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State ex rel. Perry v. Byrd

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 8, 2020

STATE EX REL. DAVEION PERRY, Relator,
v.
NAILAH K. BYRD, Respondent.

          Writ of Mandamus Motion No. 533110 Order No. 534092

         JUDGMENT: WRIT DENIED

          Daveion Perry, pro se.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski, Assistant Prosecuting Attorney, for respondent.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, J.

         {¶1} Relator, Daveion Perry, seeks a writ of mandamus directing respondent, the Cuyahoga County Clerk of Courts Nailah K. Byrd, to release records Perry alleges that he requested under Ohio's Public Records Act. Because four of the six requests do not fall under Ohio's Public Records Act, respondent's motion for summary judgment is granted in part as to those requests. Respondent has provided the records responsive to Perry's other requests, rendering the action moot as to them. Respondent's motion for summary judgment is granted as to Perry's request for statutory damages. Finally, respondent's request to declare Perry a vexatious litigator is denied. Writ denied.

         I. Procedural and Factual History

         {¶ 2} Perry filed a complaint for a writ of mandamus on September 13, 2019. There, he alleged the following facts. On August 7, 2019, Perry, an incarcerated individual, initiated certified mail delivery of a public records request to respondent. The tracking information for the certified mailing Perry alleged to have sent does not show that the mailing was received by respondent or anyone else. A printout from the United States Postal Service website attached to Perry's complaint indicates that the status of the certified mailing is "not available."

         {¶ 3} Perry's complaint further alleges that he sought six items in his public records request: (1) The clerk of courts records retention policy, (2) the clerk of courts public records policy, (3) an unspecified grand jury subpoena from State v. Perry, Cuyahoga C.P. CR-16-610816-A, (4) forensic evidence of latent fingerprints, (5) the gunshot residue kits that were used on Perry, (6) and the Miranda waiver form that purportedly was generated when police questioned Perry. Perry asserts that he has not received any response to his public records request from respondent.

         {¶ 4} On September 17, 2019, respondent filed a motion to dismiss and to declare Perry a vexatious litigator. This court, sua sponte, converted the motion to dismiss to a motion for summary judgment and gave the parties the opportunity to provide supplemental briefing and to submit additional evidence. On October 24, 2019, respondent filed a motion for summary judgment. Perry filed a brief in opposition, and respondent filed a reply brief. The matter is now ripe for adjudication.

         II. Law and Analysis

         A. Standards

         {¶5} A writ of mandamus is an appropriate means to enforce an individual's right to access public records under Ohio's Public Records Act. State ex rel Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 5, citing R.C. 149.43(C)(1)(b). Entitlement to relief in mandamus requires that Perry show by clear and convincing evidence that he has a clear legal right to the requested records and respondent has a clear legal duty to provide the records. Id.

         {¶ 6} The matter is before the court on respondent's motion for summary judgment. "'Summary judgment is appropriate when an examination of all relevant materials filed in the action reveals that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."'" State ex rel. Parker v. Russo, Slip Opinion No. 2019-Ohio-4420, ¶ 5, quoting Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C). This standard also requires that we construe the evidence most strongly in favor of the nonmoving party. Easton Telecom Servs., L.L.C. v. Woodmere, 8th Dist. ...


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