The opinion
[Cite as State ex rel. Cartwright v. Ohio Adult Parole Bd., 2021-Ohio-923.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Dana Cartwright, :
Relator, :
v. : No. 20AP-62
Ohio Adult Parole Board, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on March 23, 2021
On brief: Dana Cartwright, pro se.
On brief: Dave Yost, Attorney General, and George Horvath,
for respondent.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, P.J.
{¶ 1} In this original action, relator, Dana Cartwright, requests a writ of mandamus
ordering respondent, Ohio Adult Parole Revocation Hearing Committee, a subdivision of
Ohio Department of Rehabilitation and Correction ("respondent"), to vacate the results of
a previous parole revocation hearing that resulted in revocation of parole for relator and to
grant him a new revocation. In the alternative, relator requests a writ ordering respondent
to place relator back on parole under the conditions governing his status prior to
revocation. Respondent filed a motion to dismiss for: (1) failure to state a claim, and
(2) failure to comply with inmate procedural filing requirements under R.C. 2969.25(C).
{¶ 2} Relator made two claims for relief in his complaint in mandamus. First,
relator claims respondent's decision to revoke parole is void and an abuse of discretion
No. 20AP-62 2
where relator was never given adequate notice of the alleged violation against him. Second,
relator claims respondent's decision to revoke parole was based on insufficient evidence.
{¶ 3} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate finds relator's inmate
account statement is compliant with R.C. 2969.25(C)(1);1 however, the magistrate finds
relator has the ability to pay filing fees in this matter.2 Nevertheless, the magistrate
recommends this court grant respondent's motion to dismiss on the grounds of failure to
state a claim because he has no clear legal right to a new parole hearing or reinstatement of
his prior terms of parole.
I. Relator's Objection
{¶ 4} Relator timely filed an objection to the magistrate's recommendation to
dismiss. Relator objects to the magistrate's conclusion that the complaint for mandamus
fails to state a claim upon which relief may be granted. In support, relator argues: (1) the
standard for reviewing motions to dismiss for failure to state a claim is governed by Civ.R.
12(C); his motion must be considered on the pleadings alone; and inferences should be
construed in his favor that he was not given adequate notice of the allegation of parole
violation against him; (2) respondent was required to cite to a specific state statute alleged
to be violated; the general allegation that he violated "Parole Rule # 1" to wit: I agree to obey
all local, state, and federal laws was insufficient under the due process clause (Relator's
brief at 3.); and the lack of notice was structural error; (3) respondent failed to present a
preponderance of the evidence that relator engaged in "sexual conduct" as that term is
defined pursuant to R.C. 2901.03(A); and (4) respondent interfered with relator's right to
counsel at his revocation hearing by failing to provide adequate notice since counsel "could
not know" which specific local, state, or federal law relator was alleged to have violated
(Relator's brief at 6.); the conduct tried at the revocation hearing, that relator touched a
nurse's leg, was more akin to a violation under R.C. 2907.06, sexual imposition, which
relator claims requires more than the testimony of the alleged victim pursuant to R.C.
1 Respondent did not object to this finding.
2 Relator did not object to this finding.
No. 20AP-62 3
2907.06(B) and his counsel was prevented from using that as an affirmative defense since
the notice of alleged violation was insufficient.
{¶ 5} Finally, relator argues respondent's judgment is void and he must be restored
to his former parole status.
{¶ 6} We begin by noting the document attached to relator's complaint titled
"Notice of Findings of Release Violation Hearing," in section II titled "[s]ummary of
evidence used in arriving at findings," states that with regard to Count 2, the allegation
involving S.O., a nurse, "the APA failed to provide sufficient corroboration in the Violation
Report, Documentary Evidence submitted into the Record, and Verbal Testimony
presented during the Hearing for violation of Ohio Parole Rule #1 (count 2)." According to
the documentation submitted by relator with his complaint, he was only found to have
violated Ohio Parole Rule #1 as alleged in Count 1. Therefore, it is not necessary for us to
consider relator's objections with regard to Count 2 and the allegation that he attempted to
engage in sexual contact with S.O. without her consent. We need only focus our analysis of
appellant's objections on Count 1, the allegation that he attempted to engage in sexual
contact with a nurse, T.G., without her consent.
{¶ 7} First, relator argues the magistrate erred in applying the wrong standard for
Civ.R. 12(C). Relator is mistaken regarding which Civil Rule applies here. Relator argues
that Civ.R. 12(C) applies. However, the magistrate granted the motion to dismiss pursuant
to Civ.R. 12(B)(6). Nevertheless, the standards applied in Civ.R. 12(C) and (12)(B)(6), in
relevant part, are similar. In State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65
Ohio St.3d 545, 548 (1992), the court outlined the general criteria for granting a motion to
dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6) in a mandamus complaint:
A motion to dismiss for failure to state a claim upon which relief
can be granted is procedural and tests the sufficiency of the
complaint. Assn. for the Defense of the Washington Local
School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117, 537 N.E.2d
1292, 1293. Thus, the movant may not rely on allegations or
evidence outside the complaint; otherwise, the motion must be
treated, with reasonable notice, as a Civ.R. 56 motion for
summary judgment. Civ.R. 12(B); State ex rel. Natalina Food
Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio St.3d 98, 99,
562 N.E.2d 1383, 1384. Even then, only certain forms of
evidence may be submitted to support the motion. Civ.R.
56(C).
No. 20AP-62 4
The standard for reviewing the sufficiency of a mandamus
complaint was stated in State ex rel. Alford v. Willoughby
(1979), 58 Ohio St.2d 221, 223-224, 12 O.O.3d 229, 230, 390
N.E.2d 782, 785:
"In construing a complaint upon a motion to dismiss for failure
to state a claim, the material allegations of the complaint are
taken as admitted. Jenkins v. McKeithen (1969), 395 U.S. 411,
421 [89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416]. [All reasonable
inferences must also be drawn in favor of the nonmoving party.
Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192,
532 N.E.2d 753, 756; Byrd v. Faber (1991), 57 Ohio St.3d 56,
60, 565 N.E.2d 584, 589.] Then, before the court may dismiss
the complaint, '* * * it must appear beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling
him to recovery. * * *' O'Brien v. University Community
Tenants Union (1975), 42 Ohio St.2d 242 [71 O.O.2d 223, 327
N.E.2d 753].
"In order to establish a claim in mandamus, it must be proved
that there exists a clear legal duty to act on the part of a public
officer or agency, and that the relator has no plain and adequate
remedy in the ordinary course of the law. State, ex rel. Pressley,
v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141, 228
N.E.2d 631], paragraph one of the syllabus. A complaint in
mandamus states a claim if it alleges the existence of the legal
duty and the want of an adequate remedy at law with sufficient
particularity so that the respondent is given reasonable notice
of the claim asserted."
Accord State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77,
80-81, 537 N.E.2d 641, 644-645, and State ex rel. Baran v.
Fuerst (1990), 55 Ohio St.3d 94, 96-97, 563 N.E.2d 713, 715-
716.
{¶ 8} Generally, under Civ.R. 12(B)(6), a respondent is not permitted to support its
motion to dismiss for failure to state a claim by relying on anything outside the complaint.
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 96
(1995). Nevertheless, the Supreme Court of Ohio has stated that material incorporated into
a complaint may be considered as part of the complaint for purposes of determining a Civ.R.
12(B)(6) motion to dismiss. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn.,
72 Ohio St.3d 106, 109 (1995); State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio
No. 20AP-62 5
St.3d 247, 249 (1997). Furthermore, recently, in State ex rel. Washington v. D'Apolito, 156
Ohio St.3d 77, 2018-Ohio-5135, ¶ 10, the Supreme Court also stated "[a] court is not
required to accept allegations in a complaint as true when they are contradicted by
documents attached to the complaint." The Supreme Court further cautioned courts to
refrain, at the motion to dismiss stage, from weighing the facts, making inferences against
the non-moving party and rejecting a relator's allegations as false. Id. at ¶ 11. Finally, the
court stated that a Civ.R. 12(B)(6) dismissal based on the merits is unusual and should be
granted with caution.
{¶ 9} In this case, the magistrate cited to the correct Civ.R. 12(B)(6) standard of
review. (See Appended Mag.'s Decision at ¶ 44.) Accordingly, we reject relator's first
argument.
{¶ 10} Before analyzing the second and fourth arguments, we observe that in
granting the motion pursuant to Civ.R. 12(B)(6), the magistrate relied not only on the
complaint but also on documents relator attached to his complaint. The magistrate found
the documents attached to relator's complaint included a notice, bearing his signature
acknowledging receipt, which clearly described the violative conduct and the parole rule
alleged to have been violated. The magistrate found the due process rules which apply to
parole hearings were met and that it is apparent from these documents that relator was not
deprived of notice in violation of his due process rights. (See Appended Mag.'s Decision at
¶ 50.)
{¶ 11} One of the documents attached to relator's complaint states:
You are alleged to have committed the following violation(s):
09/2017 Conditions RULE 1
RULE 1. I will obey federal, state and local laws and ordinances,
including those related to illegal drug use and registration with
authorities. I will have no contact with the victim of my current
offense(s).
TO WIT: On or about 6/6/2019, in the vicinity of Dayton, OH
you engaged or attempted to engage in sexual contact with
[T.G.] without her consent.
Admit: ________
No. 20AP-62 6
Admit with Mitigation: ____DC___ [the initials DC are
handwritten in this space]
Deny:_________
You are alleged to have committed the following violation(s):
09/2017 Conditions RULE 1
RULE 1. I will obey federal, state and local laws and ordinances,
including those related to illegal drug use and registration with
authorities. I will have no contact with the victim of my current
offense(s).
TO WIT: On or about 6/6/2019, in the vicinity of Dayton, OH
you engaged or attempted to engage in sexual contact with
[S.O.] without her consent.
Admit: _________
Admit with Mitigation: __________
Deny: ____DC___ [the initials DC are handwritten in this
space]
Officer's [sic] Signature: [the signature of Dana Cartwright is
signed in this space] Date: 6-14-19
Offender's [sic] Signature: [an illegible signature is signed in
this space] Number: A-299981 Date: 6-14-19
I certify that this notice was hand-delivered to the above on:
Date: 6-14-19 [handwritten in this space]
Time 1:54 pm [handwritten in this space]
Supervisor's Signature:
Jason Perez [the signature of Jason Perez is signed in this
space] Date: 6/14/2019
(Emphasis added.)
{¶ 12} In his second and fourth arguments, relator addresses his first claim for relief
in his complaint for mandamus. Underlying these arguments is the assertion that he was
not able to defend against the alleged violation in Count 1 because the notice did not cite to
the specific Ohio Revised Code section which he allegedly violated.
No. 20AP-62 7
{¶ 13} In his complaint, relator points to United States v. Havier, 155 F.3d 1090
(1998), in support of his argument that the notice due to the relator must include the
specific state statute alleged to have been violated. In Havier, the federal Ninth Circuit
Court of Appeals interpreted whether a notice provided pursuant to Fed.R.Crim.P. 32.1,
applicable to supervised release revocation, was sufficient to satisfy minimal due process
requirements for parole revocation as set forth in Morrissey v. Brewer, 408 U.S. 471 (1972).
The notice alleged a "[v]iolation of standard condition # 1: 'You shall not commit another
federal, state, or local crime during the term of supervision.' " Havier at 1092. The notice
provided certain other details, which the state described as: (1) date, (2) location, and
(3) individuals involved in the alleged violation. The notice also referred to two sections of
the sentencing guidelines. Finally, the notice stated that "Havier could have been charged
with a 'Crime of Violence.' " Id. The court noted, however, that during the revocation
hearing, the district court judge and counsel appeared to speculate about which Arizona
state law violations could have or should have been alleged in the revocation petition. The
court found that the notice provided to Havier was not sufficient and that Havier "could not
be expected to predict the statute [with which Havier could have been charged]. Nor should
he be expected to defend against each and every possible charge." Id. at 1093. The court
distinguished the notice before it from the notice provided in United States v. Tham, 884
F.2d 1262 (1989), which the court had found to be sufficient notice. The Havier court
observed that in Tham, the notice provided information regarding date, location, and
individuals involved. The Havier court noted the notice in Tham was different from that
in Havier in one important respect: "[t]he charge in that case was itself evident from the
condition of probation that the defendant was alleged to have violated – associating with a
convicted felon. Combined with this statement of condition violated, the information about
the date, location, and individuals involved was sufficient for the defendant to identify the
specific offense." Havier at 1093. The court concluded:
Granted, the Supreme Court has emphasized that criminals are
not due the "full panoply of rights" in a revocation hearing,
unlike in a criminal trial. Morrissey, 408 U.S. at 480. But to the
extent that the Supreme Court has established written notice of
a defendant's violation as a minimum requirement of due
process, such notice should be effective. Thus, when a
revocation petition alleges the commission of a new crime and
the offense being charged is not evident from the condition of
No. 20AP-62 8
probation being violated, a defendant is entitled to receive
notice of the specific statute he is charged with violating.
Id. The court also noted in a footnote "[a]s a way to avoid close questions regarding
adequate notice in the future, we encourage the Government generally to provide a
defendant with notice of the specific statute violated." Id. at fn. 3.
{¶ 14} Respondent did not file a memorandum contra relator's objection and did
not address Havier in its motion to dismiss. However, in its motion to dismiss respondent
points to Barnett v. Ohio Adult Parole Auth., 81 Ohio St.3d 385, 387 (1998). In Barnett,
the Supreme Court stated "[p]arole and probation may be revoked even though criminal
charges based on the same facts are dismissed, the defendant is acquitted, or the conviction
is overturned, unless all factual support for the revocation is removed." Id., citing Zanders
v. Anderson, 74 Ohio St.3d 269, 272 (1996); Flenoy v. Ohio Adult Parole Auth., 56 Ohio
St.3d 131, 132 (1990). Respondent informed the court, in its motion to dismiss, that no
criminal charges had been filed at the time of the violative conduct, but argues,
nevertheless, that factual support for the revocation was not removed just because criminal
charges were not filed against relator. Respondent argues the fact that no charges were
filed "does not prove that no laws were disobeyed." (Emphasis sic.) (Resp.'s Mot. to Dismiss
at 6.)
{¶ 15} That respondent may find a violation of parole, even where no charges are
filed, does not obviate the requirement of adequate notice of the violation. Ohio Adm.Code
5120:1-1-18(A) states:
(5) With respect to the hearing, the releasee has the following
rights:
(a)The right to receive prior to the hearing a written notice
setting forth the date, time and location of the hearing and the
specific violations the releasee is alleged to have committed.
(Emphasis added.)
{¶ 16} This court is not aware of any precedent addressing what constitutes
"specific" in describing the violations a releasee is alleged to have committed pursuant to
Ohio Adm.Code 5120:1-1-18(A)(5). Our research has revealed no such precedent, and
neither relator nor respondent points us to relevant precedent. Precedent from the federal
Ninth Circuit Court of Appeals does not bind this court. Nevertheless, in the absence of any
No. 20AP-62 9
relevant Ohio state precedent, the reasoning set forth in Havier may, in certain cases, be
persuasive to the extent it informs what is necessary to determine if written notice of a
defendant's alleged parole violation was adequate, as required pursuant to Morrissey. See
Rocky River v. Taylor, 8th Dist. No. 75621 (Feb. 17, 2000) ("However, written notice of the
claimed violation generally applies when a revocation petition alleges the commission of a
new crime and the offense being charged is not evident from the condition of probation
being violated." See Havier at 1093.). This is not to say, however, that the precedent set in
Havier applies in every case where the standard alleged to have been violated is the
requirement to obey federal, state, and local laws and ordinances. Rather, in such
circumstance, a determination as to whether notice was adequate must be made on a case-
by-case basis.
{¶ 17} In the case before us, as noted above, the notice provided with regard to
Count 1, alleged disobeyance with federal, state, and local laws and ordinances, "TO WIT:
On or about 6/6/2019, in the vicinity of Dayton, OH you engaged or attempted to engage
in sexual contact with [T.G.] without her consent." Thus, provided with this notice was
information regarding: (1) date, (2) location, and (3) individuals involved. But also
provided was a reference to "sexual contact" without consent.
{¶ 18} " 'Sexual contact' means any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person." R.C.
2907.01(B). Sexual contact is prohibited under the circumstances outlined in R.C. 2907.05
("gross sexual imposition" a felony of the third or fourth degree) and R.C. 2907.06 ("sexual
imposition" a misdemeanor of the third or first degree).
{¶ 19} Neither R.C. 2907.05 nor 2907.06 was referenced in the notice provided to
relator. Nevertheless, the term "sexual contact" was referenced in the notice.
Notwithstanding, there does appear to be some confusion on both the part of relator and
respondent as they both used the term "sexual conduct"3 rather than "sexual contact" in
3 " 'Sexual conduct' means vaginal intercourse between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight,
of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." R.C. 2907.01(A).
No. 20AP-62 10
their advocacy before this court. In the motion to dismiss, respondent states relator
"ignores [respondent's] documentation that indicates on at least one occasion he attempted
to engage in unwanted sexual conduct." (Emphasis added.) (Resp.'s Mot. to Dismiss at
14.) In his third and fourth arguments in support of his objection to the magistrate's
decision, relator refers to "sexual conduct" rather than "sexual contact." Even the
magistrate uses the term "sexual conduct" in his decision by stating "[i]n addition, the
parole board may consider sexual conduct when it revokes parole. Ohio Adm.Code 5120:1-
1-18(A)(3) and (4)." (Appended Mag.'s Decision at ¶ 51.)
{¶ 20} It is not necessary for us to determine whether the notice was sufficient and
met the due process requirements set forth in Morrissey because upon receiving notice of
the alleged violation in Count 1, relator admitted the same. Contrary to the magistrate's
finding of fact eight, as noted above, with regard to Count 1, one of the documents attached
to relator's complaint indicates that when he acknowledged receipt of the notice, relator
"admit[ted] with mitigation" that he "engaged or attempted to engage in sexual contact with
[T.G.] without her consent." However, consistent with the magistrate's finding of fact eight,
with regard to Count 2, relator denied he "engaged or attempted to engage in sexual contact
with [S.O.] without her consent." Accordingly, on the facts of this case, we reject relator's
second and fourth arguments.
{¶ 21} In his third argument, relator addresses his second claim for relief in his
complaint for mandamus. He argues respondent failed to present a preponderance of the
evidence that relator violated the terms of his parole.4 In essence, relator argues the
magistrate erred in dismissing his complaint in mandamus pursuant to Civ.R. 12(B)(6).
{¶ 22} In addressing relator's second and fourth arguments related to inadequate
notice, we observed above that in acknowledging receipt of the notice of violation, relator
"admit[ted] with mitigation" to Count 1. However, in addressing relator's third argument
related to insufficient evidence, we must also observe that one of the documents attached
to relator's complaint, titled "Notice of Findings of Release Violation Hearing," in section II
titled "[s]ummary of evidence used in arriving at findings:" states that "[y]ou denied
violating Ohio Parole Rule #1 (count 1)." Because the magistrate recommended dismissing
4 Here, relator argues respondent failed to present a preponderance of the evidence that relator engaged in
"sexual conduct."
No. 20AP-62 11
relator's complaint in mandamus, we do not have before us the administrative record from
the parole hearing. Applying the Civ.R. 12(B)(6) standard, we must take the material
allegations in the complaint as admitted. The only relevant statement in the complaint,
with regard to Count 1, that we could take as admitted is the statement "[r]elator touched a
female nurse's leg." (Compl. at 2.) Relator also states, "touching a female's leg has never
been deemed a crime in the State of Ohio, there simple [sic] was insufficient evidence upon
which Respondents could find probable cause to believe that Relator violated any local,
state or federal law." (Compl. at 6.) Taking as admitted that relator touched a female's leg
alone, without more from the record, neither we nor the magistrate could find that sexual
contact was established nor that gross sexual imposition or sexual imposition was
established, even pursuant to the preponderance of the evidence standard. Therefore,
construing the complaint as we must, we cannot find it appears beyond doubt that relator
can prove no set of facts entitling him to recovery on the second claim in relator's original
action that revocation of parole was based on insufficient evidence. Therefore, we do not
adopt the magistrate's recommendation to dismiss the complaint at this early stage.
{¶ 23} Accordingly, we sustain relator's objection to the magistrate's decision.
{¶ 24} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objection and arguments, we sustain relator's
objection as explained herein. We modify the magistrate's decision, including the findings
of fact and conclusions of law contained therein, consistent with our decision. Accordingly,
we vacate the magistrate's dismissal of this action pursuant to Civ.R. 12(B)(6) and remand
this action to the magistrate for further proceedings consistent with law and this decision.
Objection sustained;
dismissal vacated; action remanded to magistrate.
LUPER SCHUSTER and HESS, JJ., concur.
HESS, J., of the Fourth Appellate District, sitting by
assignment in the Tenth Appellate District.
No. 20AP-62 12
LUPER SCHUSTER, J., concurring.
{¶ 25} I agree with the majority's decision to deny respondent's Civ.R. 12(B)(6)
motion to dismiss. However, because I would reach that outcome for additional reasons
than those expressed by the majority, I write separately.
{¶ 26} As to relator's argument regarding adequate notice, the majority discusses
potential considerations that may factor into whether notice was adequate pursuant to Ohio
Adm.Code 5120:1-1-18(A)(5). Ultimately, however, the majority concludes it is not
necessary to determine whether relator received adequate notice of a specific violation
because it was undisputed that relator admitted with mitigation the conduct described in
Count 1 of the alleged violations and denied the conduct described in Count 2 of the alleged
violations. Though I would agree relator received adequate notice of the pending
revocation hearing, I would find that it is premature to determine whether relator received
adequate notice of the specific violations he is alleged to have committed. It is simply
unclear from the documents in the record whether relator received adequate notice of a
specific violation as contemplated by Ohio Adm.Code 5120:1-1-18(A)(5). Therefore, I
would deny respondent's Civ.R. 12(B)(6) motion as it relates to adequate notice.
{¶ 27} Nonetheless, I agree with the majority's conclusion that, construing the
material allegations in the complaint as admitted, it does not appear beyond doubt that
relator can prove no set of facts demonstrating that the revocation of his parole was based
on insufficient evidence. Based on the partial documentation relator filed in conjunction
with the complaint, it would be premature to conclude that respondent is entitled to
dismissal on this claim. Thus, I would sustain relator's objection to the magistrate's
decision both as it relates to adequate notice and as it relates to insufficient evidence of a
parole violation, and I would deny respondent's Civ.R. 12(B)(6) motion on those grounds.
For these reasons, I concur separately.
No. 20AP-62 13
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Dana Cartwright, :
Relator, :
v. : No. 20AP-62
Ohio Adult Parole Board, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on July 24, 2020
Dana Cartwright, pro se.
Dave Yost, Attorney General, and George Horvath, for
respondent.
IN MANDAMUS
ON RESPONDENT'S MOTION TO DISMISS
{¶ 28} Relator, Dana Cartwright, filed this original action seeking a writ of
mandamus ordering respondent, Ohio Adult Parole Board, to vacate the results of a
previous parole revocation hearing that resulted in revocation of parole for relator and
grant him another parole revocation hearing. In the alternative, relator requests a writ
ordering respondent to place relator back on parole under the conditions governing his
status prior to revocation. The matter is before the magistrate on respondent's motion to
No. 20AP-62 14
dismiss for failure to state a claim and failure to comply with inmate procedural filing
requirements under R.C. 2969.25(A) and (C).
Findings of Facts:
{¶ 29} 1. Relator filed his complaint in mandamus with this court on January 31,
2020.
{¶ 30} 2. Relator is an inmate currently incarcerated at the London Correctional
Institution in London, Ohio.
{¶ 31} 3. Relator's complaint avers that he was convicted in 1994 of murder after a
jury trial in Montgomery county. He received a 15-year-to-life sentence with a 3-year
firearm enhancement and an 18-month concurrent sentence for having a weapon while
under disability.
{¶ 32} 4. Relator's complaint further avers that he served 25 years before he was
granted parole on April 25, 2019, but that on June 7, 2019 his parole officer took him into
custody based on reported parole violations.
{¶ 33} 5. The violations were based on incidents in which relator was alleged to have
engaged in non-consensual sexual contact with two female nurses at a hospital.
{¶ 34} 6. Relator's complaint further avers that on July 8, 2019 respondent revoked
relator's parole on the basis that he had failed to abide by one of the standard conditions of
parole ("Ohio Parole Rule 1"), in that he had failed to obey all federal, state, and local laws
and ordinances. The revocation was based on one of the two incidents involving nurses,
and respondent found by a preponderance of the evidence that relator had touched a female
nurse's leg without her consent in the hospital. The appended documents relating to
revocation do not indicate whether criminal charges ensued from relator's actions toward
the nurses, and relator's complaint asserts that no charges resulted.
{¶ 35} 7. Based on the nurses' allegations, relator's supervising parole officer
furnished to relator a notice of violation. A partial copy is attached to relator's complaint,
containing the following description:
On or about 6/6/2019, in the vicinity of Dayton, OH you
engaged or attempted to engage in sexual contact with [a
hospital nurse] without her consent.
(Victim's name given in original and omitted here pursuant to Tenth District practice in
safeguarding the identity of victims of crime.) The notice form provides signature blocks
No. 20AP-62 15
for the offender to acknowledge receipt ("I have read (been read) and understand the
foregoing") and for the supervising parole officer providing the notice. The signatures are
both present in the copy provided by relator, although the signers each mistakenly signed
in the space provided for the other, so that relator's signature appears in a block titled
"Officer's Signature." The form also provides three options for the offender with
corresponding initials blocks: "Admit," "Admit with Mitigation," and "Deny." Relator
initialed the "Deny" block.
{¶ 36} 8. The Adult Parole Authority produced a violation report considered by
respondent. Relator has attached a portion of this report to his complaint, containing the
following information:
V. SUPERVISION ADJUSTMENT:
On 4/25/2019, the offender was released from Pickaway
Correctional Institution, having served prison time since
11/19/1994 for a Murder conviction. The offender was
released on five (5) years Parole. The offender's initial ORAS
Risk level was Low and was supervised at Very High level of
Supervision. The offender has the following Parole Board
Special Conditions: Five years of supervision; very high
supervision level, placement to be approved by the Board; no
change of residence without prior approval of the Board;
substance abuse screening and programming if indicated; and
case plan to be developed will be imposed.
Prior to these alleged violations, the offender was compliant
with supervision. The offender had been paroled roughly six
(6) weeks, before being arrested by this officer on 6/7/19 for
the current violations. No criminal charges were filed in this
case. The offender was served with VSP paperwork on
6/14/19 and is currently being held at CRC awaiting his
hearing scheduled for 7/8/19.
VI. RECOMMENDATION:
Due to the sexual nature of the violations on [the hospital
nurses], the APA is respectfully recommending the offender
have his Parole Supervision revoked and serve a term of
incarceration.
{¶ 37} 9. Respondent conducted a hearing on July 8, 2019 under conditions that
are not described in the documents currently available. Respondent's hearing officer issued
No. 20AP-62 16
a "Notice of Findings of Release Violation Hearing" on July 8, 2019, a partial copy of which
is attached to relator's complaint. This contains the following information:
I. This is to advise you that you were charged with the following
release violation(s) as written in the Notice of Release Violation
Hearing Form.
RULE 1 On or about 6/6/2019, in the vicinity of Dayton, OH
you engaged or attempted to engage in sexual contact with
[hospital nurse 1] without her consent.
RULE 1On or about 6/6/2019, in the vicinity of Dayton, OH
you engaged or attempted to engage in sexual contact with
[hospital nurse 2] without her consent.
II. Summary of evidence used in arriving at findings:
Your Hearing was held on Monday, July 8, 2019.
You denied violating Ohio Parole Rule #1 (count 1) and Ohio
Parole Rule # 1 (count 2). The Ohio Adult Parole Authority
(APA) provided sufficient corroboration in the Violation
Report, Documentary Evidence submitted into the Record,
and Verbal Testimony presented during the Hearing for
violation of Ohio Parole rule # 1 (count 1); the APA failed to
provide sufficient corroboration in the Violation Report,
Documentary Evidence submitted into the Record, and Verbal
Testimony presented during the Hearing for violation of Ohio
Parole rule # 1 (count 2). Based on the Violation Report,
Documentary Evidence submitted into the Record, and Verbal
Testimony presented during the Hearing for violation of Ohio
Parole rule # 1 (count 1), and the record as a whole you are
found Guilty of violating Ohio Parole rule # 1 (count 1) by the
preponderance of the Evidence Standard.
(Emphasis sic.)
{¶ 38} 10. Respondent's hearing officer issued a parole revocation order on July 8,
2019, a partial copy of which is attached to relator's complaint:
Whereas, Dana Cartwright No. A-299981, was serving a
sentence of confinement in a state correctional institution
operated by the Department of Rehabilitation and Correction
and was released on Apr[il] 25, 2019 to the supervision of the
Adult Parole Authority. On Jul[y] 8, 2019, a hearing was held
pursuant to ORC Section 2967.15, at which it was found that
violations of the Conditions of Release had been committed.
No. 20AP-62 17
The Ohio Parole Board has carefully considered all of the
factors and circumstances brought to its attention. NOW,
THEREFORE, by virtue of the authority vested in the Adult
Parole Authority by law, the release is hereby revoked
effective Jul[y] 8, 2019.
The violator is ordered returned as soon as practical to the
appropriate state correctional institution.
The Hearing officer recommends to the Parole Board
Chair/Designee that the violator serve 24 months of the
sentence from the availability date before again becoming
eligible for parole release consideration. This
recommendation is subject to the approval and/or
modification of the Parole Board Chair/Designee. The
violator will receive final notification of the time to be served
before again becoming eligible for release consideration after
return to the state correctional institution. Final notification
will be provided to the violator on the DRC form 3313
Sanction Receipt within 45 days of return.
{¶ 39} 11. Attached to relator's complaint is his affidavit of indigency and his
statement of inmate account and other assets as required by R.C. 2969.25(C). Relator's
complaint does not present separately the statement of prior civil actions required by
R.C. 2969.25(A), but his affidavit of indigency does contain an averment that he has filed
no such actions. Relator has not paid to the clerk of court the filing fees associated with this
action.
Discussion and Conclusions of Law:
{¶ 40} The matter is before the magistrate on respondent's motion to dismiss for
failure to state a claim, which incorporates respondent's argument that the complaint must
be dismissed for failure to comply with statutory filing requirements imposed on inmates
by R.C. 2969.25.
{¶ 41} Regarding relator's potential non-compliance with R.C. 2969.25, respondent
first argues that relator has not complied with R.C. 2969.25(C)(1), which requires that an
inmate litigant file with his complaint a statement setting forth "the balance in the inmate
account of the inmate for each of the preceding six months, as certified by the institutional
cashier." Respondent points out that while relator has filed his account statement with his
January 31, 2020 complaint, it only covers July through December 2019. Respondent
No. 20AP-62 18
argues that the statement is inadequate because it does not cover January 2020, the month
of filing. The magistrate finds to the contrary that a statement covering the six months
preceding the month in which a complaint is filed is compliant with the express language
of R.C. 2969.25(C)(1), and the complaint will not be dismissed for non-compliance.
{¶ 42} Respondent next argues that relator's filings indicate that relator has the
ability to pay filing fees because he receives regular deposits to his inmate account from
outside donors. Relator's affidavit avers to the contrary that he has no funds beyond those
needed for purchase of personal hygiene items from the prison commissary. Review of the
account statement reveals total outside deposits of $1,179 in the last half of 2019, not
including the much smaller sums deposited as state pay for relator's inmate employment.
The account contains numerous large (by inmate standards) commissary purchases during
this period. The magistrate agrees with respondent that relator has the ability to pay filing
fees in this matter, and if the action were to go forward the court would instruct the clerk to
dismiss if filing fees were not forthcoming.
{¶ 43} Turning to the question of whether the complaint states a claim for which
relief can be granted, the magistrate finds that it does not and must be dismissed.
{¶ 44} Proceedings under Civ.R. 12(B)(6) to dismiss a complaint for failure to state
a claim upon which relief can be granted tests the sufficiency of the complaint on its face,
and, in appropriate cases, the effect and sufficiency of any attached documents. State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), citing Assn. for
the Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989).
The court may, therefore, only consider the complaint itself and any written instruments
attached thereto by the plaintiff. Cline v. Mtge. Electronic Registration Sys., 10th Dist. No.
13AP-240, 2013-Ohio-5706, ¶ 9; Brisk v. Draf Indus., 10th Dist. No. 11AP-233, 2012-Ohio-
1311, ¶ 10; Park v. Acierno, 160 Ohio App.3d 117, 2005-Ohio-1332, ¶ 29 (7th Dist.). For the
court to grant the motion to dismiss for failure to state a claim upon which relief can be
granted, it must appear beyond doubt from the complaint that relator can prove no set of
facts entitling him to a writ of mandamus. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio
St.3d 323, 2007-Ohio-3608, ¶ 14; O'Brien v. Univ. Community Tenants Union, Inc., 42
Ohio St.2d 242 (1975), syllabus.
No. 20AP-62 19
{¶ 45} For this court to issue a writ of mandamus as a remedy addressing the actions
of respondent, relator must establish by clear and convincing evidence that he has a clear
legal right to the relief sought, that respondent has a clear legal duty to provide such relief,
and that relator lacks an adequate remedy in the ordinary course of the law. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 46} Respondent has broad discretion to impose conditions of release and
imposed-release sanctions, which are designed to protect the public and promote successful
reintegration into the community. R.C. 2967.03; Ohio Adm.Code 5120:1-1-17(A) and (B);
State ex rel. Henderson v. Oho Dept. of Rehab. & Corr., 81 Ohio St.3d 267, 268 (1998).
This discretion operates in parallel with the principle that there is no constitutional right to
conditional release before the expiration of a valid sentence. State ex rel. Hattie v.
Goldhardt, 69 Ohio St.3d 123, 125 (1994), citing Greenholtz v. Inmates of Nebraska Penal
and Corr. Complex, 442 U.S. 1 (1979); see also Brown v. Ohio Adult Parole Auth., 10th
Dist. No. 09AP-797, 2010-Ohio-872, ¶ 8. Relator does not question here the validity of his
original sentence.
{¶ 47} Relator argues that he was not afforded due process because he did not
receive clear notice of the purported violations that formed the basis for the revocation of
his parole, and also that there was insufficient evidence upon which respondent could have
concluded that relator violated his conditions of parole.
{¶ 48} Parole revocation proceedings and trial proceedings are distinct, and a
parolee is not entitled to the same level of due process protection as a trial defendant. See,
e.g., State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 16 (1991) ("The
Parole Board may admit hearsay."); Barnett v. Ohio Adult Parole Auth., 81 Ohio St.3d 385,
387 (1998) ("Parole and probation may be revoked even though criminal charges based on
the same facts are dismissed, the defendant is acquitted, or the conviction is overturned,
unless all factual support for the revocation is removed."); State ex rel. Wright v. Ohio Adult
Parole Auth., 75 Ohio St.3d 82 (1996), paragraph two of the syllabus ("Evidence obtained
through an unreasonable or unlawful search and seizure is generally admissible in
probation and/or parole revocation proceedings."); Wilson v. State, 101 Ohio App.3d 487,
491 (1995) (no Eighth Amendment right to bail pending a parole revocation hearing);
Wilkins v. Wilkinson, 157 Ohio App.3d 209, 2004-Ohio-2530 (10th Dist.)
No. 20AP-62 20
{¶ 49} Although a parolee contesting revocation does not have the same due process
rights as does a trial defendant, the United States Supreme Court has established a
minimum due process threshold for such proceedings. In Morrissey v. Brewer, 408 U.S.
471 (1972), the United States Supreme Court held that a parolee is entitled to certain due
process protections at a parole revocation hearing. Id. at 488-490. These include written
notice of the claimed violations of parole, disclosure to the parolee of evidence against him,
an opportunity to be heard in person before a neutral and detached hearing body, the right
to present witnesses and documentary evidence, the right to confront and cross-examine
adverse witnesses under most conditions, and in conclusion a written statement by the
factfinder relating the evidence relied on and reasons for revoking parole. Wilkins at ¶ 14,
citing Morrisey.
{¶ 50} With respect to the purported lack of notice, relator has attached to his
complaint a copy of the formal notice apprising of the identified violations, i.e., that he had
failed to obey all federal, state, and local laws and ordinances, and the conduct that
constituted that violation. That notice bears his signature acknowledging receipt. While
relator asserts that respondent owed him notice of the specific federal, state, and local laws
and ordinances with which he failed to comply, the looser due process rules governing
revocation hearings differentiate this from the strict rules governing the framing of
indictments. The violative conduct is clearly described, as is the parole rule in question.
Considering the complaint and attachments, as the court may under Civ.R. 12(B)(6), it is
apparent that relator was not deprived of notice in violation of his due process rights and
the complaint does not on its face support a claim in mandamus.
{¶ 51} With respect to the weight of the evidence, the rules of the evidence do not
apply in parole revocation hearings. Coulverson, supra; State v. McDargh, 2d Dist. No.
2015-CA-27, 2016-Ohio-1132. The complete record of proceedings is not included with
relator's complaint, but the partial documents furnished are, of themselves, sufficient to
indicate that respondent did consider the credibility of witnesses and relied on that
evidence to revoke parole under the preponderance of the evidence standard. See e.g., State
ex rel. Jackson v. Wilkinson, 10th Dist. Franklin No. 94APD12-1789, 1995 Ohio App. LEXIS
2577 (June 20, 1995). In addition, the parole board may consider sexual conduct when it
revokes parole. Ohio Adm.Code 5120:1-1-18(A)(3) and (4).
No. 20AP-62 21
{¶ 52} In sum, when considering the complaint and attached documents, relator has
failed to state a claim in mandamus because he has no clear legal right to a new parole
hearing or reinstatement of his prior terms of parole. Because relator's complaint does not
on its face establish a clear right to parole or a new parole hearing or a duty by respondent
to grant a new hearing or reinstate parole, the magistrate grants respondent's motion to
dismiss and thereby denies the writ of mandamus.
/S/ MAGISTRATE
MARTIN L. DAVIS
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).