[Cite as State ex rel. Townsend v. Mohr, 2016-Ohio-5942.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio ex rel.                               :
Anthony Townsend,
                                                    :
                Relator,
                                                    :              No. 15AP-681
v.
                                                    :        (REGULAR CALENDAR)
Gary [Mohr], Director et al.,
                                                    :
                Respondents.
                                                    :




                                           D E C I S I O N

                                  Rendered on September 22, 2016


                On brief: Anthony Townsend, pro se.

                On brief: Michael DeWine, Attorney General, Zachary R.
                Huffman, and Caitlyn A. Nestleroth, for respondents.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

DORRIAN, P.J.

        {¶ 1} Relator, Anthony Townsend, pro se, an inmate of North Central
Correctional Complex, has filed this original action requesting a writ of mandamus to
order respondent, Gary Mohr, director of the Ohio Department of Rehabilitation and
Correction, to grant reconsideration of the April 27, 2015 parole board decision that
denied his parole.
        {¶ 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 who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. Because relator failed to meet
his burden of proof to show by clear and convincing evidence that the parole board relied
No. 15AP-681                                                                              2


on information that it knew or had reason to know was inaccurate, the magistrate
recommends this court deny relator's request for a writ of mandamus. We further find
relator failed to prove a clear legal right to reconsideration.
       {¶ 3} In his decision, the magistrate addressed relator's complaint that, on
April 27, 2015, the chair of the Ohio Parole Board was incorrectly informed about a "rule
39 conduct ticket." The magistrate noted that relator alleged in his complaint that he
informed the chair that the ticket was not his, and further alleges that the chair verbally
agreed with relator. The magistrate further noted that none of the documents appended
to relator's brief or submitted as evidence show or suggest that the parole board was
misinformed about the "rule 39 conduct ticket" when it rendered its decision and denied
parole. The magistrate concluded that relator seemed to ignore his own allegation that
the parole board chair corrected his initial statement and then agreed with relator that the
"conduct ticket wasn't relator." Accordingly, the magistrate determined relator did not
meet the burden of proof for entitlement to the writ by clear and convincing evidence.
       {¶ 4} Relator has filed objections to the magistrate's decision. Relator first argues
that the magistrate did not make true findings of fact and conclusions of law. We find the
magistrate did. Second, relator argues that the magistrate erred by not applying the
standard applicable to motions to dismiss pursuant to Civ.R. 12(B)(6). We find the
magistrate did not recommend that the writ be dismissed, pursuant to Civ.R. 12(B)(6),
but, rather, that the writ be denied for failure to meet the burden of proof for entitlement
to the writ by clear and convincing evidence. The magistrate was not required to apply a
Civ.R. 12(B)(6) standard.
       {¶ 5} "To be entitled to a writ of mandamus, relator must show: (1) a clear legal
right to the relief requested; (2) respondent is under a clear legal duty to perform the act
sought; and (3) relator has no plain and adequate remedy at law." State ex rel. Collier v.
Ohio Adult Parole Auth., 10th Dist. No. 07AP-530, 2008-Ohio-1798, ¶ 5, citing State ex
rel. Fain v. Summit Cty. Adult Probation Dept., 71 Ohio St.3d 658 (1995). Furthermore,
as noted by the magistrate, the Supreme Court of Ohio has held that the appropriate
standard of proof in mandamus cases is proof by clear and convincing evidence. State
ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 55. In State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161 (1967), the court observed that in
No. 15AP-681                                                                             3


mandamus cases, " '[t]he facts submitted and the proof produced must be plain, clear,
and convincing' " before a writ will be granted. Id., quoting 35 Ohio Jurisprudence 2d,
Discretion as to Issuance, Section 37, at 285 (1959). In Doner, the court observed that
"[p]arties seeking extraordinary relief bear a more substantial burden in establishing
their entitlement to this relief. In mandamus cases, this heightened standard of proof is
reflected by two of the required elements—a 'clear' legal right to the requested
extraordinary relief and a corresponding 'clear' legal duty on the part of the respondents
to provide it." Id. at ¶ 56. We agree with the magistrate that relator did not meet the
clear and convincing standard.
       {¶ 6} We have reviewed the documents included in respondent's stipulation of
evidence filed October 22, 2015 as well as the documents included in relator's
stipulation of evidence filed September 3, 2015. We were not able and did not review
documents contained in relator's master file at North Central Correctional Complex
which he cites on pages one and two of his stipulation of evidence, as these documents
were not entered into evidence and these are not part of the record before us. We also
note that the documents which are in the record are difficult to read due to the quality of
copies. Notwithstanding, we note first that the parole board decision and minutes
indicate the rationale for the parole board's decision was that relator "continues to get
tickets for violating institution rules." (Emphasis added.) The use of the plural "tickets"
suggests that relator has multiple tickets, above and beyond the rule 39 offense relator
says is "not him." Second, a conduct report details a rule 39 offense with date of offense
of September 10, 2012 for drinking wine. There is no indication that this offense is the
rule 39 offense relator says is "not him."      Third, the Inmate Disciplinary history
summary details numerous violations with dates of offenses from June 25, 2007 to
October 10, 2014. Taking this evidence into consideration, we can not say that relator
has proven by clear and convincing evidence that the parole board relied on
misinformation in denying him parole. Finally, the June 2, 2015 letter, submitted by
relator, which denies reconsideration indicates that "DRC Policy No. 105-PBD-04"
requires "relevant and significant new information that was either not available or not
considered at the time of the hearing" in order for reconsideration to be considered.
No. 15AP-681                                                                              4


Relator did not point to any new information. Therefore, we can not say that relator has
proven by clear and convincing evidence that he is entitled to reconsideration.
       {¶ 7} In addition to the magistrate's reasoning, we note that relator stated in his
brief submitted to the magistrate "[t]his is a civil action for declaratory judgment";
however, he argues the standard for writ of mandamus. (Relator's Brief at 2.) The
Supreme Court of Ohio has stated that " '[w]hen the allegations of a mandamus complaint
establish that the true objectives are a declaratory judgment and a prohibitory injunction,
the complaint does not state a cause of action and must be dismissed for want of
jurisdiction.' " State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72,
2003-Ohio-5062, ¶ 6, quoting State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298,
2003-Ohio-861, ¶ 23. The court has further stated that "[a] declaratory judgment is the
proper remedy to determine the constitutionality or constitutional application of parole
guidelines." Hattie v. Anderson, 68 Ohio St.3d 232, 235 (1994). To the extent relator
alleges questions of constitutionality or constitutional application of parole guidelines,
this court does not have jurisdiction to consider the same.
       {¶ 8} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's objections to the magistrate's decision and adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein, modifying
the decision as outlined herein. Accordingly, the requested writ of mandamus is hereby
denied.
                                                                     Objections overruled;
                                                                writ of mandamus denied.

                      BROWN and LUPER SCHUSTER, JJ., concur.
No. 15AP-681                                                                            5


                                       APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. Anthony Townsend,      :

               Relator,                      :

v.                                           :                     No. 15AP-681

Gary [Mohr], Director, et al.,               :                (REGULAR CALENDAR)
Ohio Department of Rehabilitation,
                                             :
               Respondent.
                                             :


                          MAGISTRATE'S DECISION

                              Rendered on March 29, 2016


               Anthony Townsend, pro se.

               Michael DeWine, Attorney          General,   and   Caitlyn   A.
               Nestleroth, for respondent.


                                     IN MANDAMUS

       {¶ 9} In this original action, relator, an inmate of the North Central Correctional
Complex ("NCCC"), requests a writ of mandamus ordering respondent, Gary Mohr, the
director of the Ohio Department of Rehabilitation and Correction ("ODRC"), to grant
reconsideration of the April 27, 2015 parole board decision that denied parole.
Findings of Fact:
       {¶ 10} 1. On July 16, 2015, relator, an NCCC inmate, filed this original action
against respondent.
       {¶ 11} 2. In his complaint, relator alleges that he was summoned to appear before
the Ohio Parole Board on April 27, 2015.
No. 15AP-681                                                                               6


       {¶ 12} 3. According to the complaint, at the April 27, 2015 hearing, the parole
board chair informed relator that he had a "rule 39 conduct ticket." (Complaint, 2.)
Relator informed the chair that "this wasn't relator and this was incorrect information."
(Complaint, 2.) After checking the record, the chair agreed that the "conduct ticket wasn't
relator." (Complaint, 2.)
       {¶ 13} 4. Relator appended to his complaint a copy of a document captioned "Ohio
Parole Board Decision and Minutes," which appears to be an ODRC form. The document
appears to have been completed by "Central Office Board Review" ("COBR") regarding an
April 27, 2015 hearing. The document indicates that relator is denied parole.
       {¶ 14} The document indicates that relator's offenses of conviction are trafficking
in drugs and aggravated burglary. The document states the rationale for denial of parole:
               Offender has served multiple commitments and failed
               supervision opportunities. His conduct has improved but he
               continues to get tickets for violating institution rules. Given
               his continued poor decision making as evidenced by his
               continued tickets, he is not suitable for release.

       {¶ 15} The document asks the parole board to mark one or more boxes aside
preprinted reasons for continued incarceration. The box is marked aside the following
reason:
               There is substantial reason to believe that due to serious
               infractions of division level 5120:9-06 of the Administrative
               Code, the release of the inmate would not act as a deterrent
               to the inmate or to other institutionalized inmates from
               violating institutional rules.

       {¶ 16} The document provides further information. It indicates that relator has
served 131 months of prison time and that his next parole hearing will be 24 months
following his April 27, 2015 hearing.
       {¶ 17} The document appended to the complaint indicates that it was validated on
April 30, 2015 by the parole board chair as an official minute of the Ohio Parole Board.
       {¶ 18} 5. Appended to the complaint is a copy of a five-page affidavit executed by
relator on May 19, 2015. The affidavit is written as a letter to the "Chief of Quality
Assurance."
       {¶ 19} The affidavit states in part:
No. 15AP-681                                                                          7


               It is upon Petitioner's [sic] Townsend's information and
               belief th[e] (COBR) decision rendered on or about May 27,
               2015 [sic], was in error/inadvertent misleading to
               Petitioner's continuation of confinement for 24 more
               months, due to the fact that Board member used incorrect
               and misleading information about a rule 39, which I
               informed him that this information was incorrect which the
               Board member agreed [during] my hearing.

               ***

               Petitioner Townsend, appeared before the Parole Board
               Chairman, on or about May 27, 2015 [sic], at North Central
               Correctional Complex. At that time Petitioner was informed
               that he had a rule 39 conduct ticket which Petitioner
               informed the the [sic] Chairman that this was not Petitioner
               and this was incorrect information and when the Chairman
               check [sic] the record he agreed that this conduct ticket
               wasn't Petitioner.

               ***

               Petitioner is [requesting] for reconsideration of the (COBR)
               panel to reconsider their decision due to incorrect error and
               misleading information in regard to a rule 39 ticket that was
               not part of Petitioner [sic] record.

       {¶ 20} 6. Appended to the complaint is a one-page letter to relator dated June 2,
2015 from a parole board quality assurance analyst. The letter states:
               Your request for reconsideration of a previous Parole Board
               decision was received and processed. DRC Policy No. 105-
               PBD-04 Requests for Reconsideration and Amendments to
               Parole Board Actions outlines circumstances under which
               rescission and reconsideration of the outcome of a parole
               hearing is permitted. Requests for reconsideration must be
               based on, and specifically refer to, relevant and significant
               new information that was either not available or not
               considered at the time of the hearing. In addition, any new
               information that forms the basis of a reconsideration request
               must be submitted without reasonable delay.

               Your request and all other relevant information was
               reviewed. It has been determined that your request does not
               meet the standard for reconsideration as set forth in [the]
               policy. Therefore, no modification will be made to the last
               action of the Parole Board. The decision sheet you received
No. 15AP-681                                                                                     8


                 clearly outlines the Board's rationale. There was no new
                 information presented in your letter.

                 Please be advised that any future correspondence received
                 regarding this same issue that does not address any
                 substantially different issues will not result in a subsequent
                 response from this office. Your letter and this response will
                 be made part of your permanent record and will be available
                 to the Board at all future hearings.

(Emphasis sic.)

          {¶ 21} 7. In the last paragraph of his complaint captioned "Relief," relator states:

                 Relator respectfully moves this honorable court to so (order)
                 the respondent's [sic] to issue a hearing immediately and
                 grant relator a hearing due to the fact that relator wasn't the
                 person with a conduct ticket under rule 39.

          {¶ 22} 8. On August 17, 2015, respondent filed an answer to the complaint.
          {¶ 23} 9. Thereafter, the magistrate issued a schedule for the filing of evidence and
briefs.
          {¶ 24} 10. On September 3, 2015, relator filed his evidence. His evidence includes
the aforementioned documents that are appended to his complaint.
          {¶ 25} 11. On October 22, 2015, respondent filed his evidence.
          {¶ 26} 12. On September 16, 2015, relator filed his merit brief.
          {¶ 27} 13. On October 22, 2015, respondent filed his merit brief.
          {¶ 28} 14. No reply brief was filed.
          {¶ 29} 15. On January 20, 2016, this action was submitted to the magistrate for his
written decision upon the evidence and briefs.
Conclusions of Law:
          {¶ 30} Because relator has failed to meet his burden of proof to show by clear and
convincing evidence that the parole board relied on information that it knew or had
reason to know was inaccurate, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
          {¶ 31} In State ex rel. Keith v. Ohio Adult Parole Authority, 141 Ohio St.3d 375,
2014-Ohio-4270, the Supreme Court of Ohio pronounced law that is applicable here:
No. 15AP-681                                                                             9


               We recognize that the OAPA's discretion in parole matters is
               wide-ranging. * * * R.C. 2967.03 vests discretion in OAPA to
               "grant a parole to any prisoner for whom parole is
               authorized, if in its judgment there is reasonable ground to
               believe that * * * paroling the prisoner would further the
               interests of justice and be consistent with the welfare and
               security of society." However, as in [Layne v. Ohio Adult
               Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-6719], that
               discretion must yield to statutory or regulatory
               requirements. Therefore, we hold that in any parole
               determination involving indeterminate sentencing, the
               OAPA may not rely on information that it knows or has
               reason to know is inaccurate.

               This is not to say that the OAPA must conduct an extensive
               investigation on the information it reviews for every prisoner
               to ensure accuracy, nor does it mean that the OAPA must
               credit every unsupported allegation by a prisoner that the
               information is inaccurate.

               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.

(Citations omitted.) Id. ¶ 26-28.
       {¶ 32} In mandamus, the relator must prove his entitlement to the writ by clear
and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-
6117, ¶ 57.
       {¶ 33} Relator alleged in his complaint that the parole board chair was incorrectly
informed initially about a so-called "rule 39 conduct ticket." However, according to the
allegations of the complaint, relator pointed out to the chair that the "conduct ticket
wasn't relator." After checking the record, the chair verbally agreed with relator.
       {¶ 34} None of the documents appended to relator's brief or submitted as evidence,
shows, or even suggests, that the parole board was misinformed about the rule 39 conduct
ticket when it rendered its written decision that denied parole.         Also, respondent's
evidence does not show or suggest that the parole board was misinformed when it
rendered its decision to deny parole.
No. 15AP-681                                                                                10


       {¶ 35} Here, relator seems to ignore his own allegation that the parole board chair
corrected his initial statement and then agreed with relator that the "conduct ticket wasn't
relator." Clearly, that the parole board chair was initially misinformed, as relator alleges,
cannot be a basis for a writ of mandamus when relator concedes that the chair corrected
himself after checking the record.
       {¶ 36} Again, relator has the burden in mandamus to prove entitlement to the writ
by clear and convincing evidence. Doner. Relator has failed to meet his burden of proof.
       {¶ 37} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.


                                               /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).
