State ex rel. Guess v. Clark

2024 Ohio 1075, 240 N.E.3d 370

• Court: Ohio Court of Appeals
• Decided: March 22, 2024
• Docket: L-24-1001
• Status: Published

Opinion

[Cite as State ex rel. Guess v. Clark, 2024-Ohio-1075.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State, ex rel. Bo Guess Court of Appeals No. L-24-1001

Relator

v.

Thomas Clark, et al. DECISION AND JUDGMENT Respondents Decided: March 22, 2024

***** Bo Guess, pro se. *****

OSOWIK, J.

{¶ 1} In this original action, the petitioner, Bo Guess, seeks an “emergency * * *

writ of mandamus to enforce R.C. 149.43” and to compel the respondents, “Thomas

Clark et al,” to provide disciplinary logs of prison staff at the Toledo Correctional

Institute. Because Guess’s petition fails to plead facts that, if true, establish his right to relief and because he failed to comply with the mandatory filing requirements set forth in

R.C. 2969.25, we dismiss the petition.

I. The Petition

{¶ 2} Guess’s petition is 16 pages in length and handwritten. Guess’s handwriting

is so illegible as to render most of the document incomprehensible. Using our best efforts

to discern what Guess is attempting to argue, we offer the following interpretation of

Guess’s petition.

{¶ 3} Guess identifies himself as a “prison-lawyer, activist [and] disabled vet” at

“ToCI” [Toledo Correctional Institute] in Toledo. He identifies respondent, Thomas

Clark, as a “combined, OCM, [illegible] coordinator, human trafficker, gang member,

warden’s asst record’s office.” Guess seeks a writ of mandamus compelling Clark and

other “unknown” respondents to “provide [Guess], and at no cost (indigent) of all ToCI

prison staff names, ranks and disciplinary logs of them since ToCI opened.” Guess

complains that “they refuse” to provide the information and logs, in violation of R.C.

149.43. Guess acknowledges that “partials lists” have already been provided. He claims

that “guards stole them,” which he acknowledges he “can’t prove.”

II. Legal Analysis

{¶ 4} “Mandamus is [an] appropriate remedy to compel compliance with R.C.

149.43, Ohio’s Public Records Act.” State ex rel. Sultaana v. Mansfield Corr. Inst., 172

Ohio St. 3d 438, 2023-Ohio-1177, 224 N.E.3d 1086, ¶ 20, quoting Physicians Commt. for

Responsible Medicine, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; see

2. also R.C. 149.43(C)(1)(b). “In such a case, the requester must prove a clear legal right to

the requested record and a corresponding clear legal duty on the part of the custodian to

provide it, State ex rel. Penland v. Ohio Dept. of Rehab. & Corr., 158 Ohio St.3d 15,

2019-Ohio-4130, 139 N.E.3d 862, ¶ 9, by clear and convincing evidence, State ex rel.

McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246,

976 N.E.2d 877, ¶ 16.” State ex rel. Myers v. Meyers, 169 Ohio St.3d 536, 2022-Ohio-

1915, 207 N.E.3d 579. Unlike other mandamus cases, a relator in a public records

mandamus action “‘need not establish the lack of an adequate remedy in the ordinary

course of the law.’” State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869,

6 N.E.3d 1170, ¶ 6, quoting State ex rel. Data Trace Information Servs., L.L.C. v.

Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶

25.

{¶ 5} “[A petitioner] bears the burden of pleading and proving facts showing that

he requested a public record pursuant to R.C. 149.43(B)(1) and that [the public agency]

did not make the record available to him.” State ex rel. Reese v. Ohio Dep't of Rehab. &

Correction Legal Dep't, 168 Ohio St.3d 647, 2022-Ohio-2105, 200 N.E.3d 1083, ¶ 13,

citing Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-

Ohio-5371, 170 N.E.3d 768, ¶ 26 (“Reese has neither pleaded nor proven that he sent the

December 29, 2017 request to DRC. He is therefore not entitled to relief in mandamus

regarding that request.”); see also State ex rel. Edward Smith Corporation v. Marsh, Slip

Opinion 2024-Ohio-201, ¶ 7, quoting Guess v. Toledo Blade Newspaper Co., 6th Dist.

3. Lucas No. L-97-1276, 1998 WL 65500 (Feb. 6, 1998) (“A complaint may be so

incomprehensible as to fail to state a claim upon which relief may be granted.”). In

Guess v. Toledo Blade Newspaper, the plaintiff sued the newspaper after it cancelled

plaintiff’s subscription and refunded him the cost. We affirmed the dismissal of the

complaint, finding that “[t]he only cognizable cause of action from the facts appellant

alleges is breach of contract. However, that cause requires damages as an essential

element. * * * On its face, appellant’s complaint states that appellee refunded the amount

of the unused subscription. Consequently, appellant alleges no legally recognizable

damages under a breach of contract theory. Therefore, dismissal pursuant to Civ.R.

12(B)(6) is appropriate.” Id.

{¶ 6} Similarly, in this case, the only cognizable facts alleged by Guess in support

of his claim under R.C. 149.42 is that respondents “refuse” to “provide” him with

“disciplinary logs.” However, nowhere within the petition does Guess plead any facts

nor produce any evidence that he (1) requested (2) record(s) that are subject to disclosure

under R.C. 149.43(B)(1). Because there is no evidence that Guess made a request for

identifiable public record(s) under R.C. 149.43(B)(1), he does not state grounds that

would entitle him to a writ of mandamus. Reece; see also State ex rel. Citizens for Env't

Just. v. Campbell, 93 Ohio St. 3d 585, 585, 757 N.E.2d 366 (2001) (“Nor did relator file

an amended complaint with an affidavit covering the necessary elements of its mandamus

claim, i.e., a request for records and a refusal.).

4. {¶ 7} Additionally, Guess’s petition is insufficient because it is not accompanied

by an affidavit describing any civil lawsuits or civil appeals he has filed in state or federal

court in the last five years. R.C. 2969.25(A)(1)-(4). His petition is also subject to

dismissal on these grounds. State ex rel. Kimbo v. Glavas, 97 Ohio St.3d 197, 2002–

Ohio–5808, 777 N.E.2d 257, ¶ 3.

{¶ 8} Finally, R.C. 2969.25(C)(1) requires that an inmate who seeks waiver of the

filing fees in an action file both a waiver and an affidavit of indigence containing a

statement of his balance in his inmate account and a statement of his assets. Guess failed

to meet the requirements of R.C. 2969.25 because he failed to attach a statement of his

inmate account as required by R.C. 2969.25(C). Gooden at ¶ 7.

III. Conclusion

{¶ 9} Guess’s petition does allege sufficient facts showing that he is entitled to a

writ of mandamus. Dismissal of this case is further required for Guess’s failure to

comply with the filing requirements set forth by RC. 2969.25(A) and (C). We therefore

dismiss the petition. The costs of this action are assessed to Guess.

{¶ 10} To the clerk: Manner of Service.

{¶ 11} Serve upon all parties in a manner prescribed by Civ.R. 5(B) notice of the

judgment and its date of entry upon the journal.

Writ denied.

5. State ex rel. Bo Guess v. Thomas Clark, et al. C.A. No. L-24-1001

Thomas J. Osowik, J. _______________________________ JUDGE Myron C. Duhart, J. _______________________________ Charles E. Sulek, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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