[Cite as State ex rel. Stith v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-7867.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Harold Stith, : 

 Relator, : 

v. : 

 No. 15AP-1079 

Ohio [Department] of Rehabilitation & : 

Correction, Director Gary Mohr, (REGULAR CALENDAR) 

Ohio Adult Parole Authority, : 

Ohio Adult Parole Board, Chair, 

and Operation Support Center, : 

 Respondents. : 

 

D E C I S I O N 

Rendered on November 22, 2016 

 

Harold Stith, pro se. 

Michael DeWine, Attorney General, and B. Alexander 

Kennedy, for respondents. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

SADLER, J. 

{¶ 1} Relator, Harold Stith, brings this original action seeking a writ of 

mandamus ordering respondent Ohio Department of Rehabilitation and Corrections 

("DRC") to grant him "another parole hearing at which he is given 'meaningful 

consideration' of his positive rehabilitative conduct and programming." (Compl. at 7.) 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, we referred this matter to a magistrate who rendered a decision, which is 

appended hereto. The magistrate found that in July 1995, relator was sentenced to 22 
No. 15AP-1079 2 

years in prison. On November 2, 2010, appellant had his first parole hearing before 

DRC's Ohio Adult Parole Authority ("Parole Board"). The Parole Board denied parole and 

continued appellant's next parole hearing to March 21, 2013, 29 months later. As a result 

of the March 21, 2013 hearing, the Parole Board denied parole and continued appellant's 

next parole hearing for 59 months, 30 months longer than the prior continuance. 

{¶ 3} In his complaint, relator alleges that the Parole Board abused its discretion 

by failing to provide meaningful consideration of his parole eligibility during the 

March 21, 2013 hearing. Specifically, relator claims that the Parole Board failed to give 

proper consideration to his "additional program participation/completions and positive 

institutional behavior." (Compl. at 6.) The magistrate specifically addressed relator's 

argument and rejected it. Accordingly, the magistrate recommended that we grant DRC's 

motion to dismiss relator's petition. 

{¶ 4} Relator has filed the following objections to the magistrate's decision: 

1). Magistrate has mis-characterized Relator's claim and 

Argument. 

2). Magistrates' Decision does not apply analytical/ethical 

jurisprudence required in the evaluation and determination of 

Relator's claims and issues. 

3). Magistrates' denial of Relator's motion for joinder was 

flawed and contrary to the rules of Civil Procedure. 

4). Magistrates' assessment/determination that Relator has 

an [alternative] adequate remedy at law through the pursuit of 

an action under U.S. 1983 is flawed and not legally sound. 

(Sic passim.) 

A. First and Second Objections 

{¶ 5} Because relator's first and second objections raise the same argument, we 

will consider them together. In relator's first and second objections, relator claims that 

the magistrate erred by failing to specifically address his contention that DRC abused its 

discretion by continuing his third parole hearing for 59 months. Relator argues that 

because the Parole Board indicated that relator had either participated in or completed 
No. 15AP-1079 3 

additional programs and had demonstrated positive institutional behavior, the Parole 

Board abused its discretion by continuing his next hearing for 59 months. We disagree. 

{¶ 6} Although the magistrate did not expressly address the length of the 

continuance, the magistrate did conclude that the Parole Board decision reflects adequate 

consideration of relator's participation/completion of additional programs and his 

positive institutional behavior even though the Parole Board decision does specifically list 

the programs in which he has participated. Thus, the magistrate concluded that the 

Parole Board did not abuse its discretion in denying parole. We agree with the 

magistrate's conclusion. 

{¶ 7} Relator now argues that the Parole Board abused its discretion when it 

continued his parole hearing for 59 months after having noted relator's participation/ 

completion of additional programs and his positive institutional behavior. Relator, 

however, has cited no authority requiring the Parole Board to grant him a shorter 

continuance. Ohio Adm.Code 5120:1-1-10, applicable to initial and continued Parole 

Board hearing dates, provides, in relevant part, as follows: 

(A) The initial hearing for each inmate serving an 

indeterminate sentence shall be held on or about the date 

when the prisoner first becomes eligible for parole pursuant to 

rule 5120:1-1-03 of the Administrative Code. 

(B) In any case in which parole is denied at a inmate's 

regularly constituted parole hearing, the parole board shall: 

* * * 

(2) Set the time for a subsequent hearing, which shall not be 

more than ten years after the date of the hearing. 

(Emphasis added.) 

{¶ 8} Because a 59-month continuance is well within the guidelines set forth in 

the Ohio Administrative Code and because we have agreed with the magistrate's 

conclusion that the Parole Board gave adequate consideration to relator's 

participation/completion of additional programs and his positive institutional behavior, 

we overrule relator's first and second objections. 
No. 15AP-1079 4 

B. Third Objection 

{¶ 9} In his third objection, relator argues that the magistrate erred by denying 

his motion to join the "Ohio Adult Parole Authority" and the "Ohio Adult Parole 

Authority, Chair" as parties to this action. The magistrate expressly considered and 

rejected the joinder argument raised in relator's third objection. We agree with the 

magistrate and for the reasons set forth in the magistrate's decision, we overrule relator's 

third objection. 

C. Fourth Objection 

{¶ 10} In relator's fourth objection, relator takes exception to the magistrate's 

determination that relator has an adequate remedy at law in the form of a civil action 

against DRC pursuant to 42 U.S.C. 1983 and the decision of the Sixth Circuit Court of 

Appeals in Dotson v. Wilkinson, 329 F.3d 463 (6th Cir.2003). In State ex rel. Watson v. 

Ohio Adult Parole Auth., 10th Dist. No. 03AP-262, 2003-Ohio-6931, this court made the 

following observations about the Dotson case: 

In Dotson, * * * an inmate appealed the trial court's dismissal 

of his action under 42 U.S.C. § 1983, and the sole issue on 

appeal was whether the trial court erred in holding that the 

inmate's challenge to the application of the parole eligibility 

guidelines was cognizable under Section 1983. The court did 

not reach the question of whether the guidelines had been 

lawfully or unlawfully applied. The court held only that the 

inmate's suit was cognizable under Section 1983, and it 

reversed and remanded for further proceedings. 

Id. at ¶ 22. 

{¶ 11} Here, the magistrate found that "relator does not challenge respondents' 

application of the Ohio Administrative Code provisions which pertain to parole 

eligibility." (Mag.'s Decision at ¶ 32.) Relator does not dispute this finding. Given the 

fact that relator's complaint does not challenge the application of the Ohio Administrative 

Code which pertains to parole eligibility, relator's claim in this case differs from the 42 

U.S.C. 1983 claim recognized in Dotson. Consequently, we sustain relator's fourth 

objection. 

{¶ 12} Nevertheless, because we have adopted the magistrate's conclusion that the 

facts alleged in relator's complaint fail to show that he has a clear legal right to the 
No. 15AP-1079 5 

requested relief or that the Parole Board has a clear legal duty to either grant him a new 

parole hearing or advance the date of his third parole hearing, relator cannot establish his 

entitlement to a writ of mandamus as a matter of law. 

{¶ 13} Having conducted an independent review of the record in this matter, we 

find that the magistrate has determined the pertinent facts and properly applied the 

relevant law with the single exception noted herein. Accordingly, we adopt the 

magistrate's decision as our own, including the findings of fact and conclusions of law as 

modified herein. For the reasons set forth in the magistrate's decision and those 

expressed herein, relator's first, second, and third objections are overruled, and relator's 

fourth objection is sustained. We hereby modify the magistrate's decision to reflect that 

relator does not have an adequate remedy at law, but we adopt the remainder of the 

magistrate's conclusions of law and the recommendation. 

Petition for writ of mandamus dismissed.

BROWN and KLATT, JJ., concur. 

________________ 
No. 15AP-1079 6 

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Harold Stith, : 

 Relator, : 

v. : No. 15AP-1079 

Ohio [Department] of : (REGULAR CALENDAR) 

Rehabilitation & Correction 

Director Gary Mohr, : 

Ohio Adult Parole Authority, 

Ohio Adult Parole Board, Chair, : 

and Operation Support Center, 

 : 

 Respondents. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on March 16, 2016 

 

Harold Stith, pro se. 

 

Michael DeWine, Attorney General, and B. Alexander 

Kennedy, for respondents. 

 

IN MANDAMUS 

ON RESPONDENTS' MOTION TO DISMISS 

{¶ 14} Relator, Harold Stith, has filed this original action requesting that this 

court issue a writ of mandamus ordering respondents to grant him an additional parole 

hearing. 

Findings of Fact: 

{¶ 15} 1. Relator is an inmate currently incarcerated at Pickaway Correctional 

Institution. 
No. 15AP-1079 7 

{¶ 16} 2. On November 30, 2015, relator filed this complaint for a writ of 

mandamus alleging that he had not been provided meaningful consideration at his 

parole hearing on March 21, 2013. 

{¶ 17} 3. Relator attached to his complaint two parole board decisions, one from 

November 12, 2010, and the parole board decision at issue here from March 21, 2013. 

{¶ 18} 4. Relator appears to acknowledge that he received a meaningful review 

in 2010 noting that the board specifically indicated that he participated in the OASIS 

program. In that 2010 decision, the board provided the following rationale for not 

granting relator parole at that time: 

I/M confronted the V who was with 5 of his friends, in the 

parking lot of the V's apartment. Victim and I/M did not 

know each other. An argument ensued, then a physical fight 

and I/M went for a gun in his vehicle. The V was shot 2 

times. The witnesses (V's friends) then beat the I/M who was 

there when police arrived. I/M also had a drug abuse charge 

for possession of cocaine. I/M admits he was running the 

streets at the time and selling drugs. I/M has had a lot of 

programming and is in the OASIS program. Took 

responsibility for the crime. Release at this time would not 

be in the interest of justice. 

(Emphasis added.) 

{¶ 19} 5. Relator asserts that the board's rationale for denying him parole 

in 2013 lacked evidence of the meaningful consideration he received in 2010. The 

board's decision denying him parole provides: 

Inmate Stith is currently serving his 2nd prison number 

which occurred while on parole. Inmate Stith is noted as 

moderate risk to re-offend. He has taken some relevant 

programs and showed some positive offender 

change and motivation. However, he has an extensive 

history of criminal offenses, including violence, and not 

being successful on supervision. Inmate Stith's case is 

aggravated by the case-specific factors of violence. The 

aggravating factors in this case lead the Central Office Board 

Review to conclude that release would demean the 

seriousness of the offenses and not further the interest of 

justice. After weighing relevant factors, the Board does not 

consider the inmate suitable for release at this time and 

assesses a five year continuance. 
No. 15AP-1079 8 

(Emphasis added.) 

{¶ 20} 6. In 2013, the board noted that relator had "taken some relevant 

programs and showed some positive offender change and motivation," but failed to 

specifically list any programs he had completed. 

{¶ 21} 7. On December 30, 2015, respondents filed a motion to dismiss arguing 

that relator cannot demonstrate entitlement to a writ of mandamus because he has 

other plain and adequate remedies available at law, he does not have a clear legal right 

to the relief requested, and respondents do not have a clear legal duty to provide the 

relief requested. 

{¶ 22} 8. On January 11, 2016, relator requested an extension of time to reply to 

respondents' motion to dismiss and to file a motion for summary judgment. 

{¶ 23} 9. On January 19, 2016, the magistrate put on an order granting relator an 

extension of time until February 12, 2016. 

{¶ 24} 10. On January 20, 2016, relator filed a request for joinder asking to join 

the Ohio Adult Parole Authority and the Ohio Adult Parole Board Chair as respondents 

in this action. Those parties had been listed in his original complaint; however, they had 

not been formally served. 

{¶ 25} 11. On January 25, 2016, respondents filed a response to relator's motion 

for joinder asserting that joinder was not necessary here where respondents had plainly 

demonstrated in their motion to dismiss that relator had no right to the relief prayed 

for, that there are no respondents who have a legal duty to perform the requested acts, 

and that relator had a plain and adequate remedy at law. 

{¶ 26} 12. On February 4, 2016, relator filed a response to respondents' motion 

to dismiss and a motion for summary judgment to which he attached a memo dated 

March 31, 2010 directed to all parole eligible inmates from C. Mausser, parole board 

chair, advising them that, effective April 1, 2010, the Ohio Parole Board would not be 

using the Ohio Parole Board Guidelines Manual, but would instead give every inmate 

meaningful consideration and exercise its discretionary release and authority by using 

the Ohio Statutory and Administrative Code provisions. Relator also attached a letter 

dated October 22, 2012, addressed to an unidentified inmate regarding a letter that 

inmate sent concerning the implementation of new parole board guidelines and advising 
No. 15AP-1079 9 

that unknown inmate that the parole board would no longer be using a guidelines 

system, but would instead be giving every parole eligible inmate meaningful 

consideration at their hearing. 

{¶ 27} 13. On February 12, 2016, respondents filed two motions. The first 

motion was a reply to relator's memorandum contra to respondents' motion to dismiss 

and the second was a motion to stay the response date to relator's motion for summary 

judgment. 

{¶ 28} 14. The matter is currently before the magistrate on motions. 

Conclusions of Law: 

{¶ 29} For the reasons that follow, it is this magistrate's decision that this court 

should grant respondents' motion and dismiss relator's complaint. 

{¶ 30} In considering the motion to dismiss, the magistrate treats all factual 

allegations of the complaint as if proven and makes all reasonable inferences in favor of 

relator. See Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). The magistrate 

treats relator's documents as additional allegations of the complaint and accepts them 

as such. 

{¶ 31} The Supreme Court of Ohio has set forth three requirements which must 

be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal 

right to the relief prayed for; (2) that respondent is under a clear legal duty to perform 

the act requested; and (3) that relator has no plain and adequate remedy in the ordinary 

course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). A writ 

cannot issue to control the respondents' exercise of discretion, but it can be issued to 

compel a public officer to engage in the exercise of discretion when there is a clear legal 

duty to do so. State ex rel. Martin v. Corrigan, 25 Ohio St.3d 29 (1986). 

{¶ 32} In the present case, relator does not challenge respondents' application of 

the Ohio Administrative Code provisions which pertain to parole eligibility. Relator's 

focus is on what he perceives to be respondents' failure to consider his participation 

and/or completion of certain programs which reflect on his positive change. The only 

basis upon which this argument is founded is the fact that, in 2010, the board had 

specifically noted that he was participating in the OASIS program, but did not list any 

specific programs in 2013. 
No. 15AP-1079 10 

{¶ 33} The magistrate finds that there is no significant difference between the 

rationale the board provided relator in 2010, and the rationale the board provided 

relator in 2013. Specifically, as noted in the findings of fact, in 2010 the board noted 

that relator "has had a lot of programming and is in the OASIS program." In 2013, the 

board noted relator "has taken some relevant programs and showed some positive 

offender change and motivation." 

{¶ 34} It is apparent that, when the board considered relator for parole in 2010, 

the board noted that relator had participated in several programs. In 2013, the board 

also acknowledged that relator had participated in relevant programs and that he had 

actually showed some positive change and motivation. The fact that the board did not 

specifically identify any of those programs by name is not evidence that relator did not 

receive meaningful review and he cannot show that he has a clear legal right to have the 

programs in which he participated specifically listed in the rationale for denying him 

parole or that respondents are under any duty to specifically list each and every program 

in which an inmate had participated. For those reasons alone, this court should grant 

respondents' motion to dismiss. 

{¶ 35} The magistrate notes further that relator does have a plain and adequate 

remedy in the ordinary course of law. In Dotson v. Wilkinson, 300 F.3d 661 (2002), an 

inmate had appealed the trial court's dismissal of his action under 42 U.S. 1983, and the 

sole issue on appeal was whether the trial court erred in holding that the inmate's 

challenge to the application of the parole eligibility guidelines was cognizable under 42 

U.S. 1983. The court did not reach the question of whether the guidelines had been 

lawfully or unlawfully applied. The trial court held only that the inmate's suit was 

cognizable under 42 U.S. 1983, and it reversed and remanded the action for further 

proceedings. 

{¶ 36} As respondents assert in their motion to dismiss, relator does have an 

adequate remedy at law by pursuing an action under 42 U.S. 1983. 

{¶ 37} To the extent that relator argued that this court should permit him to join 

certain respondents who were named, but not served, the magistrate denies his motion 

finding that the respondents who were served adequately represented any and all of the 

named respondents. As such, relator's motion for joinder is denied. 
No. 15AP-1079 11 

{¶ 38} Based on the foregoing, it is this magistrate's decision that relator has not 

stated a claim upon which relief in mandamus can be granted and this court should 

grant respondents motion to dismiss. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

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).