State ex rel. Bandy v. Gilson ( 2020 )

[Cite as State ex rel. Bandy v. Gilson, 2020-Ohio-1031.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL. WILLIE BANDY, :
Relator, :
No. 109330
v. :
THOMAS P. GILSON, ET AL., :
Respondents. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED
DATED: March 18, 2020
Writ of Mandamus
Motion No. 535446
Order No. 535968
Appearances:
Willie Bandy, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mark R. Musson, Assistant Prosecuting
Attorney, for respondent.
EILEEN A. GALLAGHER, J.:
Relator, Willie Bandy, seeks a writ of mandamus directing
respondents, Thomas P. Gilson, medical examiner of Cuyahoga County; Dawn
McCollum, deputy coroner; and Amy Michelle Riley, forensic scientist, to release
records held by the Cuyahoga County Medical Examiner’s Office. Respondents have
released all records to which Bandy is entitled. Therefore, respondents’ motion to
dismiss is granted and the request for writ of mandamus is dismissed. Further, this
court finds that Bandy’s complaint is frivolous. Bandy has demonstrated a repeated
history of filing frivolous actions in this court. Pursuant to Loc.App.R. 23, this court
deems Bandy a vexatious litigator.
On December 27, 2019, Bandy filed a complaint for writ of
mandamus. In his complaint, he asserted that respondents failed to provide all
responsive records held by them pursuant to his records request filed on
September 18, 2014. That request, attached to his complaint, acknowledged
receiving an autopsy report relating to an autopsy performed on a decedent, Ray
Emerson. He further stated that he did not receive any photographs of the decedent
taken by the coroner. Bandy’s records request letter sought photographs of the
decedent.
Bandy claims that he is entitled to copies of any photographs in the
coroner’s possession. Bandy’s complaint also requests that this court order
respondents to produce the death certificate and autopsy report for Mr. Emerson,
along with photographs and x-rays of the decedent’s 13 stab wounds.
Respondents filed a motion to dismiss on January 24, 2020, arguing
that Bandy’s complaint fails on its face. On January 31, 2020, Bandy filed his
opposition to the motion to dismiss again claiming he is entitled to all the requested
records.
“To be entitled to a writ of mandamus compelling the production of
public records, a relator must establish by clear and convincing evidence that the
relator has a clear legal right to the records and that the respondent has a clear legal
duty to provide them.” State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub.
School Dist., 147 Ohio St. 3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, ¶ 11, citing State
ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 2015-Ohio-974, 31 N.E.3d
616, ¶ 10.
The matter is before this court on respondents’ motion to dismiss. A
motion to dismiss shall be granted “if it appears beyond doubt, after presuming the
truth of all material factual allegations in the complaint and making all reasonable
inferences in [the nonmovant’s] favor, that he is not entitled to the requested
extraordinary relief.” State ex rel. Doe v. Gallia Cty. Common Pleas Court, 153 Ohio
St.3d 623, 2018-Ohio-2168, 109 N.E.3d 1222, ¶ 7, citing State ex rel. Bates v. Court
of Appeals for the Sixth Appellate Dist., 130 Ohio St. 3d 326, 2011-Ohio-5456, 958
N.E.2d 162, ¶ 8.
First, it must be noted that Bandy specifically states that his
complaint does not rely on Ohio’s Public Records Act, R.C. 149.43. Instead, Bandy
relies on R.C. 313.10 as the basis for asserting his claim that the coroner’s office has
a duty to provide the requested photographs and has failed to do so. Bandy disavows
seeking records under Ohio’s Public Records Act, R.C. 149.43.1
1 Because Bandy’s complaint fails on its face, this court does not need to address
respondents’ claim that Bandy must satisfy the requirements of R.C. 149.43 before seeking
public records from a coroner’s office, such as first seeking leave from the trial judge who
R.C. 313.10(A)(1) provides:
Except as otherwise provided in this section, the records of the coroner who
has jurisdiction over the case, including, but not limited to, the detailed
descriptions of the observations written during the progress of an autopsy and
the conclusions drawn from those observations filed in the office of the
coroner under division (A) of section 313.13 of the Revised Code, made
personally by the coroner or by anyone acting under the coroner’s direction
or supervision, are public records. Those records, or transcripts or photostatic
copies of them, certified by the coroner shall be received as evidence in any
criminal or civil action or proceeding in a court in this state, as to the facts
contained in those records. The coroner of the county where the death was
pronounced shall be responsible for the release of all public records relating
to that death.
The statute then goes on to delineate which records held by a
coroner’s office are not public records:
(a) Preliminary autopsy and investigative notes and findings made by the
coroner or by anyone acting under the coroner’s direction or supervision;
(b) Photographs of a decedent made by the coroner or by anyone acting
under the coroner’s direction or supervision;
(c) Suicide notes;
(d) Medical and psychiatric records provided to the coroner, a deputy
coroner, or a representative of the coroner or a deputy coroner under section
313.091 of the Revised Code;
(e) Records of a deceased individual that are confidential law enforcement
investigatory records as defined in section 149.43 of the Revised Code;
(f) Laboratory reports generated from the analysis of physical evidence by the
coroner’s laboratory that is discoverable under Criminal Rule 16.
presided over his criminal case. See State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s
Office, 152 Ohio St. 3d 163, 2017-Ohio-8714, 94 N.E.3d 498.
(Emphasis added.) R.C. 313.10(A)(2). The statute specifies to whom full and
complete records may be provided. They include the next of kin of the decedent as
defined in R.C. 313.10(C)(1), journalists as set forth in R.C. 313.10(D), and an insurer
for us as specified in R.C. 313.10(E). A person convicted of murdering the decedent
is not listed as one that is entitled to the full and complete records from a coroner’s
office pursuant to R.C. 313.10.
The statute specifically excludes photographs of the decedent from
the definition of public records. The request letter attached to Bandy’s complaint
indicates that he has already received a copy of the autopsy report. The letter goes
on to request pictures of the deceased and only pictures of the deceased. Bandy, the
man convicted of killing Ray Emerson, is not included the list of individuals who are
entitled to a complete copy of all the records held by the coroner. Therefore, the
coroner is under no obligation to provide Bandy with pictures of a decedent under
R.C. 313.10(A)(2)(b).
Respondents have not failed to fulfill a legal duty in this respect.
Further, in his request letter, Bandy failed to request the additional items he now
seeks from the coroner as set forth in his complaint. It is clear that Bandy can prove
no set of facts entitling him to relief in this case. He received that to which he is
entitled under R.C. 313.10 prior to the filing of this action.
Accordingly, Bandy’s complaint is frivolous. Loc.App.R. 23(A)
provides,
If the Eighth District Court of Appeals, sua sponte or on motion by a
party, determines that an appeal, original action, or motion is frivolous
or is prosecuted for delay, harassment, or any other improper purpose,
it may impose on the person who signed the appeal, original action,
or motion, a represented party, or both, appropriate sanctions. The
sanctions may include an award to the opposing party of reasonable
expenses, reasonable attorney fees, costs or double costs, or any
other sanction the Eighth District Court of Appeals considers just.
An appeal, original action, or motion shall be considered frivolous if it
is not reasonably well-grounded in fact, or warranted by existing law,
or by a good faith argument for the extension, modification, or
reversal of existing law.
R.C. 2323.51(A)(2) further defines “frivolous conduct” as, among
other things, conduct that “is not warranted under existing law, cannot be supported
by a good faith argument for an extension, modification, or reversal of existing law,
or cannot be supported by a good faith argument for the establishment of new law.”
R.C. 2323.51 applies an objective standard in determining frivolous
conduct, as opposed to a subjective one. Hardin v. Naughton, 8th Dist.
Cuyahoga No. 99182, 2013-Ohio-2913, ¶ 14, citing State Farm Ins. Co.
v. Peda, 11th Dist. Lake No. 2004-L-082, 2005-Ohio-3405. The finding
of frivolous conduct under R.C. 2323.51 is determined without
reference to what the individual knew or believed. Id., citing Ceol v.
Zion Indus., Inc., 81 Ohio App. 3d 286, 289, 610 N.E.2d 1076 (9th
Dist.1992). In determining whether a claim itself is frivolous, the test is
whether no reasonable lawyer would have brought the action in light of
the existing law. The James Lumber Co. v. Nottrodt, 8th Dist.
Cuyahoga No. 97288, 2012-Ohio-1746, ¶ 25, citing Orbit Elecs., Inc. v.
Helm Instrument Co., 167 Ohio App. 3d 301, 2006-Ohio-2317, 855
N.E.2d 91 (8th Dist.).
Crenshaw v. Integrity Realty Group, L.L.C., 8th Dist. Cuyahoga No. 100031, 2013-
Ohio-5593, ¶ 8.
Bandy’s complaint is not grounded in fact, supported by existing law
or a reasonable extension of existing law. R.C. 313.10, the only statute upon which
Bandy relies, clearly excludes photographs of a decedent from the definition of
public records. Bandy has not argued that he fits within one of the exceptions set
forth in the statute, and Bandy specifically disavows reliance on other sources of
statutory authority for the release of records. Therefore, the filing of the complaint
for a writ of mandamus seeking records to which Bandy is clearly not entitled under
the statute constitutes frivolous conduct.
Further, Bandy has a demonstrated history of nonmeritorious filings
in this court. See, e.g., Bandy v. Cuyahoga Cty. Prosecutor’s Office, 8th Dist.
Cuyahoga No. 106635, 2018-Ohio-3679; State v. Bandy, 8th Dist. Cuyahoga Nos.
101785 and 101786, 2015-Ohio-1033; Bandy v. Villanueva, 8th Dist. Cuyahoga No.
98116, 2012-Ohio-3695; State ex rel. Bandy v. Villanueva, 8th Dist. Cuyahoga No.
97609, 2012-Ohio-2313; State ex rel. Bandy v. Villanueva, 8th Dist. Cuyahoga No.
97826, 2012-Ohio-1750; State ex rel. Bandy v. Villanueva, 8th Dist. Cuyahoga No.
97870, 2012-Ohio-1551. This court has previously admonished Bandy for his
repeated filings and warned him that further frivolous filings may result in this court
declaring him a vexatious litigator. Bandy, 8th Dist. Cuyahoga Nos. 101786 and
101786, 2015-Ohio-1033, at ¶ 36. That time has come.
Pursuant to Loc.App.R. 23(B), Bandy is prohibited from instituting or
continuing legal proceedings in the Ohio Eighth District Court of Appeals without
first obtaining leave. Also, the filing of any future action, motion, or appeal must be
accompanied by the appropriate filing fee and security for costs as required by
Loc.App.R. 3(A).
Respondents’ motion to dismiss is granted. This court also orders
that Bandy bear the costs of this action. The clerk of courts is directed to serve notice
of this judgment upon all parties as provided in Civ.R. 58(B).
Complaint dismissed.
_______________________________
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR