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State ex rel. Keith v. Ohio Adult Parole Authority

Court of Appeals of Ohio, Tenth District

June 18, 2013

State of Ohio ex rel. Bernard R. Keith, Relator,
Ohio Adult Parole Authority, Cynthia Mausser, Chair of the Ohio [Adult] Parole Board, Respondents.


Bernard R. Keith, pro se.

Michael DeWine, Attorney General, and David A. Lockshaw, Jr., for respondents.



{¶ 1} Relator, Bernard R. Keith, pro se, an inmate incarcerated at Richland Correctional Institution, commenced this original action requesting this court to issue a writ of mandamus ordering respondents, Ohio Adult Parole Authority ("OAPA") and Cynthia Mausser ("Mausser"), Chair of the Ohio Parole Board, to correct erroneous information regarding the number of times he has been paroled, which was noted in the written decision of the Ohio Parole Board ("parole board") following a February 17, 2012 hearing, [1] and to order another hearing to consider the corrected information.

{¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals, the matter was referred to a magistrate of this court to conduct appropriate proceedings. The magistrate converted respondents' Civ.R. 12(B)(6) motion to a motion for summary judgment pursuant to Civ.R. 56. The magistrate concluded that relator's request for relief is moot due to the finding that OAPA's records have been corrected to indicate that relator was paroled six times and that, after the correction, the matter was submitted to the parole board for a vote on whether it would modify its previous decision. The board, by majority vote, decided not to modify the decision. The magistrate issued a written decision, which is appended hereto, recommending that the court enter summary judgment in favor of respondents and deny relator's motion for summary judgment.

{¶ 3} On January 24, 2013, recognizing that the magistrate's decision only disposed of relator's complaint in mandamus, this court stated in a journal entry that "[r]elator's May 8, 2012 motion to waive payment of deposit; and relator's May 8, 2012 application for peremptory writ shall be submitted to the court for determination at such time as the court addresses the merits of this action." (Jan. 24, 2013 Journal Entry.)

{¶ 4} On January 24, 2013, relator filed a motion for extension of time to file objections to the magistrate's decision. This court granted the motion, and relator objected to the magistrate's decision as follows:

1. Magistrate did not/does not address the gravamen [sic] of the complaint.
2. Magistrate has not properly determined the factual issues and applied the law to those issues.
3. Magistrate failed to dispose of all claims, fewer than all claims presented were addressed.
4. Magistrate[']s decision does not set forth sufficient facts upon which the Court can make an independent analysis of the issues presented.
5. Plain error in regards to the rationale as reflected in the legal conclusion of the Magistrate[']s decision.
6. Magistrate[']s decision can not and should not be accepted with a clear conscience.
7. Magistrate[']s decision reflects possible bias in the evaluation of the credibility of affidavits of Relator and the Respondents.
8. Magistrate[']s decision suggests that exhibits and the documentation attached to the filings of Relator were not examined or reviewed.

{¶ 5} The matter is now before this court for a full, independent review. State ex rel. Bell v. Pfeiffer, 10th Dist. No. 10AP-490, 2011-Ohio-2539, ¶ 3. For ease of analysis, we address together relator's objections, which challenge the magistrate's recommendation that this court grant respondents' motion for summary judgment and deny relator's motion for summary judgment. Pursuant to Civ.R. 56(C), summary judgment may be granted only when there remains no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978). Under summary judgment motion practice, the moving party bears an initial burden to inform the trial court of the basis for its motion and to point to portions of the record that indicate that there are no genuine issues of material fact on a material element of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280 (1996). Once the moving party has met its initial burden, the nonmoving party must produce competent evidence establishing the existence of a genuine issue for trial. Id. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must point to some evidence that affirmatively demonstrates that the nonmoving party has no evidence to support his or her claims. Id.

{¶ 6} Relator first argues that the magistrate's decision does not set forth sufficient facts upon which this court can make an independent analysis of the issues presented. After a review of the magistrate's decision, we disagree and proceed to address the issues presented herein.

{¶ 7} Relator contends that the magistrate's decision is factually incorrect in that the magistrate improperly referred to the February 17, 2012 hearing as a revocation hearing. Although relator also referred to that hearing as a revocation hearing in his complaint, the record indicates that the hearing was not a parole revocation hearing, but it was a parole release hearing. We sustain relator's objections to the extent that they challenge this factual discrepancy and amend the magistrate's decision to refer to the hearing as a parole release hearing.

{¶ 8} In his remaining objections, relator asserts that it was improper for the magistrate to conclude that his claim for mandamus relief is moot. He contends that, by doing so, the magistrate showed bias against him and did not consider all the issues and evidence presented. Relator claims that, although Mausser stated in an affidavit that the parole board reconvened on the matter of his parole after receiving corrected information on the number of times he had been paroled, it also had before it a June 5, 2012 letter from Trayce Thalheimer which indicated erroneously that he was sanctioned on two occasions. Relator objects to the letter's content and denies he was before the board and sanctioned on July 17, 1992.[2]

{¶ 9} In her affidavit, Mausser provided, in relevant part:

5. At [relator's] last parole hearing on February 17, 2012, the [parole board] decided to continue the hearing for sixty-two (62) months. At that time, the [parole board's] records indicated that [relator] had been paroled eight (8) times.
6. Since that hearing, the [parole board] has identified and corrected an error in its records regarding [relator]. The records have now been corrected to indicate that [relator] has been paroled six (6) times.
7. After making that correction, I submitted this matter to the [parole board] for a vote on whether, considering the correction, the [parole board] would modify its previous decision or grant [relator] another hearing.
8. By a majority vote, the [parole board] decided not to modify its previous decision or grant [relator] another hearing before the expiration of the sixty-two (62) month continuance.

(Respondents' Exhibit No. 1.)

{¶ 10} Thus, Mausser's affidavit establishes that the board considered the corrected information about relator's parole history and that it concluded that the corrected information had no impact on its original decision to deny him parole. Although Thalheimer's letter mentions relator being sanctioned by the parole board on other matters, there is nothing in the record to indicate that the board relied on that information when it reconvened on the issue of relator's parole. Thalheimer's letter may have been an attempt to explain why the parole board originally determined that relator had been paroled more than six times. Nonetheless, we agree with the magistrate that relator cannot litigate in this action the accuracy of any statements made by Thalheimer in his June 22, 2012 letter. Importantly, Thalheimer acknowledges in the letter that relator had actually been paroled six times.

{¶ 11} Accordingly, we conclude that the parole board has performed the relief sought by relator. Therefore, the magistrate correctly determined that relator's request for mandamus relief is moot because mandamus will not lie to compel an act that has already been performed. State ex rel. Chapnick v. E. Cleveland City School Dist. Bd. of Edn., 93 Ohio St.3d 449, 451 (2001). We overrule the balance of relator's objections.

{¶ 12} We turn now to relator's application for a peremptory writ. Pursuant to R.C. 2731.06, "[w]hen the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus." A peremptory writ is granted when the pertinent facts are uncontroverted and it appears beyond doubt that the relator is entitled to the requested relief. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, ¶ 14. Given our previous analysis, we find relator has not satisfied the requirements for a peremptory writ.

{¶ 13} Consequently, we adopt the magistrate's decision, including the findings of fact and conclusions of law, as amended, and, in accordance with that decision, grant respondents' motion for summary judgment and deny relator's motion for summary judgment. Relator's application for a peremptory writ is denied and relator's motion to waive payment of deposit is rendered moot due to the instant matter being resolved.

Respondent's motion for summary judgment granted; relator's motion for summary judgment denied; relator's application for ...

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