Richard v. Ohio Parole Bd.

[Cite as Richard v. Ohio Parole Bd., 2023-Ohio-3237.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DONALD RICHARD : JUDGES:

:

: Hon. W. Scott Gwin, P.J.

Plaintiff-Appellant : Hon. William B. Hoffman, J.

: Hon. Patricia A. Delaney, J.

-vs- :

: Case No. 23CA19

:

OHIO PAROLE BOARD :

:

:

Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court

of Common Pleas, Case No. 21CV474N

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 12, 2023

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

DONALD RICHARD, PRO SE OHIO PAROLE BOARD

A197-168 c/o Lisa Hoying, Chair

Richland Correctional Institution 4545 Fisher Road, Suite D

1001 Olivesburg Rd. Columbus, OH 43228

Mansfield, OH 44905

Richland County, Case No. 23CA19 2

Delaney, J.

{¶1} Appellant Donald Richard appeals from the March 20, 2023 Order

Dismissing Case of the Richland County Court of Common Pleas. Appellee Ohio Parole

Board did not appear.

FACTS AND PROCEDURAL HISTORY

{¶2} Some of the following relevant facts are drawn from our decision in Richard

v. Ohio Parole Bd., 5th Dist. Richland No. 2022 CA 0020, 2022-Ohio-2762 [Richard I],

which arose from the same trial-court case number.

{¶3} On September 30, 2021, appellant filed a complaint for declaratory

judgment seeking a declaration by the trial court that appellee denied appellant

meaningful consideration for parole and used the Ohio Administrative Code improperly.

{¶4} On October 4, 2021, appellant attempted service of process on appellee at

the Richland Correctional Institution. However, appellee is located in Franklin County and

not at the Richland Correctional Institution.

{¶5} On November 19, 2021, after receiving no response from appellee,

appellant filed a Motion for Default Judgment.

{¶6} On January 25, 2022, the trial court issued a judgment entry denying

appellant's Motion for Default Judgment, taking judicial notice that appellee was never

served in this matter and found the allegations are barred by res judicata.

{¶7} Appellant appealed from the trial court’s judgment entry denying default

judgment in Richard I, in which we found the trial court did not err in the motion for default

judgment because appellant did not complete service of process on appellee. Id., at ¶

15. However, we agreed with appellant that the trial court erred in dismissing the case

Richland County, Case No. 23CA19 3

on the grounds of res judicata. Id., ¶ 22. The matter was therefore remanded to the trial

court.

{¶8} Upon remand, the trial court issued a judgment entry on October 26, 2022,

overruling several pending motions by appellant and concluding by scheduling an Initial

Scheduling Conference on February 2, 2023, “to allow [appellant] to render service on

[appellee] consistent with the Court of Appeals opinion.”

{¶9} Appellant filed a number of motions in response, including a motion to

participate in the scheduling conference and alleging judicial misconduct.

{¶10} On February 14, 2023, the trial court journalized a Judgment Entry granting

appellant’s motion to participate in the scheduling hearing by telephone. In the entry, the

trial court also gave appellant notice of 1) its intent to dismiss the complaint in 30 days if

appellant failed to show cause why appellee was not properly served pursuant to Civ.R.

4(E), and 2) its intent to dismiss the case within 30 days for failure to state a claim.

{¶11} On March 23, 2023, the trial court filed an Order Dismissing Case with

prejudice.

{¶12} Appellant now appeals from the trial court’s order of dismissal.

{¶13} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶14} “THE TRIAL COURT INTENTIONALLY COMMITTED PREJUDICIAL

ERROR, IN VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS OF LAW

UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION BY

PERFORMING WITH BIAS WHEN DENYING THE APPELLANT’S DUE PROCESS

Richland County, Case No. 23CA19 4

RIGHT TO A FAIR, IMPARTIAL, FIT, HONEST, AND TRUSTWORTHY TRIBUNAL

WHEN IT DELIBERATELY OBSTRUCTED JUSTICE, SOLELY TO ‘SHIELD’ AND

‘PROTECT’ JUDICIAL ORGANIZED CRIMES, R.C. 2901.23, COMMITTED BY THE

OHIO PAROLE BOARD, FROM BEING EXPOSURE WHEN THE TRIAL COURT

MAKES UP LIES ABOUT THE ‘SERVICE OF PROCESS’ SUCCESSFULLY

PROCURED BY THE CLERK OF COURTS, AND CONDUCTS AN INDEPENDENT

INVESTIGATION, IN VIOLATION OF OHIO CODE OF JUDICIAL CONDUCT 2.9(C) TO

MAKE UP CONCOCTED AND FABRICATED FACTS TO FRAUDULENTLY TAKE

JUDICIAL NOTICE, SO THE TRIAL COURT CAN IGNORE AND/OR FAIL TO

PROPERLY RULE ON APPELLANT’S MOTION FOR ‘DEFAULT JUDGMENT’ FILED

19-NOV-21.” (Sic throughout.)

ANALYSIS

{¶15} In his sole assignment of error, appellant argues the trial court erred in

dismissing his complaint. We disagree.

App.R. 16

{¶16} Appellant’s brief is confusing because his underlying premise that the trial

court erred in dismissing the case is obfuscated by unsupported allegations of judicial

misconduct, criminal conduct by the parole board, facts from other cases, etc. By

“unsupported” we mean nonsensical but more importantly for our purposes, not contained

in the record of the pending case. It is all but impossible to discern a coherent argument.

{¶17} Appellant's brief therefore does not comply with App.R. 16(A)(7) in that it

fails to present an argument containing appellant’s contentions relating to his assignment

of error and the reasons in support of the contentions, with citations to the authorities,

Richland County, Case No. 23CA19 5

statutes, and parts of the record on which appellant relies. Instead, he repeats irrelevant

factual allegations rather than support his argument with reference to the record, leaving

us to fashion his legal argument for him. His arguments that are loosely based on the

record contain blatant factual inaccuracies. For example, on page 18 of his appellate brief,

appellant claims the trial court “falsely” found he attempted to serve appellee at the

Richland Correctional Institution. Appellant’s complaint and every subsequent certificate

of service signed by him in fact purports to serve appellee at the Richland Correctional

Institution.

{¶18} We have held that a brief is noncompliant if it does not satisfy the mandatory

requirements of App.R. 16. Zanesville v. Robinson, 5th Dist. Muskingum App. No. 09-CA-

39, 2010-Ohio-4843, ¶ 26; Benick v. Morrow County Health District, 5th Dist. Morrow No.

2019CA0007, 2020-Ohio-4443, ¶ 11. A failure to comply with App.R. 16 would permit this

Court to dismiss the instant appeal. State v. Darby, 5th Dist. Richland No. 2019 CA 0013,

2019-Ohio-2186, ¶¶ 21-24.

{¶19} We understand that appellant filed this appeal pro se, but “like members of

the bar, pro se litigants are required to comply with rules of practice and procedure.” Oyler

v. Oyler, 5th Dist. Stark No. 2014CA00015, 2014-Ohio-3468, 2014 WL 3907024, ¶ 19,

quoting Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶

9. See also, State v. Hall, 11th Dist. Trumbull No. 2007-T-0022, 2008-Ohio-2128, ¶ 11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. Cuyahoga No. 86154, 2005-Ohio-6494, ¶ 4 (internal quotation omitted). “Fairness

and justice are best served when a court disposes of a case on the merits.” DeHart v.

Richland County, Case No. 23CA19 6

Aetna Life Ins. Co., 69 Ohio St.2d 189, 193, 431 N.E.2d 644 (1982). We caution, however,

that “[i]f an argument exists that can support [an] assignment of error, it is not this court's

duty to root it out.” State v. Colston, 5th Dist. Muskingum No. CT2019-0076, 2020-Ohio-

3879, 2020 WL 4345269, ¶ 58, quoting Thomas v. Harmon, 4th Dist. Lawrence No.

08CA17, 2009-Ohio-3299, at ¶14, internal citation omitted. “It is not the function of this

court to construct a foundation for [an appellant's] claims; failure to comply with the rules

governing practice in the appellate courts is a tactic which is ordinarily fatal.” Catanzarite

v. Boswell, 9th Dist. Summit No. 24184, 2009-Ohio-1211, ¶ 16, quoting Kremer v. Cox,

114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist.1996).

{¶20} In the interest of justice but within the bounds of the Rules of Appellate

Procedure, therefore, we will address appellant’s underlying argument that the trial court

erred in sua sponte dismissing his complaint.

Allegations of judicial misconduct

{¶21} Appellant makes numerous allegations of judicial misconduct throughout

his filings in the trial court and in his appellate brief, attempting to assign the alleged

misconduct as error. Regarding any [unsubstantiated, unsupported] contention that the

trial judge violated the Code of Judicial Conduct, acted in a manner demeaning to the

judiciary, or engaged in unethical misconduct, the instant appeal is not the proper venue

for such complaints. Szerlip v. Szerlip, 5th Dist. Knox No. 01CA16, unreported, 2002 WL

1270849, *3 (May 20, 2022). As we noted in Szerlip vs. Spencer, 5th Dist. Knox No.

01CA30, unreported, 2002 WL 433442 (March 14, 2002), any allegation of judicial

misconduct is not cognizable on appeal but is a matter properly within the jurisdiction of

the Disciplinary Counsel.

Richland County, Case No. 23CA19 7

Dismissal for failure to properly serve appellee

{¶22} Appellant argues, in part, that the trial court erred in sua sponte dismissing

his complaint for failure to properly serve appellee. We disagree. We note appellant

purportedly served his voluminous filings upon appellee in “Mansfield, Ohio” despite

repeated warnings and corrections from the trial court that the correct address was in

Franklin County.

{¶23} Appellant attempted service upon the Ohio Parole Board at “Richland

Correctional Institution, 1001 Olivesburg Road, Mansfield, Ohio 44905.” Summons, Oct.

4, 2021. Appellant’s certificate of service upon his motion for default judgment of

November 19, 2021, cites the same address. In its Judgment Entry of January 25, 2022,

the trial court noted appellant failed to effectuate service because the Ohio Parole Board

is located in Franklin County, not at the Richland Correctional Institution. We found

appellant failed to serve appellee. Richard v. Ohio Parole Bd., 5th Dist. Richland No.

2022 CA 0020, 2022-Ohio-2762, ¶ 15. After our remand order, the trial court noted, e.g,

“the Court resets this matter for an Initial Scheduling Conference on February 2, 2023 at

10:00 am to allow [appellant] to render service on [appellee] consistent with the Court of

Appeals opinion.” Judgment Entry, Oct. 26, 2022. In its Judgment Entry of February 14,

2023, the trial court again advised appellant the complaint would be dismissed if appellant

failed to demonstrate good cause why service was not made within 30 days.

{¶24} Upon review, we find that appellant's failure to serve appellee with the

complaint (and subsequent filings) was an obvious violation of the Civil Rules. Hughley

v. Southeastern Correctional Inst., 5th Dist. Fairfield No. 10CA43, 2010-Ohio-5497, ¶ 32.

{¶25} Civ.R. 5(A) requires:

Richland County, Case No. 23CA19 8

(A) Service: when required

Except as otherwise provided in these rules, every order

required by its terms to be served, every pleading subsequent to the

original complaint unless the court otherwise orders because of

numerous defendants, every paper relating to discovery required to

be served upon a party unless the court otherwise orders, every

written motion other than one which may be heard ex parte, and

every written notice, appearance, demand, offer of judgment, and

similar paper shall be served upon each of the parties. Service is not

required on parties in default for failure to appear except that

pleadings asserting new or additional claims for relief or for additional

damages against them shall be served upon them in the manner

provided for service of summons in Civ.R. 4 through Civ.R. 4.6.

{¶26} As to the method of service, Civ.R. 5(B) states:

Whenever under these rules service is required or permitted

to be made upon a party who is represented by an attorney of record

in the proceedings, the service shall be made upon the attorney

unless service upon the party is ordered by the court. Service upon

the attorney or party shall be made by delivering a copy to the person

to be served, transmitting it to the office of the person to be served

by facsimile transmission, mailing it to the last known address of the

person to be served or, if no address is known, leaving it with the

clerk of the court. The served copy shall be accompanied by a

Richland County, Case No. 23CA19 9

completed copy of the proof of service required by division (D) of this

rule. “Delivering a copy” within this rule means: handing it to the

attorney or party; leaving it at the office of the person to be served

with a clerk or other person in charge; if there is no one in charge,

leaving it in a conspicuous place in the office; or, if the office is closed

or the person to be served has no office, leaving it at the dwelling

house or usual place of abode of the person to be served with some

person of suitable age and discretion then residing in the dwelling

house or usual place of abode. Service by mail is complete upon

mailing. Service by facsimile transmission is complete upon

transmission.

{¶27} In the instant case, the trial court sua sponte dismissed appellant's

complaint, in part, pursuant to Civ.R.41(B), which provides that a trial court may dismiss

an action when a party fails to comply with the Civil Rules. A dismissal is authorized by

Civ.R. 41(B)(1), which provides that the trial court, sua sponte or upon a motion of the

defendant, may dismiss an action or claim where the plaintiff fails to prosecute or fails to

comply with the civil rules or any court order. Such a dismissal may be accomplished

only after the trial court provides notice to plaintiff's counsel of its intention to dismiss the

case. Civ.R. 41(B)(1) requires courts to give prior notice of intent to dismiss in order to

provide a non-complying party a final chance to obey. Hughley v. Southeastern

Correctional Inst., 5th Dist. Fairfield No. 10CA43, 2010-Ohio-5497, ¶ 40, citing Quonset

Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 48, 684 N.E.2d 319 (1997); Rankin v. Willow

Park Convalescent Home, 99 Ohio App.3d 110, 112, 649 N.E.2d 1320 (1994).

Richland County, Case No. 23CA19 10

{¶28} In the instant case, the trial court dismissed the case in part for appellant’s

failure to serve appellee after repeated notice to appellant of the pending dismissal. In

Richard I we also noted the lack of service. Id. at ¶ 15. Upon remand the trial court

again repeatedly warned appellant not to “serve” appellee at the Richland Correctional

Institution. Appellant failed to effectuate service or offer any explanation for his failure to

do so. The trial court did not err in dismissing the case on that basis.

Dismissal for failure to state a claim

{¶29} To the extent that appellant argues the trial court erred in dismissing his

complaint for failure to state a claim, our standard of review on a Civil Rule 12(B)(6)

dismissal is de novo and we conduct an independent review of the trial court's decision

without any deference to the trial court's determination. See Huntsman v. State, 5th Dist.

Stark No. 2016CA00206, 2017–Ohio–2622, 2017 WL 1710432, ¶ 20; Deutsche Bank

Natl. Trust Co. v. Mallonn, 2018-Ohio-1363, 110 N.E.3d 765, ¶ 21 (5th Dist.). Based on

that standard of review and in the interest of fairness and justice under the circumstances

of this case, we engage in an independent review of the motions to dismiss to determine

if the trial court erred in granting the motions.

{¶30} A dismissal for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey

County Bd. of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). Under a de

novo analysis, we must accept all factual allegations of the complaint as true, and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber, 57

Ohio St.3d 56, 565 N.E.2d 584 (1991). To dismiss a complaint pursuant to Civil Rule

12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of facts in support

Richland County, Case No. 23CA19 11

of the claim that would entitle plaintiff to relief. York v. Ohio State Highway Patrol, 60 Ohio

St.3d 143, 573 N.E.2d 1063 (1991).

{¶31} We discern the basis of appellant’s complaint against appellee to be that he

did not receive a half-time review in 2005 and has subsequently been denied timely

evaluations. Brief 14-15.

{¶32} First, R.C. 2969.25(A) and (C) provide procedural requirements for inmates

commencing a civil action or appeal against a government entity or employee. See State

ex rel. Foster v. Foley, 2022-Ohio-3168, ¶ 10, State ex rel. Swanson v. Ohio Dept. of

Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, 128 N.E.3d 193, ¶ 6. Compliance

with the requirements of R.C. 2969.25(A) and (C) is mandatory, and failure to comply

warrants dismissal. Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859, 951 N.E.2d 389,

¶ 1. It is not evident to us that appellant has complied with these requirements and we

decline to make his argument for him.

{¶33} Second, “[a] prisoner has no constitutional or statutory right to parole.” State

ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, ¶ 19, 24

N.E.3d 1132, citing State ex rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81 Ohio

St.3d 267, 268, 690 N.E.2d 887 (1998). See State ex rel. Miller v. Leonard, 88 Ohio St.3d

46, 47, 723 N.E.2d 114 (2000) (“There is no constitutional or inherent right to be released

before the expiration of a valid sentence.”). Because no such right exists, an incarcerated

individual who has been denied parole has not been deprived of a liberty interest where

state law makes the parole decision discretionary. Id. Pursuant to R.C. 2967.03, the

parole decision is discretionary. Id. See State ex rel. Bailey v. Ohio Parole Bd., 10th Dist.

No. 15AP-887, 2016 WL 7494343, 2016-Ohio-8264, ¶ 7, citing Festi v. Ohio Adult Parole

Richland County, Case No. 23CA19 12

Auth., 10th Dist. No. 04AP-1372, 2005 WL 1670796, 2005-Ohio-3622, ¶ 14 (stating that

the Ohio Adult Parole Authority generally “has wide-ranging discretion in parole matters”).

{¶34} We are unable to discern from appellant’s allegations whether he was

denied timely parole hearings or that the parole board failed to take timely action. It is

also not clear to us that a declaratory judgment action in the Richland County Court of

Common Pleas is the appropriate procedural vehicle for appellant to compel action by the

parole authority.

{¶35} Construing the material allegations in the complaint and all reasonable

inferences to be drawn by the same in favor of appellant as true, we find the trial court

did not err in dismissing the complaint.

CONCLUSION

{¶36} Appellant’s sole assignment of error is overruled and the judgment of the

Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.