United States District Court, S.D. Ohio, Eastern Division
ROBERT W. RUSSELL, Plaintiff,
STEPHEN W. THORNTON, et al., Defendants.
A. SARGUS, JR. CHIEF JUDGE
REPORT AND RECOMMENDATION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
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).
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.
MOTION FOR LEAVE TO PROCEED IN FORMA
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.).
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.
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
prisoner's name and this case number must be included on
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
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.
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
Action Against the Wooster, Ohio Police Department
Supreme Court of Ohio described Plaintiff's efforts to
obtain the documents from the Wooster, Ohio Police Department
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 ...