Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE EX REL. DAVEION PERRY, Relator,
NAILAH K. BYRD, Respondent.
of Mandamus Motion No. 533110 Order No. 534092
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.
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.
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
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.
Law and Analysis
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.
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