section applicable to
R.C. 2969.25. (Appellees' Brief at 14.) MTC asserts also that McGrath held that the R.C.
2969.21(B)(1)(a) definition was "applicable to the civil action filed by McGrath under R.C.
2969.25 against a privately operated and managed institution" and that Lake Erie
Correctional Institution, the private prison where he was incarcerated, was "a 'government
entity.' " Id.{¶ 18} In McGrath, an inmate filed a complaint for a writ of mandamus in the Eighth
District Court of Appeals but did not attach an affidavit to the complaint that complied with
the requirements of R.C. 2969.25. 2010-Ohio-4726 at ¶ 2. The Supreme Court of Ohio
affirmed the appellate court's dismissal. Despite the inmate's "claims to the contrary, R.C.
2969.25 applies to his mandamus complaint because he is an inmate, and his mandamus
case is a civil case for purposes of R.C. 2969.21(B)(1)(a), which addresses inmate actions
against government entities." Id. at ¶ 3, citing Fuqua v. Williams, 100 Ohio St.3d 211, 2003-
Ohio-5533, and State ex rel. Hawk v. Athens Cty., 106 Ohio St.3d 183, 2005-Ohio-4383.
{¶ 19} In Howard, the Supreme Court of Ohio held that an inmate's complaint for a
writ of mandamus filed in an appellate court was subject to the affidavit requirement of
R.C. 2969.26(A), a statute that also applies to a civil action "against a government entity or
employee," but one arising from a grievance. 2019-Ohio-759 at ¶ 1, 6. As in this case, Mr.
Howard was the inmate resisting the affidavit requirement. However, the only argument
he raised before the Supreme Court of Ohio at that time was that "the statute's requirements
should not apply to him, because he is unable to pay for copies of the required grievance
decisions since he has no funds in his inmate account." Id. at ¶ 5.
{¶ 20} In neither McGrath nor Howard did the Supreme Court of Ohio address the
question of whether an inmate filing a lawsuit against a privately owned, for-profit
correctional facility was subject to the affidavit requirement of R.C. 2969.25(A). "A
1 The distinction MTC highlights is of little to no significance. Rule 3.4 of the Supreme Court Rules for the
Reporting of Opinions states: "All opinions of the courts of appeals issued after May 1, 2002 may be cited as
legal authority and weighted as deemed appropriate by the courts without regard to whether the opinion was
published or in what form it was published."
No. 21AP-283 8
reported decision, although in a case where the question might have been raised, is entitled
to no consideration whatever as settling, by judicial determination, a question not passed
upon or raised at the time of the adjudication." State ex rel. Gordon v. Rhodes, 158 Ohio
St. 129 (1952), paragraph one of the syllabus. Nowhere in McGrath or Howard does the
Supreme Court of Ohio mention the fact that the defendant correctional institutions were
privately owned, for-profit entities or interpret the statutory requirements in light of that
fact. MTC's interpretation of those cases as controlling "construe[s]" the court's "silence
* * * as settling this issue," in contravention of the syllabus law of Gordon. State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 11. Accordingly, neither case controls our
resolution of the issue raised by Mr. Howard.
{¶ 21} The issue is straightforward and resolved by simply reading an unambiguous
statute. "When we consider the meaning of a statute, our first step is always to determine
whether the statute is 'plain and unambiguous.' " Jacobson v. Kaforey, 149 Ohio St.3d 398,
2016-Ohio-8434, ¶ 8, quoting State v. Hurd, 89 Ohio St.3d 616, 618 (2000). "If 'the
language of a statute is plain and unambiguous and conveys a clear and definite meaning
there is no occasion for resorting to rules of statutory interpretation,' because 'an
unambiguous statute is to be applied, not interpreted.' " Id., quoting Sears v. Weimer, 143
Ohio St. 312 (1944), paragraph five of the syllabus. When commencing a civil action
"against a government entity or employee," R.C. 2969.25(A), an inmate must file an
affidavit disclosing prior litigation. The phrase "government entity" is plain and admits of
no ambiguity that would include a for-profit corporation. Further supporting this reading
is the specific definition of the phrase "[a] civil action or appeal against a government entity
or employee” applicable to R.C. 2969.25(A): "A civil action that an inmate commences
against the state, a political subdivision, or an employee of the state or a political
subdivision in a court of common pleas, court of appeals, county court, or municipal court."
R.C. 2969.21(B)(1)(a). MTC is not a government entity, a state, or a political subdivision.
As a consequence, no inmate commencing a civil action against it is subject to the
requirement of R.C. 2969.25(A).
{¶ 22} MTC's reference to the definition of "state" under R.C. 2743.01, arrived
through a chain of references in the Ohio Revised Code, does not support its argument. As
stated, the definition of "[a] civil action or appeal against a government entity or employee"
No. 21AP-283 9
applicable to R.C. 2969.25(A) is set forth in R.C. 2969.21(B)(1)(a): "A civil action that an
inmate commences against the state, a political subdivision, or an employee of the state or
a political subdivision in a court of common pleas, court of appeals, county court, or
municipal court." In the foregoing definition, the word "state" is further defined as having
"the same meaning as in section 2743.01 of the Revised Code." R.C. 2969.21(G). In R.C.
2743.01(A), "state" is defined as: "the state of Ohio, including, but not limited to, the general
assembly, the supreme court, the offices of all elected state officers, and all departments,
boards, offices, commissions, agencies, institutions, and other instrumentalities of the
state," but not "political subdivisions." MTC argues that this definition's reference to
"institutions" includes it because the definition "makes no distinction between privately or
publicly operated and managed institutions." (Appellees' Brief at 12.) Not so. MTC's
reading omits "of the state," the final preposition from the definition. MTC cannot plausibly
be described as an "institution * * * of the state." Contrary to MTC's argument, R.C.
2743.01(A) supports our reading of R.C. 2969.25(A), as the latter statute does not reference
a privately-owned correctional institution when referring to a "government entity."
{¶ 23} As Mr. Howard points out, the Eleventh District Court of Appeals in Anthony
v. Lake Erie Corr. Inst., 11th Dist. No. 2005-A-0009, 2006-Ohio-742, reads the statute as
we do. The court rejected the private prison appellee's "broad reading" of the statute,
reasoning that when the Ohio General Assembly:
has chosen to define the meaning of "government entity," it has
always limited itself to the state of Ohio, or a political
subdivision. For example, R.C. 3723.01(E) defines
"government entity" to mean "the state, a state agency as
defined in section 1.60 of the Revised Code, a political
subdivision, or any entity of local government"; R.C.
5528.51(H) defines "local government entity" to mean "any
county, municipal corporation, township, or transportation
improvement district, or any other local government agency
designated by law"; R.C. 1557.01(I) defines "local government
entities" to mean "any county, municipal [**10] corporation,
township, or metropolitan or township park district, soil and
water conservation district, conservancy district, or joint
recreation district"; and R.C. 3717.01(N) defines "government
entity" to mean "this state, a political subdivision of this state,
another state, or a political subdivision or other local
government body of another state." Had the legislature chosen
No. 21AP-283 10
to depart from its traditional definition of "government entity,"
as reflected in the statutes just cited, it would have done so in
more certain terms. It is not logical to believe that the Ohio
General Assembly intended a different meaning to the term
"government entity" when it inserted the phrase into R.C.
2969.25(A) than when it had done so in every other statute it
enacted that contained the same phrase.
Id. at ¶ 23.
{¶ 24} We acknowledge that the Third District Court of Appeals has recently
disagreed with Anthony and held, based on Howard, that an inmate commencing a civil
action against employees of a privately-owned prison must satisfy R.C. 2969.25(A). Israfil
v. Mgt. & Training Corp., 3d Dist. No. 9-21-31, 2022-Ohio-1270. Conceding that the
inmate's argument that the statute should not apply to its lawsuit against the employees of
NCCI was "not entirely unreasonable," the court nevertheless held that it was "constrained"
by the holding of Howard. Id. at ¶ 7 ("Whatever our opinion of the court of appeals's [sic]
reasoning in Anthony or our own interpretation of R.C. 2969.25, we are constrained by the
precedent of the Supreme Court of Ohio.").
{¶ 25} The reasoning in Israfil is unpersuasive for two reasons. First, as discussed,
the status of the defendant as a private corporation was never mentioned or discussed in
Howard. Because we will not read a controlling interpretation of a statute into "a case
where the question might have been raised" but was not, Howard is "entitled to no
consideration whatever as settling, by judicial determination, a question not passed upon
or raised at the time of [its] adjudication." State ex rel. Gordon v. Rhodes, 158 Ohio St. 129(1952), paragraph one of the syllabus.
{¶ 26} Second, Israfil contains no independent basis for its holding other than citing
Howard. See Israfil at ¶ 7. Anthony, in comparison, provides an extensive discussion of
the statutory text and other thoroughly reasoned explanations for its holding. See Anthony
at ¶ 19-22 (rejecting the argument that a private prison liable under 42 U.S.C. 1983 for
violating a defendant's constitutional rights when acting under color of state law qualified
as a "government entity for purposes of R.C. 2969.25(A)," noting the "markedly different"
reach of the two statutes) and ¶ 24 (including a private, for-profit entity providing prison
services within the meaning of a "government entity" under R.C. 2969.25(A) was
No. 21AP-283 11
inconsistent with R.C. 9.06(B)(15), in which the Ohio General Assembly "took pains to
distance private prisons from 'government entities' " by requiring them to contractually
disavow any entitlement to sovereign immunity). We find the logic and reasoning of
Anthony far more persuasive than Israfil's cursory application of Howard.
{¶ 27} For the foregoing reasons, Mr. Howard was not subject to the requirements
of R.C. 2969.25(A) when he commenced a civil action against MTC and its employees.
Accordingly, we sustain his two assignments of error, reverse the judgment of the trial court
dismissing his action, and remand this cause to the trial court.
Judgment reversed; cause remanded.
LUPER SCHUSTER, P.J. and DORRIAN, J., concur.
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