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Russell v. Thornton

United States District Court, S.D. Ohio, Eastern Division

May 2, 2018

ROBERT W. RUSSELL, Plaintiff,
v.
STEPHEN W. THORNTON, et al., Defendants.

          EDMUND A. SARGUS, JR. CHIEF JUDGE

          REPORT AND RECOMMENDATION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned for consideration of Plaintiff's Motion for Leave to Proceed in forma pauperis (Doc. 1) and the initial screen of Plaintiff's Complaint under 28 U.S.C. § 1915(e)(2).

         For the reasons that follow, Plaintiff's request to proceed in forma pauperis is GRANTED. Furthermore, having performed an initial screen and for the reasons that follow, it is RECOMMENDED that the Court DISMISS Plaintiff's Complaint in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

         I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

         Upon consideration of Plaintiff's Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2) (Doc. 1), Plaintiff's Motion is GRANTED. Plaintiff is required to pay the full amount of the Court's $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff's certified trust fund statement reveals that he has an insufficient amount to pay the full filing fee. (Id.).

         Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff's inmate trust account at the Southeastern Correctional Institution is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six-months immediately preceding the filing of the Complaint.

         After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks should be made payable to Clerk, United States District Court and should be sent to:

Prisoner Accounts Receivable 260 U.S. Courthouse 85 Marconi Boulevard Columbus, Ohio 43215

         The prisoner's name and this case number must be included on each check.

         Consequently, it is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison cashier's office. The Clerk is further DIRECTED to forward a copy of this Order to the Court's financial office in Columbus.

         II. INITIAL SCREEN

         A. Background

         In this case, Plaintiff brings claims for violations of his civil rights based upon Defendants' alleged failure to provide him with certain documents which he contends are public information. (See generally Doc. 1-2). Plaintiff believes that those documents contain “evidence that exonerates and exculpates him” from his 2003 conviction for the rape, felonious sexual penetration, gross sexual imposition, and kidnapping of his step-daughter, which resulted in his incarceration. (Id. at ¶ 49). More specifically, Plaintiff contends that the documents “exemplify a pattern of false accusations against multiple persons by [his] accusers.” (Id. at ¶ 52). Plaintiff argues that, if he “had been able to make use of those documents for examination of the witnesses during trial, the witnesses' answers when faced with previous false fact patterns would have colored the outcome of the trial differently.” (Id.). In other words, Plaintiff asserts that, if he had access to the documents at trial, he would not have been convicted. (See id.).

         Plaintiff attempted to obtain the documents initially from the Wooster, Ohio Police Department and the North Royalton, Ohio Police Department. After those Departments denied Plaintiff's requests, he filed petitions for writs of mandamus to compel access. Plaintiff also sought post-conviction relief in the state trial court. As explained below, all of these efforts were unsuccessful. Hence, Plaintiff now seeks relief from this Court.

         1.Mandamus Action Against the Wooster, Ohio Police Department

         The Supreme Court of Ohio described Plaintiff's efforts to obtain the documents from the Wooster, Ohio Police Department as follows:

In December 2004, Russell requested that the Wooster, Ohio Police Department provide him with copies of the following records: (1) any incident reports and statements made by Sarah Payden, Wendy Russell, and any others involved in an incident on February 12-14, 1995, (2) a full transcript of a taped recording made by an Officer Quicii of a telephone conversation between Sarah Payden and Robert Russell, (3) any statements made by Robert Hoffa and the employees of Friendly Ice Cream on the above dates relating to Sarah Payden, and (4) any and all records pursuant to an incident at Wooster High School in which Sarah Payden was involved in a fight with two other female students. Appellee, Wooster Chief of Police Stephen W. Thornton, denied Russell's request based on his belief that he was not required, under R.C. 149.43(B)(4), to provide the requested copies until Russell obtained an order from the court that sentenced him that his request was necessary to support a justiciable claim.
In August 2005, Russell requested that Thornton provide him with copies of (1) any public records and incident and offense reports pertaining to Russell that were maintained in Thornton's files from January 1, 1995, until the present, (2) the record, incident, or offense report for a Robert W. Russell who had allegedly exposed himself in the early 1990s, and (3) offense and incident reports pertaining to Wendy Russell, Robert W. Russell, and Sarah Payden. In his request, Russell stated, “I'm seeking records of a criminal investigation or prosecution, only offense and incident reports and any narratives thereto.” Although the request was not phrased in the way he wanted, it is clear that Russell intended to specify that he ...

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