Howard v. Mgt. & Training Corp.

[Cite as Howard v. Mgt. & Training Corp., 2022-Ohio-4071.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Jeffery L. Howard, :

Plaintiff-Appellant, : No. 21AP-283

v. (C.P.C. No. 20CV-2847)

:

Management & Training Corp. et al., (REGULAR CALENDAR)

:

Defendants-Appellees.

:

D E C I S I O N

Rendered on November 15, 2022

On brief: Jeffery L. Howard, pro se.

On brief: Mansour Gavin, LPA, Edward O. Patton, and

Michael P. Quinlan, for appellees.

APPEAL from the Franklin County Court of Common Pleas

MENTEL, J.

{¶ 1} Jeffery L. Howard appeals from the judgment of the Franklin County Court

of Common Pleas dismissing the civil action he filed against Management & Training Corp.

("MTC") and its employees. The trial court ruled that the affidavit Mr. Howard had filed

disclosing his litigation history did not conform to the requirements of R.C. 2969.25(A),

which applies when an inmate commences litigation against "a government entity or

employee." MTC is a private, for-profit corporation, not a government entity. The trial

court erred by applying the statute, so we reverse and remand.

{¶ 2} On April 21, 2020, Mr. Howard filed a complaint against MTC and ten of its

employees who worked at the Northern Central Correctional Institution ("NCCI"), the

facility owned and operated by MTC where he was incarcerated. Mr. Howard alleged that

MTC's employees had conspired and retaliated against him by writing false negative

No. 21AP-283 2

conduct reports after he filed complaints. He also alleged that employees had committed

fraud, falsified government documents, and violated his equal protection rights.

Mr. Howard sought a declaratory judgment, injunctive relief, and monetary damages. He

also attached an affidavit disclosing six previous lawsuits he had filed in the last five years,

as R.C. 2969.25(A) requires of an inmate commencing "a civil action or appeal against a

government entity or employee * * * in any state or federal court."

{¶ 3} On June 11, 2020, MTC filed a motion to dismiss for failure to state a claim

or, in the alternative, to transfer venue. MTC pointed out that Mr. Howard had voluntarily

dismissed an identical action filed in the Court of Common Pleas of Marion County.

Additionally, MTC argued that Mr. Howard's "bare bones" and "inadequate" affidavit did

not satisfy R.C. 2969.25(A)'s requirement to provide a "brief description of the nature of

his civil actions." (June 11, 2020 Mot. to Dismiss at 4.) Alternatively, MTC sought a motion

to transfer the case to the Court of Common Pleas of Marion County, Ohio.

{¶ 4} In Mr. Howard's response, he accused the Marion County court of being

"incapable of being fair and impartial towards" him and defended refiling the lawsuit in

Franklin County because its "fairer and impartial" court did not lack jurisdiction over his

claims. (July 2, 2020 Req. to Reply at 2-3.) He also argued that MTC was not a

"government entity" or "employee" under R.C. 2969.25(A) and that his affidavit complied

with the descriptive requirements of the statute.

{¶ 5} The trial court granted the motion to dismiss on May 3, 2021, ruling that

Mr. Howard's affidavit did not comply with R.C. 2969.25(A). The trial court found that

Mr. Howard's affidavit had "failed to list the names of each party to the civil action in any

of the six civil actions he initiated within the last five years." (May 3, 2021 Journal Entry at

2.) The trial court also found that "overly general descriptors such as 'Declaratory

Judgment and Injunctive Relief,' " failed to satisfy the R.C. 2969.25(A)(1) requirement to

provide "[a] brief description of the nature of the civil action or appeal."

{¶ 6} Mr. Howard filed a notice of appeal on June 4, 2021, and asserts the following

assignments of error:

[1.] THE TRIAL COURT COMMITTED ERROR DISMISSING

PLAINTIFF'S-APPELLANT'S CASE BASED ON THE OHIO

REVISED CODE (O.R.C.) 2969.25(A)

No. 21AP-283 3

[2.] THE TRIAL COURT COMMITTED PLAIN ERROR BY

DEFINING A PRIVATE FOR PROFIT CORPORATION AS A

"GOVERNMENT ENTITY" OR "EMPLOYEE" UNDER O.R.C.

2969.25(A)

{¶ 7} According to MTC, Mr. Howard's appeal should be dismissed because he

untimely filed the notice of appeal. MTC argues that under App.R. 4, Mr. Howard had thirty

days from May 3, 2021, the date the clerk entered the dismissal entry on the docket, to file

the notice of appeal. Because he did not file the notice of appeal until June 4, 2021, thirty-

two days later, MTC argues that the notice was untimely and we must dismiss Mr. Howard's

appeal. As this argument challenges our jurisdiction, "we must, as a preliminary matter,

address our subject-matter jurisdiction in this appeal." Oakley v. Ohio State Univ. Wexner

Med. Ctr., 10th Dist. No. 18AP-843, 2019-Ohio-3557, ¶ 9.

{¶ 8} "Jurisdiction in the court of appeals is based upon a timely filing of a notice

of appeal." Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141 Ohio

St.3d 542, 2015-Ohio-241, ¶ 7. "An appeal as of right shall be taken by filing a notice of

appeal with the clerk of the trial court within the time allowed by Rule 4." App.R. 3(A).

Under App.R. 4(A)(1), "a party who wishes to appeal from an order that is final upon its

entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry."

{¶ 9} The procedure for providing "[n]otice of filing" of an entry of judgment is set

forth in Civ.R. 58(B), which states:

When the court signs a judgment, the court shall endorse

thereon a direction to the clerk to serve upon all parties * * *

notice of the judgment and its date of entry upon the journal.

Within three days of entering the judgment upon the journal,

the clerk shall serve the parties in a manner prescribed by

Civ.R. 5(B) and note the service in the appearance docket.

Upon serving the notice and notation of the service in the

appearance docket, the service is complete. The failure of the

clerk to serve notice does not affect the validity of the judgment

or the running of the time for appeal except as provided in

App.R. 4(A).

{¶ 10} In this case, the relevant "manner prescribed by Civ.R. 5(B) " of serving a

judgment on a party referenced in the rule is by "mailing it to the person's last known

address by United States mail, in which event service is complete upon mailing." Civ.R.

No. 21AP-283 4

5(B)(2)(c). The exception to the thirty-day period triggered by "[t]he failure of the clerk to

serve notice" mentioned in Civ.R. 58(B) arises under App.R. 4(A)(3), which tolls the

deadline for filing an appeal: "In a civil case, if the clerk has not completed service of notice

of the judgment within the three-day period prescribed in Civ.R. 58(B), the 30-day periods

referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually

completes service."

{¶ 11} Mr. Howard asserts that he "signed for and received" the May 3, 2021

judgment entry on May 12, 2021, at which time he was "in segregation." (Appellant's Reply

at 6.) He "immediately requested the required forms" to file the appeal from the

institution's librarian, but, because of the librarian's schedule, did not receive them until

"7-9 days later." Id. at 6-7. Nevertheless, he insists, because he placed the notice of appeal

into "staff hands" to be mailed on May 24, 2021, it was "not [his] fault" that the notice of

appeal arrived two days late. Id. at 7-8. Mr. Howard has also attached a number of

documents, including his sworn affidavit, the prison mail log, and the relevant certificates

of services attached to his filings to support his assertions.

{¶ 12} However, there is no " 'actual knowledge' exception to the service

requirement of Civ.R. 58(B) " because the rule "requires that service be made by the clerk

of courts; there is no stated exception." Clermont Cty. Transp. Improvement Dist., 2015-

Ohio-241, ¶ 2, 6. In other words, we are precluded from examining Mr. Howard's affidavit

and accompanying papers to determine whether and when the clerk served him with the

final judgment in this case. "If we open the door to an exception when the parties have

actual knowledge of the judgment, we would be forcing the appellate courts into the murky

area of deciding whether actual knowledge has been established. Appellate courts are not

fact-finders, yet they would be forced into that role" by such an exception. Id. at ¶ 2. Thus,

only the clerk's notation on the docket proves whether a final judgment was served under

Civ.R. 58(B) and whether the thirty-day period for filing an appeal under App.R. 4(A) began

to run. The interplay of these rules implicates "the very foundation for jurisdiction in the

appellate court. It is simply too important to allow for notice in a casual manner. An office

of a clerk of courts exists, if for no other reason, to keep an accurate and easily accessible

record of what has happened in any given case." Id. ¶ 11.

No. 21AP-283 5

{¶ 13} Examining the record created by the clerk, we conclude that the final

judgment was not served on Mr. Howard in accordance with Civ.R. 58(B). The trial court

signed the journal entry granting MTC's motion to dismiss on May 3, 2021, and the clerk

entered the order on the docket the same day with the notation "notice of final appealable

order." On May 5, 2021, the clerk noted "proof of service issued – ordinary mail" upon

Mr. Howard. Under Civ.R. 58(B), "service is complete" if the clerk notes service on the

docket within three days of the entry of judgment. "When the Civil Rules on service are

followed, there is a presumption of proper service." Rogers v. United Presidential Life Ins.

Co., 36 Ohio App.3d 126, 128 (10th Dist.1987). However, on May 28, 2021, the clerk noted

"notice returned – not served" with an accompanying image of the envelope containing the

"final appealable order" returned by the U.S. Postal Service. This "positive statement of the

record that no service was made," which MTC's briefing fails to acknowledge, rebuts the

presumption of proper service of the final judgment. Moore v. Starks, 1 Ohio St. 369, 373

(1853). Notwithstanding Mr. Howard's affidavit and protestation that he received the

judgment on May 12, 2021, we are bound by Clermont County Transp. Improvement Dist.

to rely only upon the clerk's notation, and therefore conclude that the clerk did not complete

service under Civ.R. 58(B).

{¶ 14} Failure to complete service of a final judgment under Civ.R. 58(B) tolls the

thirty-day period for filing a notice of appeal. "In a civil case, if the clerk has not completed

service of notice of the judgment within the three-day period prescribed in Civ.R. 58(B), the

30-day periods referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the

clerk actually completes service." App.R. 4(A)(3). Mr. Howard's June 4, 2021 notice of

appeal was not untimely because the clerk never "completed service" as required to

commence the thirty-day period for filing a notice of appeal under App.R. 4(A)(1). E.g.,

White v. Cent. Ohio Gaming Ventures, LLC, 10th Dist. No. 18AP-780, 2019-Ohio-1078, ¶ 12

("Because the clerk did not complete service as required by Civ.R. 58(B), [the appellant's]

time to appeal never expired under App.R. 4(A)."). Accordingly, MTC's argument that we

lack jurisdiction to hear Mr. Howard's appeal is without merit.

{¶ 15} Having concluded that we have jurisdiction to hear Mr. Howard's appeal, we

turn to his assignments of error challenging the dismissal of his case for failure to comply

with the affidavit requirement of R.C. 2969.25(A). That statute states: "At the time that an

No. 21AP-283 6

inmate commences a civil action or appeal against a government entity or employee, the

inmate shall file with the court an affidavit that contains a description of each civil action

or appeal of a civil action that the inmate has filed in the previous five years in any state or

federal court." R.C. 2969.25(A). The definition of a "civil action or appeal against a

government entity or employee" in R.C. 2969.25(A) is: "A civil action that an inmate

commences against the state, a political subdivision, or an employee of the state or a

political subdivision in a court of common pleas, court of appeals, county court, or

municipal court." R.C. 2969.21(B)(1)(a). The trial court dismissed Mr. Howard's complaint

after MTC moved to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which

relief may be granted, so appellate review of the decision is de novo. State ex rel. Person v.

McCarty, 165 Ohio St.3d 42, 2021-Ohio-1207, ¶ 8, citing Alford v. Collins-McGregor

Operating Co., 152 Ohio St.3d 303, 2018-Ohio-8, ¶ 10.

{¶ 16} Because they present similar arguments premised on the same alleged error,

we consider Mr. Howard's assignments of error and arguments supporting them together.

The trial court erred by dismissing his case under R.C. 2969.25(A), he argues, because it

improperly interpreted the statute's reference to "a government entity or employee" to

include MTC, a for-profit operator of a private prison. (Merit Brief at 3-4.) Mr. Howard

cites to various provisions of the Ohio Revised Code, including the subchapter governing

the operation of private correctional facilities, that differentiate state entities from private

contractors. Id. at 4-6 (citing R.C. 1.59(C), R.C. 1.60, and R.C. 9.06). He believes that we

should follow Anthony v. Lake Erie Corr. Inst., 11th Dist. No. 2005-A-0009, 2006-Ohio-

742, which held that R.C. 2969.25(A) does not apply to an inmate filing suit against

employees of a privately owned prison. Id. at 7. In Mr. Howard's view, the trial court's

reading of the statute is overbroad. Id. at 8.

{¶ 17} In response, MTC argues that R.C. 2969.21, the definition section applicable

to R.C. 2969.25, references the definition of "state" under R.C. 2743.01, which "makes no

distinction between privately or publicly operated and managed institutions." (Appellees'

Brief at 12.) Dismissing the Eleventh District's decision in Anthony as an "unpublished

opinion," MTC cites two Supreme Court of Ohio cases, State ex rel. McGrath v. McDonnell,

126 Ohio St.3d 511, 2010-Ohio-4726, and State ex rel. Howard v. Turner, 156 Ohio St.3d

No. 21AP-283 7

285, 2019-Ohio-759, to rebut Mr. Howard's arguments.1 According to MTC, these cases

stand for the proposition that NCCI, the prison it operates for profit, "is a 'government

entity' within the meaning of R.C. 2969.21(B)(1)(a)," the definition section applicable to

R.C. 2969.25. (Appellees' Brief at 14.) MTC asserts also that McGrath held that the R.C.

2969.21(B)(1)(a) definition was "applicable to the civil action filed by McGrath under R.C.

2969.25 against a privately operated and managed institution" and that Lake Erie

Correctional Institution, the private prison where he was incarcerated, was "a 'government

entity.' " Id.

{¶ 18} In McGrath, an inmate filed a complaint for a writ of mandamus in the Eighth

District Court of Appeals but did not attach an affidavit to the complaint that complied with

the requirements of R.C. 2969.25. 2010-Ohio-4726 at ¶ 2. The Supreme Court of Ohio

affirmed the appellate court's dismissal. Despite the inmate's "claims to the contrary, R.C.

2969.25 applies to his mandamus complaint because he is an inmate, and his mandamus

case is a civil case for purposes of R.C. 2969.21(B)(1)(a), which addresses inmate actions

against government entities." Id. at ¶ 3, citing Fuqua v. Williams, 100 Ohio St.3d 211, 2003-

Ohio-5533, and State ex rel. Hawk v. Athens Cty., 106 Ohio St.3d 183, 2005-Ohio-4383.

{¶ 19} In Howard, the Supreme Court of Ohio held that an inmate's complaint for a

writ of mandamus filed in an appellate court was subject to the affidavit requirement of

R.C. 2969.26(A), a statute that also applies to a civil action "against a government entity or

employee," but one arising from a grievance. 2019-Ohio-759 at ¶ 1, 6. As in this case, Mr.

Howard was the inmate resisting the affidavit requirement. However, the only argument

he raised before the Supreme Court of Ohio at that time was that "the statute's requirements

should not apply to him, because he is unable to pay for copies of the required grievance

decisions since he has no funds in his inmate account." Id. at ¶ 5.

{¶ 20} In neither McGrath nor Howard did the Supreme Court of Ohio address the

question of whether an inmate filing a lawsuit against a privately owned, for-profit

correctional facility was subject to the affidavit requirement of R.C. 2969.25(A). "A

1 The distinction MTC highlights is of little to no significance. Rule 3.4 of the Supreme Court Rules for the

Reporting of Opinions states: "All opinions of the courts of appeals issued after May 1, 2002 may be cited as

legal authority and weighted as deemed appropriate by the courts without regard to whether the opinion was

published or in what form it was published."

No. 21AP-283 8

reported decision, although in a case where the question might have been raised, is entitled

to no consideration whatever as settling, by judicial determination, a question not passed

upon or raised at the time of the adjudication." State ex rel. Gordon v. Rhodes, 158 Ohio

St. 129 (1952), paragraph one of the syllabus. Nowhere in McGrath or Howard does the

Supreme Court of Ohio mention the fact that the defendant correctional institutions were

privately owned, for-profit entities or interpret the statutory requirements in light of that

fact. MTC's interpretation of those cases as controlling "construe[s]" the court's "silence

* * * as settling this issue," in contravention of the syllabus law of Gordon. State v. Payne,

114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 11. Accordingly, neither case controls our

resolution of the issue raised by Mr. Howard.

{¶ 21} The issue is straightforward and resolved by simply reading an unambiguous

statute. "When we consider the meaning of a statute, our first step is always to determine

whether the statute is 'plain and unambiguous.' " Jacobson v. Kaforey, 149 Ohio St.3d 398,

2016-Ohio-8434, ¶ 8, quoting State v. Hurd, 89 Ohio St.3d 616, 618 (2000). "If 'the

language of a statute is plain and unambiguous and conveys a clear and definite meaning

there is no occasion for resorting to rules of statutory interpretation,' because 'an

unambiguous statute is to be applied, not interpreted.' " Id., quoting Sears v. Weimer, 143

Ohio St. 312 (1944), paragraph five of the syllabus. When commencing a civil action

"against a government entity or employee," R.C. 2969.25(A), an inmate must file an

affidavit disclosing prior litigation. The phrase "government entity" is plain and admits of

no ambiguity that would include a for-profit corporation. Further supporting this reading

is the specific definition of the phrase "[a] civil action or appeal against a government entity

or employee” applicable to R.C. 2969.25(A): "A civil action that an inmate commences

against the state, a political subdivision, or an employee of the state or a political

subdivision in a court of common pleas, court of appeals, county court, or municipal court."

R.C. 2969.21(B)(1)(a). MTC is not a government entity, a state, or a political subdivision.

As a consequence, no inmate commencing a civil action against it is subject to the

requirement of R.C. 2969.25(A).

{¶ 22} MTC's reference to the definition of "state" under R.C. 2743.01, arrived

through a chain of references in the Ohio Revised Code, does not support its argument. As

stated, the definition of "[a] civil action or appeal against a government entity or employee"

No. 21AP-283 9

applicable to R.C. 2969.25(A) is set forth in R.C. 2969.21(B)(1)(a): "A civil action that an

inmate commences against the state, a political subdivision, or an employee of the state or

a political subdivision in a court of common pleas, court of appeals, county court, or

municipal court." In the foregoing definition, the word "state" is further defined as having

"the same meaning as in section 2743.01 of the Revised Code." R.C. 2969.21(G). In R.C.

2743.01(A), "state" is defined as: "the state of Ohio, including, but not limited to, the general

assembly, the supreme court, the offices of all elected state officers, and all departments,

boards, offices, commissions, agencies, institutions, and other instrumentalities of the

state," but not "political subdivisions." MTC argues that this definition's reference to

"institutions" includes it because the definition "makes no distinction between privately or

publicly operated and managed institutions." (Appellees' Brief at 12.) Not so. MTC's

reading omits "of the state," the final preposition from the definition. MTC cannot plausibly

be described as an "institution * * * of the state." Contrary to MTC's argument, R.C.

2743.01(A) supports our reading of R.C. 2969.25(A), as the latter statute does not reference

a privately-owned correctional institution when referring to a "government entity."

{¶ 23} As Mr. Howard points out, the Eleventh District Court of Appeals in Anthony

v. Lake Erie Corr. Inst., 11th Dist. No. 2005-A-0009, 2006-Ohio-742, reads the statute as

we do. The court rejected the private prison appellee's "broad reading" of the statute,

reasoning that when the Ohio General Assembly:

has chosen to define the meaning of "government entity," it has

always limited itself to the state of Ohio, or a political

subdivision. For example, R.C. 3723.01(E) defines

"government entity" to mean "the state, a state agency as

defined in section 1.60 of the Revised Code, a political

subdivision, or any entity of local government"; R.C.

5528.51(H) defines "local government entity" to mean "any

county, municipal corporation, township, or transportation

improvement district, or any other local government agency

designated by law"; R.C. 1557.01(I) defines "local government

entities" to mean "any county, municipal [**10] corporation,

township, or metropolitan or township park district, soil and

water conservation district, conservancy district, or joint

recreation district"; and R.C. 3717.01(N) defines "government

entity" to mean "this state, a political subdivision of this state,

another state, or a political subdivision or other local

government body of another state." Had the legislature chosen

No. 21AP-283 10

to depart from its traditional definition of "government entity,"

as reflected in the statutes just cited, it would have done so in

more certain terms. It is not logical to believe that the Ohio

General Assembly intended a different meaning to the term

"government entity" when it inserted the phrase into R.C.

2969.25(A) than when it had done so in every other statute it

enacted that contained the same phrase.

Id. at ¶ 23.

{¶ 24} We acknowledge that the Third District Court of Appeals has recently

disagreed with Anthony and held, based on Howard, that an inmate commencing a civil

action against employees of a privately-owned prison must satisfy R.C. 2969.25(A). Israfil

v. Mgt. & Training Corp., 3d Dist. No. 9-21-31, 2022-Ohio-1270. Conceding that the

inmate's argument that the statute should not apply to its lawsuit against the employees of

NCCI was "not entirely unreasonable," the court nevertheless held that it was "constrained"

by the holding of Howard. Id. at ¶ 7 ("Whatever our opinion of the court of appeals's [sic]

reasoning in Anthony or our own interpretation of R.C. 2969.25, we are constrained by the

precedent of the Supreme Court of Ohio.").

{¶ 25} The reasoning in Israfil is unpersuasive for two reasons. First, as discussed,

the status of the defendant as a private corporation was never mentioned or discussed in

Howard. Because we will not read a controlling interpretation of a statute into "a case

where the question might have been raised" but was not, Howard is "entitled to no

consideration whatever as settling, by judicial determination, a question not passed upon

or raised at the time of [its] adjudication." State ex rel. Gordon v. Rhodes, 158 Ohio St. 129

(1952), paragraph one of the syllabus.

{¶ 26} Second, Israfil contains no independent basis for its holding other than citing

Howard. See Israfil at ¶ 7. Anthony, in comparison, provides an extensive discussion of

the statutory text and other thoroughly reasoned explanations for its holding. See Anthony

at ¶ 19-22 (rejecting the argument that a private prison liable under 42 U.S.C. 1983 for

violating a defendant's constitutional rights when acting under color of state law qualified

as a "government entity for purposes of R.C. 2969.25(A)," noting the "markedly different"

reach of the two statutes) and ¶ 24 (including a private, for-profit entity providing prison

services within the meaning of a "government entity" under R.C. 2969.25(A) was

No. 21AP-283 11

inconsistent with R.C. 9.06(B)(15), in which the Ohio General Assembly "took pains to

distance private prisons from 'government entities' " by requiring them to contractually

disavow any entitlement to sovereign immunity). We find the logic and reasoning of

Anthony far more persuasive than Israfil's cursory application of Howard.

{¶ 27} For the foregoing reasons, Mr. Howard was not subject to the requirements

of R.C. 2969.25(A) when he commenced a civil action against MTC and its employees.

Accordingly, we sustain his two assignments of error, reverse the judgment of the trial court

dismissing his action, and remand this cause to the trial court.

Judgment reversed; cause remanded.

LUPER SCHUSTER, P.J. and DORRIAN, J., concur.

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