[Cite as State ex rel. Wolfenbarger v. Mohr, 2019-Ohio-3739.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel.                                    :
Michael A. Wolfenbarger,
                                                     :
                 Relator,
                                                     :
v.                                                                  No. 18AP-508
                                                     :
Gary C. Mohr, ODRC Director et al.,                             (REGULAR CALENDAR)
                                                     :
                 Respondents.
                                                     :



                                           D E C I S I O N

                                   Rendered on September 17, 2019


                 Michael A. Wolfenbarger, pro se.

                 Dave Yost, Attorney General, and George Horvath, for
                 respondents.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

NELSON, J.
        {¶ 1} The central issue in this case has boiled down to whether the Ohio
Department of Rehabilitation and Correction ("ODRC," or "the department") is precluded
from directing that where possible, inmates seeking to file grievances about the operation
of the prison system do so electronically through computer kiosks provided for that
purpose. Relator Michael A. Wolfenbarger points to no language in law or regulation that
bars implementation of that preferred electronic approach: he has not met his legal burden
in this matter and is not entitled to the relief that he seeks.
No. 18AP-508                                                                              2

Procedural Background and Facts
       {¶ 2} After ODRC replaced its paper-based grievance procedure with the electronic
system, Mr. Wolfenbarger filed this mandamus action alleging that ODRC respondents had
eliminated its grievance procedure in violation of his constitutional rights and of the
officials' "legal duty" under various administrative regulations. June 22, 2018 Petition at
¶ 9. Asserting that he had been denied the appropriate grievance forms (sought, we shall
assume he means, in order actually to file a grievance), he requested that we issue a writ
directing the ODRC respondents to make available to him what he considers the
appropriate inmate grievance procedure. Id. at ¶ 5 and prayer for relief. We referred the
case to a magistrate pursuant to Civil Rule 53 and Local Rule 13(M) of the Tenth District
Court of Appeals.
       {¶ 3} The matter was briefed and the magistrate granted the unopposed motion of
one respondent (the director of administrative services) to dismiss him from the case. In
due course, the magistrate issued a decision that is appended to this opinion and to which
Mr. Wolfenbarger has filed objections. She determined that Mr. Wolfenbarger has not
demonstrated "that he has a clear legal right to file grievances on paper or that ODRC has
a clear legal duty to revert back to a paper grievance system." App'x at ¶ 31. Mr.
Wolfenbarger has objected to that and to other of the magistrate's conclusions; he asks that
we grant the requested writ rather than denying his request as the magistrate recommends.
See Relator Objection to the Magistrate Decision ("Objections") at 3, 5.
       {¶ 4} Pursuant to Civil Rule 53(D)(4)(d), we "undertake an independent review as
to the objected matters to ascertain [whether] the magistrate has properly determined the
factual issues and appropriately applied the law." Because our independent review leads
us to determine that mandamus is not warranted, we adopt the magistrate's ultimate
recommendation and deny the requested writ.
       {¶ 5} Mr. Wolfenbarger's post-petition filings make clear that while he concedes
the existence of the electronic grievance system, he maintains that department regulations
mandate that paper filings be permitted instead. See, e.g., Objections at 3 ("[u]nder ODRC
policy [citing Ohio Adm.Code 5120-9-31], the respondent is under a legal duty to provide
the relator * * * paper grievance forms"), 4 (objecting to "the magistrate decision [that]
No. 18AP-508                                                                                    3

relator has not demonstrated that ODRC abused its discretion when it instituted an
electronic grievance filing system at the prison").
       {¶ 6} In this vein, Mr. Wolfenbarger himself directs our attention to his exhibit 3,
a letter from the General Assembly's Correctional Institution Inspection Committee
offering its observations on "the new grievance process." Objections at 3; Relator Ex. 3 at
1. That letter refers to statistics showing "that inmates are utilizing the grievance procedure
now more than before, with this kiosk machine process, rather than when inmates were
using the paper forms." Relator Ex. 3 at 1. It continues by saying that "[t]he office of the
inspector at the Marion Correctional Institution also revealed that if inmates have trouble
utilizing the grievance procedure, they will assist them in the filing process." Id. And it
goes on to say that if inmates do not have access to the kiosk machines, paper forms will
still be available, id., and to advise that the "Inspector can assist with helping inmates to file
their complaints, as well as ensuring that inmates can get hard copies of the complaints and
responses," id. at 2.
       {¶ 7} We note that nothing in Mr. Wolfenbarger's complaint or in his subsequent
filings specifically alleges or suggests that he lacks access to or ability to use the electronic
system, or that there is some other impediment to his effective use of that system.
Law and Analysis
       {¶ 8} We agree with the magistrate that Mr. Wolfenbarger "has not alleged any
facts that demonstrate that his right to file grievances has been denied." App'x at ¶ 30. And
we find that Mr. Wolfenbarger is incorrect in his view that R.C. 5120.01 and Ohio
Administrative Code 5120-9-31 separately or together mandate that he be provided with
"paper grievance forms" nonetheless. See Objections at 3. Neither the statute nor the
regulation that Mr. Wolfenbarger invokes mentions "paper," or precludes the kiosk system
where available.
       {¶ 9} Rather, R.C. 5120.01 sets forth the authority of the director of rehabilitation
and correction and provides that all duties that she or he confers on divisions of the
department "shall be under the director's control" and performed under the rules and
regulations that the director sets forth.
       {¶ 10} And the Administrative Code section (even as in effect when Mr.
Wolfenbarger filed his mandamus complaint) establishes the grievance process but does
No. 18AP-508                                                                                4

not militate against the kiosk system. It requires that the department "shall provide
inmates with access to an inmate grievance procedure" to "address inmate complaints
related to any aspect of institutional life that directly and personally affects the grievant.
This may include complaints regarding the application of policies, procedures, conditions
of confinement, or the actions of institutional staff." 2017 Ohio Adm.Code 5120-9-31(A).
It further defines the parameters of the process (subsection B); directs that written
explanations and instructions for its use be provided (subsection C); requires its broad
availability (subsection D); establishes restrictions on and sanctions for its misuse
(subsections E and F); protects against retaliation for its use (subsections G and H);
safeguards the confidentiality of grievance records (subsection I); provides that "[o]nly
forms designated by the chief inspector may be used to file * * * grievances," ensuring that
"[s]uch forms shall be reasonably available to inmates regardless of their disciplinary status
or classification," and that "[i]nmates shall not be required to advise a staff member, other
than the inspector of institutional services, of the reason the form is being requested"
(subsection J); outlines the steps and timing of the written grievance process (subsection
K); mandates that appropriate remedies be provided for valid grievances (subsection L);
and designates specific procedures for grievances against the warden or inspector
(subsection M). 2017 Ohio Adm.Code 5120-9-31.
       {¶ 11} Apart from his generalized complaint as to the medium for the writing
required—apart from his argument, that is, with the new electronic as opposed to the old
paper filing process—Mr. Wolfenbarger does not contend that any of these specifications
has been disregarded or breached.
       {¶ 12} We agree with the magistrate that Mr. Wolfenbarger has been "unable to
demonstrate that he has a clear legal right to file grievances on paper or that ODRC has a
clear legal duty to revert back to a paper grievance system." App'x at ¶ 31. Mr. Wolfenbarger
does not even attempt to suggest that making filings through the electronic kiosk system is
beyond his grasp, or to explain how he has been divested of some constitutionally protected
liberty interest. See, e.g., State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479 (1997)
("state regulatory schemes do not create a constitutionally protected liberty interest merely
because regulations incorporate seemingly mandatory language"). Nor does he begin to
demonstrate that the administrative code section he cites enshrines a mandate that inmates
No. 18AP-508                                                                                5

must be permitted to use paper grievance forms even when electronic submission by
computer is available to them and they are able to use that process.
       {¶ 13} Mr. Wolfenbarger appears to try to stretch the various references to "forms"
in former Ohio Adm.Code 5120-9-31(J) as quoted above into an exclusion of all but "paper
forms," see Objections at 3, but the code provision itself didn't draw or command that
distinction. Forms can be either paper or electronic, and forms of either variety are capable
of being "used to file * * * grievances," made "reasonably available to inmates," or requested
from or shared with staff members. Nothing in that subsection translates into language
vesting Mr. Wolfenbarger with a "clear legal right" to paper forms, especially absent any
particularized showing of need that Mr. Wolfenbarger does not even claim.
Correspondingly, nothing in that language outlaws the kiosk system or creates a "clear legal
duty" in prison officials to provide paper forms in the circumstance shown here.
       {¶ 14} And in any event, the language of that regulatory subsection was amended
effective April 5, 2019 (while still leaving authority with the chief inspector). Redesignated
as 5120-9-31(I), the subsection now reads: "Only the grievance process designated by the
chief inspector may be used to file * * * grievances * * *. Such process shall be reasonably
available to inmates regardless of their disciplinary status or classification. Inmates shall
not be required to advise a staff member, other than the inspector of institutional services,
of the reason the process is being initiated." Again, this language does not support the
mandamus relief that Mr. Wolfenbarger requests in insisting on "paper forms"; indeed, the
current formulation of the regulations—the regulations that inform the process today—
provides even less of an argument for mandamus than did the previous iteration, assuming
that the specific details of either version have conferred enforceable rights to Mr.
Wolfenbarger, compare Larkins; Triplett v. Warren Corr. Inst., 10th Dist. No. 12AP-728,
2013-Ohio-2743 (regarding certain other prison regulations on other matters).
       {¶ 15} In sum, nothing in law or regulation prevents the department from having
grievances funneled and organized through the electronic filing system, absent facts not
alleged here. And aside from his administrative code argument that we do not find
persuasive, Mr. Wolfenbarger has not essayed a showing that "ODRC abused its discretion
when it instituted" the electronic filing system, see Objections at 4; we overrule that
objection to any extent that it is intended as separate from his objection—which we overrule
No. 18AP-508                                                                                6

as well—to the magistrate's bottom line conclusion that he has not shown a clear legal right
to use paper grievance forms, and that ODRC officials have no clear legal duty to provide
him with such forms in lieu of the electronic counterparts.
        {¶ 16} Because Mr. Wolfenbarger's own legal arguments and evidence do not bear
out his mandamus case (and we note that his exhibit 2 relates to ODRC employee
grievances, and that Mr. Wolfenbarger is not an ODRC employee) , we need not explore the
evidence to which Mr. Wolfenbarger objects as submitted by the ODRC officials. That
evidence, which to some extent may parallel the letter submitted by Mr. Wolfenbarger as
his own exhibit E, is extraneous because Mr. Wolfenbarger concedes the existence of the
kiosk electronic filing system and does not contend that he is unable to use it. In that
context, the allegations of his complaint as supplemented by his further submissions do not
show entitlement to the relief he requests. See, e.g., State ex rel. Berger v. McMonagle, 6
Ohio St.3d 28 (1983) (as cited by magistrate: for writ of mandamus, relator must show a
clear legal right to relief sought, a clear legal duty by respondent to perform the act
requested, and that relator has no plain and adequate remedy in the ordinary course of the
law).
        {¶ 17} Somewhat relatedly, perhaps, Mr. Wolfenbarger further objects that the
magistrate erred in not holding the ODRC respondent(s) in contempt for failing to meet
deadlines stated in the magistrate's scheduling order of July 26, 2018. Objections at 4
(probably referencing July 23, 2018 order). The record shows that the magistrate stayed
the briefing schedule in order to rule on a party's motion to dismiss, and that she set a new
briefing schedule. See Magistrate's Orders of August 14 and Sept. 26, 2018. There is no
reason to penalize a party for failing to comply with deadlines in a superseded scheduling
order. Moreover, the motion to dismiss the director of the department of administrative
services, to which Mr. Wolfenbarger seems to say he "was never given any opportunity" to
respond, Objections at 4, was filed on August 1, 2018 (in advance of the earlier briefing
date), and Mr. Wolfenbarger had not responded to it when the magistrate granted it,
unopposed, almost two months later. See Magistrate's Order of September 26, 2018. (Mr.
Wolfenbarger does not argue now that the director of the department of administrative
services could have provided him with the relief that he seeks, or that the DAS official's
dismissal was in error; he did not argue against that dismissal at the time, or move to set it
No. 18AP-508                                                                                7

aside, and it stands.) Mr. Wolfenbarger had no entitlement to a contempt order against any
respondent or counsel in any event, and such an order would not have made his mandamus
case any stronger. For a host of reasons, that objection is overruled.
       {¶ 18} Mr. Wolfenbarger also objects that the magistrate "fail[ed] to adjudicate
whether or not the relator has a plain and adequate remedy in the ordinary course of law
[under] R.C. 2731.05." Objections at 5. But because "all three" of the requirements for
mandamus must be shown for a writ to issue, the failure to demonstrate one of them is
sufficient to deny the writ. State ex rel. McGrath v. Ohio Adult Parole Auth., 8th Dist. No.
82287, 2003-Ohio-1969, ¶ 5. Mr. Wolfenbarger has failed to demonstrate either a clear
legal right to file grievances on paper or a clear legal duty on the part of ODRC officials to
reinstate a paper-based grievance process, so this objection, too, is overruled.
       {¶ 19} We turn, lastly, to Mr. Wolfenbarger's objection to the magistrate's
recommendation that because he "did not prevail and did not establish indigency, this court
should order relator to pay the costs of the proceedings." Objections at 1; App'x at ¶ 32.
Although Mr. Wolfenbarger's filing of his affidavit of indigency entitled him only to a waiver
for "prepayment" of the filing fee under R.C. 2969.25(C), we have discretion as to whether
to order a prison inmate to pay costs in a losing mandamus action. State ex rel. Pamer v.
Collier, 108 Ohio St.3d 492, 2006-Ohio-1507. In light of the relatively recent change in the
grievance filing process and given the significance of that process in and to the prison
system, costs on this occasion are waived.
       {¶ 20} Mr. Wolfenbarger has shown no basis for the writ of mandamus that he
requests. For the reasons set forth above, we deny the writ.
                                                                 Writ of mandamus denied.
                      BRUNNER and BEATTY BLUNT, JJ., concur.
                            _________________
No. 18AP-508                                                                                 8

                                       APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT



The State ex rel. Michael A. Wolfenbarger,     :

               Relator,                        :

v.                                             :                     No. 18AP-508

Gary C. Mohr ODRC Director et al.,             :               (REGULAR CALENDAR)

               Respondents.                    :



                          MAGISTRATE'S DECISION

                                Rendered on March 21, 2019


               Michael A. Wolfenbarger, pro se.

               Dave Yost, Attorney General, and George Horvath, for
               respondents.


                                      IN MANDAMUS

       {¶ 21} Relator, Michael A. Wolfenbarger, has filed this original action requesting
this court issue a writ of mandamus ordering respondent Gary C. Mohr as the Director of
the Ohio Department of Rehabilitation and Correction ("ODRC") to permit him to continue
filing grievances on paper instead of requiring him to file his grievances electronically.
Findings of Fact:
       {¶ 22} 1.    Relator is an inmate currently incarcerated at Marion Correctional
Institution.
       {¶ 23} 2. Relator filed this mandamus action on June 22, 2018.
No. 18AP-508                                                                              9

       {¶ 24} 3.   According to his complaint, respondent informed relator and other
inmates that inmate grievances would no longer be filed and processed on paper; instead,
an electronic inmate grievance procedure had been instituted whereby inmates, including
relator, could file their grievances electronically.
       {¶ 25} 4. Relator argues that this change in the grievance procedure denies him his
constitutional right to pursue institutional grievances. Inasmuch as Ohio Adm.Code 5120-
9-31 provides that inmates will be provided forms on which to file their grievances, relator
contends that ODRC is required to continue to use those forms, and is precluded from being
able to provide for the filing of grievances electronically.
       {¶ 26} 5. Respondent has submitted the affidavit of Pamela Shaw, administrative
assistant, ODRC-MCI, who is employed as the administrative assistant for the warden at
MCI. With regard to the new procedure for the filing of grievances, Ms. Shaw provides as
follows:
               [Five] On or about November 6, 2017, MCI, upon direction of
               the ODRC's central administrative office, the Operation
               Support Center, implemented the JPAY Grievance System.
               Please see Notice, Attch. 1, at p. 1.

               [Six] The JPAY Grievance Kiosk, also known as the JPAY
               Grievance System and Communication Center, "provides
               inmates with the ability to submit a grievance and manage the
               process [electronically] from the inmate kiosk, and allow[s]
               staff members to sort, view and respond to grievances and
               monitor the timeframe and status of open items." Please see
               JPAY Training Guide, Att.2, at p. 2.

               [Seven] Rather than using paper forms such as Informal
               Complaint Resolutions, Notices of Grievance, and Appeals to
               the Chief Inspector, inmates are now provided access to an
               electronic JPAY Grievance Kiosk.

               [Eight] The aforementioned paper forms required the inmate
               to handwrite their concerns on the form and submit it to the
               appropriate MCI staff member. For Appeals to the Chief
               Inspector, the forms had to be sent to the Chief Inspector's
               Office in Columbus, Ohio. The new system improves the
               process for both inmates and staff.

               [Nine] A notice was posted in each housing unit informing the
               inmates of the new grievance system. Certain inmates in each
No. 18AP-508                                                               10

          housing unit were designated to assist other inmates in using
          the new system. See Notice, Attachment 1, at pp. 2-6.

          [Ten] Following the implementation of the JPAY Grievance
          System, grievance forms were removed from the housing
          units because they were no longer needed to submit grievance
          materials.

          [Eleven] At the time the JPAY Grievance System was
          implemented, inmate Wolfenbarger was housed in the Maple
          Unit 1-Dorm (MA/1/19). There was an inmate in that housing
          area that was designated to assist other inmates when using
          the system. Please see Offender Detail, Movement History,
          Attachment 3, at p. 5 and Notice, Attachment 1, at p. 3.

          [Twelve] The dorms at MCI are open areas containing bunk
          beds. For most of any given day, inmates living in a dorm
          environment can walk around the dorm and freely
          communicate with other inmates.

          [Thirteen] At no time were any of MCI's inmates prevented
          from using the JPAY Grievance System with the possible
          exception of any inmates on grievance restriction due to
          abusing the grievance system for illegitimate purposes except
          when the complaint constituted an emergency.

          [Fourteen] Inmate Wolfenbarger was not on grievance
          restriction, accordingly, could have used the JPAY Grievance
          System.

          [Fifteen] Pursuant to a request by the Ohio Attorney General's
          Office, a review of the MCI Warden's and undersigned
          Administrative Assistant's kite logs ("kites" are used by
          inmates for internal written communication to staff) from
          October 1, 2017 to July 18, 2018 was conducted. According to
          those logs, inmate Wolfenbarger did not kite the Warden or
          undersigned Administrative Assistant on his claimed
          grievance issue or any other issue.

          [Sixteen] To the best of my knowledge and belief, inmate
          Wolfenbarger suffers from no medical or mental disorders
          that would prevent him from using the JPAY Grievance
          System.

          [Seventeen] During his incarceration at MCI, he has worked
          as a Porter, Laundry Attendant, Program Aide, Food Service
No. 18AP-508                                                                               11

              Worker, and Cook. Please see Offender Detail, Job
              Information, Attachment 3, at p.p. 3-4.
              [Eighteen] Inmate Wolfenbarger has demonstrated he is able
              to use JPAY Grievance System. On September 18, 2018, he
              used it to submit an Informal Complaint. Please see
              Attachment 4.

              [Nineteen] The attached documents, with the exception of any
              redactions or notations made by the Ohio Attorney General's
              Office, are true and accurate copies of documents kept within
              the normal course of business by ODRC and MCI.

Conclusions of Law:
       {¶ 27} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 28} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 29} Relator argues that ODRC has acted contrary to law by instituting an
electronic grievance system. Relator asserts that, because Ohio Adm.Code 5120-9-31
provides for the filing of inmate grievances on paper, ODRC is required to continue to
maintain a paper grievance system.
       {¶ 30} Prison regulations like Ohio Adm.Code 5120-9-31 are primarily designed to
guide correctional officials in prison administration and do not confer rights on inmates.
See State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477 (1997), and Triplett v. Warren
Corr. Inst., 10th Dist. No. 12AP-728, 2013-Ohio-2743. Relator has not alleged any facts
that demonstrate that his right to file grievances has been denied. In fact, in her affidavit,
Ms. Shaw stated that relator has availed himself of the electronic grievance system.
Furthermore, Ms. Shaw attached a copy of that grievance and the reply to the grievance
received by relator. As such, it is clear that relator is not being denied his right to file
grievances.
       {¶ 31} Relator is unable to demonstrate that he has a clear legal right to file
grievances on paper or that ODRC has a clear legal duty to revert back to a paper grievance
No. 18AP-508                                                                             12

system. Relator simply has not met his burden of proving that he is entitled to a writ of
mandamus.
       {¶ 32} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that ODRC abused its discretion when it instituted an electronic grievance
filing system at the prison, and this court should deny relator's request for a writ of
mandamus.     Further, pursuant to the above-cited authority, inasmuch as relator did not
prevail and did not establish indigency, this court should order relator to pay the costs of
the proceedings.

                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                              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).
