[Cite as State ex rel. Arnold v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-892.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State ex rel. Jason Arnold,                             :

                 Relator,                               :
                                                                            No. 19AP-376
v.                                                      :
                                                                    (REGULAR CALENDAR)
Ohio Department of Rehabilitation                       :
and Correction et al.,
                                                        :
                 Respondents.
                                                        :


                                               DECISION

                                      Rendered on March 10, 2020


                 Jason Arnold, pro se.

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

                                             IN MANDAMUS

BEATTY BLUNT, J.
        {¶ 1} Relator, Jason Arnold, has filed this original action requesting this court
issue a writ of mandamus ordering respondents Ohio Department of Rehabilitation and
Correction and the Bureau of Sentence Computation, to provide him with five days of
earned credit toward his sentence for each month in which he has participated in
approved prison programs pursuant to R.C. 2967.193 and Ohio Adm.Code 5120-2-06.
        {¶ 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. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court deny relator's request for a writ of mandamus.
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      {¶ 3} No objections have been filed to the magistrate's decision.
      {¶ 4} We have found no error of law or other defect on the face of the magistrate's
decision. Therefore, we adopt the magistrate's decision as our own, including the findings
of fact and the conclusions of law therein. In accordance with the magistrate's decision,
we grant respondents' motion for summary judgment, find moot respondents' motion to
dismiss, and deny relator's requested writ of mandamus.
                                                              Writ of mandamus denied.
                         SADLER, P.J., and KLATT, J., concur.
                                 ________________
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                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Jason Arnold,             :

              Relator,                      :

v.                                          :                   No. 19AP-376

Ohio Department of Rehabilitation           :              (REGULAR CALENDAR)
and Correction et al.,
                                            :
              Respondents.
                                            :



                         MAGISTRATE'S DECISION

                             Rendered on October 30, 2019



              Jason Arnold, pro se.

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


                                   IN MANDAMUS
                             ON RESPONDENTS' MOTIONS

       {¶ 5} Relator, Jason Arnold, has filed this original action requesting this court
issue a writ of mandamus ordering respondents, Ohio Department of Rehabilitation and
Correction ("ODRC") and the Bureau of Sentence Computation ("BOSC"), to provide
him with five days of earned credit towards his sentence for each month that he has
participated in approved prison programs pursuant to R.C. 2967.193 and Ohio
Adm.Code 5120-2-06.
                                                                                      4

Findings of Fact:
       {¶ 6} 1. Relator is an inmate currently incarcerated at Lebanon Correctional
Institution.
       {¶ 7} 2. Relator is incarcerated after entering pleas of guilty in two separate
cases in the Muskingum County, Ohio Court of Common Pleas. In Muskingum C.P. No.
CR2017-0420, relator was found guilty of having a weapon under disability, in violation
of R.C. 2923.13(A)(3), carrying a concealed weapon, in violation of R.C. 2923.12(A)(2),
and possession of drugs (marijuana) in violation of R.C. 2925.11(A). He was sentenced
to serve 36 months on Count 1 and 12 months on Count 2 to be served concurrently.
Inasmuch as relator was currently on post-release control in another criminal case, the
trial court ordered that he serve that mandatory one-year sentence prior to beginning to
serve the above 36-month sentence.
       {¶ 8} Relator was also found guilty in Muskingum C.P. No. CR 2018-0107 on
one count of possession of drugs (cocaine), in violation of R.C. 2925.11(A) and
tampering with evidence, in violation of R.C. 2921.12(A)(1). The trial court sentenced
him to serve 11 months on Count 1 and 30 months on Count 2. Those terms were to be
served concurrently for an aggregate prison term of 30 months and ordered to be served
concurrently with the sentence imposed in C.P. No. CR 2017-0420.
       {¶ 9} 3. According to the affidavit of Gregory, an employee of ODRC, relator
received 173 days credit as ordered by the trial court as well as 96 days of credit for
participation in various institutional programming.
       {¶ 10} 4. Relator inquired about his sentence and argued that his number of days
of credit for participation in institutional programming had not been properly
calculated.
       {¶ 11} 5. In a letter dated June 21, 2019, Charlene Gregory sent relator the
following response:
               Per your request, I have reviewed the sentence computation
               of the above-named inmate and can provide the following
               information.

               Arnold was admitted on 04/27/2018 under inmate number
               A743861. On Muskingum County case CR20170420 he was
               sentenced to serve 3 years on count 1, Weapons Under
               Disability 2923.13 F3 concurrent with 1 year on count 2,
                                                                                           5

              Carrying a Concealed Weapon 2923.12 F4. He was also
              sentenced to a 1 year Post Release Control sentence 2929.141
              to be served consecutively with the three year prison
              sentence on this case. On Muskingum County case
              CR20180107 he was sentenced to serve 11 months on count
              1, Possession of Cocaine 2925.11 F5 and 30 months on count
              4, Tampering With Evidence 2921.12 F3. He was granted jail
              credit in both cases from 11/05/2017 until his admission
              date, which totaled 173 days.

              He began serving on his Post Release Control Sentence upon
              admission to prison and the expiration of said term was
              calculated as one year from the date of admission, or
              04/26/2019. He was eligible for earned participation credit
              after the completion of this term. His felony sentence was
              then calculated starting the day after the Post Release
              Control Sentence expired as 3 years with 173 days of jail
              credit.

              He has earned 90 days of credit under HB49 for completion
              of eligible programming. This was applied on 05/10/2019.
              He has also earned one day of participation credit under
              HB86 for the month of May 2019, and 5 days of bonus credit
              for participation in two qualifying programs, also applied for
              the month of May 2019. With all earned credit, his current
              expiration of stated term is 07/30/2021.

              I trust you find this information helpful. If you need
              anything further, please feel free to contact me via e-mail or
              at the address stated below.

       {¶ 12} 6. As can be seen from the above letter, relator was given 90 days of credit
for completion of eligible programming as well as an additional 6 days of credit for
participation in certain programming.
       {¶ 13} 7. In this mandamus action, relator argues that respondents were
required to grant him 5 days of credit for each of the 3 programs which he completed.
As such, relator contends that he should have been granted 15 days of credit instead of
the 6 days of credit he was given.       Relator contends that R.C. 2967.193and Ohio
Adm.Code 5120-2-06 require that he be given 5 days of credit per program.
       {¶ 14} 8. Respondents have filed motions to dismiss and for summary judgment
arguing in part that relator already raised this issue in another case he filed in this court
in case No. 19AP-183 and also that relator has not demonstrated that he is entitled to a
                                                                                         6

writ of mandamus.
      {¶ 15} 9.   Relator has filed responses and the matter is currently before the
magistrate for review.
Conclusions of Law:
      {¶ 16} For the reasons that follow, it is this magistrate's decision that relator
cannot demonstrate that he is entitled to a writ of mandamus and this court should
grant respondents' motion and dismiss relator's mandamus action.
      {¶ 17} 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).
      {¶ 18} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint,
the court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
      {¶ 19} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that
relator can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community
Tenants Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is
not subject to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a
legal duty by the respondent and the lack of an adequate remedy at law for relator with
sufficient particularity to put the respondent on notice of the substance of the claim
being asserted against it, and it appears that relator might prove some set of facts
entitling him to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn.,
72 Ohio St.3d 94 (1995). For the following reasons, respondent's motion should be
granted and relator's complaint should be dismissed.
      {¶ 20} A motion for summary judgment requires the moving party to set forth the
legal and factual basis supporting the motion. To do so, the moving party must identify
portions of the record which demonstrate the absence of a genuine issue of material fact.
                                                                                         7

Dresher v. Burt, 75 Ohio St.3d 280 (1996). Accordingly, any party moving for summary
judgment must satisfy a three-prong inquiry showing: (1) that there is no genuine issue
as to any material facts; (2) that the parties are entitled to judgment as a matter of law;
and (3) that reasonable minds can come to but one conclusion, which conclusion is
adverse to the party against whom the motion for summary judgment is made.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978).
       {¶ 21} Relator contends that R.C. 2967.193and Ohio Adm.Code 5120-2-06
mandate that respondents provide him with five days of credit for each program he
completed.
       {¶ 22} R.C. 2967.193 provides, in pertinent part:
              (A)

              (1) Except as provided in division (C) of this section and
              subject to the maximum aggregate total specified in division
              (A)(3) of this section, a person confined in a state
              correctional institution or placed in the substance use
              disorder treatment program may provisionally earn one day
              or five days of credit, based on the category set forth in
              division (D)(1), (2), (3), (4), or (5) of this section in which the
              person is included, toward satisfaction of the person’s stated
              prison term, as described in division (F) of this section, for
              each completed month during which the person, if confined
              in a state correctional institution, productively participates
              in an education program, vocational training, employment
              in prison industries, treatment for substance abuse, or any
              other constructive program developed by the department
              with specific standards for performance by prisoners or
              during which the person, if placed in the substance use
              disorder treatment program, productively participates in
              the program.

              ***

              (2) Unless a person is serving a mandatory prison term or a
              prison term for an offense of violence or a sexually oriented
              offense, and notwithstanding the maximum aggregate total
              specified in division (A)(3) of this section, a person who
              successfully completes any of the following shall earn ninety
              days of credit toward satisfaction of the person’s stated
              prison term or a ten per cent reduction of the person’s
              stated prison term, whichever is less:
                                                                                       8

             (a) An Ohio high school diploma or Ohio certificate of high
             school equivalence certified by the Ohio central school
             system;

             (b) A therapeutic drug community program;

             (c) All three phases of the department of rehabilitation and
             correction’s intensive outpatient drug treatment program;

             (d) A career technical vocational school program;

             (e) A college certification program;

             (f) The criteria for a certificate of achievement and
             employability as specified in division (A) (1) of section
             2961.22of the Revised Code.

             (3) Except for persons described in division (A)(2) of this
             section, the aggregate days of credit provisionally earned by
             a person for program or activity participation and program
             and activity completion under this section and the aggregate
             days of credit finally credited to a person under this section
             shall not exceed eight per cent of the total number of days in
             the person’s stated prison term.

             (B) The department of rehabilitation and correction shall
             adopt rules that specify the programs or activities for which
             credit may be earned under this section, the criteria for
             determining productive participation in, or completion of,
             the programs or activities and the criteria for awarding
             credit, including criteria for awarding additional credit for
             successful program or activity completion, and the criteria
             for denying or withdrawing previously provisionally
             earned credit as a result of a violation of prison rules, or
             program or department rules, whichever is applicable.

(Emphasis added.)

      {¶ 23} Ohio Adm.Code 5120-2-06 mirrors R.C. 2967.193and specifically
identifies the types of programs which qualify for days of earned credit and explains the
inmate's responsibilities with regard to the completion of those programs.
      {¶ 24} Upon review of R.C. 2967.193, itis apparent that under (A)(2),
respondents have provided relator with 90 days of credit towards the satisfaction of his
prison term as is indicated in the affidavit of Gregory. Furthermore, a plain reading of
                                                                                        9

the statute indicates that the determination of the number of days of credit which an
inmate may earn is discretionary and not mandatory. Specifically, the statute provides
in every paragraph that upon successful completion of a program the inmate "may" be
awarded one day of credit or "may" be awarded five days of credit. A review of Ohio
Adm.Code 5120-2-06 corresponds with the revised code provisions. As such, it is clear
that respondents have discretion concerning the number of days of credit which an
inmate will receive upon completion of programming.
      {¶ 25} In the present case, relator earned one credit for completion of a specific
program and five bonus credits for the completion of two additional programs. As such,
it appears that relator earned one credit for one program and two and one-half credits
for each of two programs he completed. Everything points to the fact that respondents
exercised their discretion to determine the number of days of credit which relator would
receive upon successful completion of certain institutional programming and relator
cannot demonstrate that the respondents abused their discretion when they made this
determination.
      {¶ 26} Respondent argues that the doctrine of res judicata applies here and that,
inasmuch as relator raised this issue in case No. 19AP-183, the magistrate should simply
dismiss this action as a result. However, in relator's complaint in case No. 19AP-183, he
does mention as an issue the number of days of credit which he was awarded for the
completion of institutional programming tangentially near the end of his complaint and,
as such, the magistrate finds that res judicata does not necessarily apply to an argument
raised in this manner.
      {¶ 27} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that respondents abused their discretion when they awarded him six days
of earned credit for the successful completion of three separate institutional programs
and relator is not entitled to a writ of mandamus. This court should find in favor of
respondents, grant respondents' motion for summary judgment, and deny the motion to
dismiss as moot.

                                            /S/ MAGISTRATE
                                            STEPHANIE BISCA
                                                                    10




                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).
