[Cite as State ex rel. Wolfenbarger v. Mohr, 2019-Ohio-3739.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Michael A. Wolfenbarger, 

 : 

 Relator, 

 : 

v. No. 18AP-508 

 : 

Gary C. Mohr, ODRC Director et al., (REGULAR CALENDAR) 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on September 17, 2019 

 

Michael A. Wolfenbarger, pro se. 

Dave Yost, Attorney General, and George Horvath, for 

respondents.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

NELSON, J. 

{¶ 1} The central issue in this case has boiled down to whether the Ohio 

Department of Rehabilitation and Correction ("ODRC," or "the department") is precluded 

from directing that where possible, inmates seeking to file grievances about the operation 

of the prison system do so electronically through computer kiosks provided for that 

purpose. Relator Michael A. Wolfenbarger points to no language in law or regulation that 

bars implementation of that preferred electronic approach: he has not met his legal burden 

in this matter and is not entitled to the relief that he seeks. 
No. 18AP-508 2 

Procedural Background and Facts 

{¶ 2} After ODRC replaced its paper-based grievance procedure with the electronic 

system, Mr. Wolfenbarger filed this mandamus action alleging that ODRC respondents had 

eliminated its grievance procedure in violation of his constitutional rights and of the 

officials' "legal duty" under various administrative regulations. June 22, 2018 Petition at 

¶ 9. Asserting that he had been denied the appropriate grievance forms (sought, we shall 

assume he means, in order actually to file a grievance), he requested that we issue a writ 

directing the ODRC respondents to make available to him what he considers the 

appropriate inmate grievance procedure. Id. at ¶ 5 and prayer for relief. We referred the 

case to a magistrate pursuant to Civil Rule 53 and Local Rule 13(M) of the Tenth District 

Court of Appeals. 

{¶ 3} The matter was briefed and the magistrate granted the unopposed motion of 

one respondent (the director of administrative services) to dismiss him from the case. In 

due course, the magistrate issued a decision that is appended to this opinion and to which 

Mr. Wolfenbarger has filed objections. She determined that Mr. Wolfenbarger has not 

demonstrated "that he has a clear legal right to file grievances on paper or that ODRC has 

a clear legal duty to revert back to a paper grievance system." App'x at ¶ 31. Mr. 

Wolfenbarger has objected to that and to other of the magistrate's conclusions; he asks that 

we grant the requested writ rather than denying his request as the magistrate recommends. 

See Relator Objection to the Magistrate Decision ("Objections") at 3, 5. 

{¶ 4} Pursuant to Civil Rule 53(D)(4)(d), we "undertake an independent review as 

to the objected matters to ascertain [whether] the magistrate has properly determined the 

factual issues and appropriately applied the law." Because our independent review leads 

us to determine that mandamus is not warranted, we adopt the magistrate's ultimate 

recommendation and deny the requested writ. 

{¶ 5} Mr. Wolfenbarger's post-petition filings make clear that while he concedes 

the existence of the electronic grievance system, he maintains that department regulations 

mandate that paper filings be permitted instead. See, e.g., Objections at 3 ("[u]nder ODRC 

policy [citing Ohio Adm.Code 5120-9-31], the respondent is under a legal duty to provide 

the relator * * * paper grievance forms"), 4 (objecting to "the magistrate decision [that] 
No. 18AP-508 3 

relator has not demonstrated that ODRC abused its discretion when it instituted an 

electronic grievance filing system at the prison"). 

{¶ 6} In this vein, Mr. Wolfenbarger himself directs our attention to his exhibit 3, 

a letter from the General Assembly's Correctional Institution Inspection Committee 

offering its observations on "the new grievance process." Objections at 3; Relator Ex. 3 at 

1. That letter refers to statistics showing "that inmates are utilizing the grievance procedure 

now more than before, with this kiosk machine process, rather than when inmates were 

using the paper forms." Relator Ex. 3 at 1. It continues by saying that "[t]he office of the 

inspector at the Marion Correctional Institution also revealed that if inmates have trouble 

utilizing the grievance procedure, they will assist them in the filing process." Id. And it 

goes on to say that if inmates do not have access to the kiosk machines, paper forms will 

still be available, id., and to advise that the "Inspector can assist with helping inmates to file 

their complaints, as well as ensuring that inmates can get hard copies of the complaints and 

responses," id. at 2. 

{¶ 7} We note that nothing in Mr. Wolfenbarger's complaint or in his subsequent 

filings specifically alleges or suggests that he lacks access to or ability to use the electronic 

system, or that there is some other impediment to his effective use of that system. 

Law and Analysis 

{¶ 8} We agree with the magistrate that Mr. Wolfenbarger "has not alleged any 

facts that demonstrate that his right to file grievances has been denied." App'x at ¶ 30. And 

we find that Mr. Wolfenbarger is incorrect in his view that R.C. 5120.01 and Ohio 

Administrative Code 5120-9-31 separately or together mandate that he be provided with 

"paper grievance forms" nonetheless. See Objections at 3. Neither the statute nor the 

regulation that Mr. Wolfenbarger invokes mentions "paper," or precludes the kiosk system 

where available. 

{¶ 9} Rather, R.C. 5120.01 sets forth the authority of the director of rehabilitation 

and correction and provides that all duties that she or he confers on divisions of the 

department "shall be under the director's control" and performed under the rules and 

regulations that the director sets forth. 

{¶ 10} And the Administrative Code section (even as in effect when Mr. 

Wolfenbarger filed his mandamus complaint) establishes the grievance process but does 
No. 18AP-508 4 

not militate against the kiosk system. It requires that the department "shall provide 

inmates with access to an inmate grievance procedure" to "address inmate complaints 

related to any aspect of institutional life that directly and personally affects the grievant. 

This may include complaints regarding the application of policies, procedures, conditions 

of confinement, or the actions of institutional staff." 2017 Ohio Adm.Code 5120-9-31(A). 

It further defines the parameters of the process (subsection B); directs that written 

explanations and instructions for its use be provided (subsection C); requires its broad 

availability (subsection D); establishes restrictions on and sanctions for its misuse 

(subsections E and F); protects against retaliation for its use (subsections G and H); 

safeguards the confidentiality of grievance records (subsection I); provides that "[o]nly 

forms designated by the chief inspector may be used to file * * * grievances," ensuring that 

"[s]uch forms shall be reasonably available to inmates regardless of their disciplinary status 

or classification," and that "[i]nmates shall not be required to advise a staff member, other 

than the inspector of institutional services, of the reason the form is being requested" 

(subsection J); outlines the steps and timing of the written grievance process (subsection 

K); mandates that appropriate remedies be provided for valid grievances (subsection L); 

and designates specific procedures for grievances against the warden or inspector 

(subsection M). 2017 Ohio Adm.Code 5120-9-31. 

{¶ 11} Apart from his generalized complaint as to the medium for the writing 

required—apart from his argument, that is, with the new electronic as opposed to the old 

paper filing process—Mr. Wolfenbarger does not contend that any of these specifications 

has been disregarded or breached. 

{¶ 12} We agree with the magistrate that Mr. Wolfenbarger has been "unable to 

demonstrate that he has a clear legal right to file grievances on paper or that ODRC has a 

clear legal duty to revert back to a paper grievance system." App'x at ¶ 31. Mr. Wolfenbarger 

does not even attempt to suggest that making filings through the electronic kiosk system is 

beyond his grasp, or to explain how he has been divested of some constitutionally protected 

liberty interest. See, e.g., State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477, 479 (1997) 

("state regulatory schemes do not create a constitutionally protected liberty interest merely 

because regulations incorporate seemingly mandatory language"). Nor does he begin to 

demonstrate that the administrative code section he cites enshrines a mandate that inmates 
No. 18AP-508 5 

must be permitted to use paper grievance forms even when electronic submission by 

computer is available to them and they are able to use that process. 

{¶ 13} Mr. Wolfenbarger appears to try to stretch the various references to "forms" 

in former Ohio Adm.Code 5120-9-31(J) as quoted above into an exclusion of all but "paper 

forms," see Objections at 3, but the code provision itself didn't draw or command that 

distinction. Forms can be either paper or electronic, and forms of either variety are capable 

of being "used to file * * * grievances," made "reasonably available to inmates," or requested 

from or shared with staff members. Nothing in that subsection translates into language 

vesting Mr. Wolfenbarger with a "clear legal right" to paper forms, especially absent any 

particularized showing of need that Mr. Wolfenbarger does not even claim. 

Correspondingly, nothing in that language outlaws the kiosk system or creates a "clear legal 

duty" in prison officials to provide paper forms in the circumstance shown here. 

{¶ 14} And in any event, the language of that regulatory subsection was amended 

effective April 5, 2019 (while still leaving authority with the chief inspector). Redesignated 

as 5120-9-31(I), the subsection now reads: "Only the grievance process designated by the 

chief inspector may be used to file * * * grievances * * *. Such process shall be reasonably 

available to inmates regardless of their disciplinary status or classification. Inmates shall 

not be required to advise a staff member, other than the inspector of institutional services, 

of the reason the process is being initiated." Again, this language does not support the 

mandamus relief that Mr. Wolfenbarger requests in insisting on "paper forms"; indeed, the 

current formulation of the regulations—the regulations that inform the process today— 

provides even less of an argument for mandamus than did the previous iteration, assuming 

that the specific details of either version have conferred enforceable rights to Mr. 

Wolfenbarger, compare Larkins; Triplett v. Warren Corr. Inst., 10th Dist. No. 12AP-728, 

2013-Ohio-2743 (regarding certain other prison regulations on other matters). 

{¶ 15} In sum, nothing in law or regulation prevents the department from having 

grievances funneled and organized through the electronic filing system, absent facts not 

alleged here. And aside from his administrative code argument that we do not find 

persuasive, Mr. Wolfenbarger has not essayed a showing that "ODRC abused its discretion 

when it instituted" the electronic filing system, see Objections at 4; we overrule that 

objection to any extent that it is intended as separate from his objection—which we overrule 
No. 18AP-508 6 

as well—to the magistrate's bottom line conclusion that he has not shown a clear legal right 

to use paper grievance forms, and that ODRC officials have no clear legal duty to provide 

him with such forms in lieu of the electronic counterparts. 

{¶ 16} Because Mr. Wolfenbarger's own legal arguments and evidence do not bear 

out his mandamus case (and we note that his exhibit 2 relates to ODRC employee 

grievances, and that Mr. Wolfenbarger is not an ODRC employee) , we need not explore the 

evidence to which Mr. Wolfenbarger objects as submitted by the ODRC officials. That 

evidence, which to some extent may parallel the letter submitted by Mr. Wolfenbarger as 

his own exhibit E, is extraneous because Mr. Wolfenbarger concedes the existence of the 

kiosk electronic filing system and does not contend that he is unable to use it. In that 

context, the allegations of his complaint as supplemented by his further submissions do not 

show entitlement to the relief he requests. See, e.g., State ex rel. Berger v. McMonagle, 6 

Ohio St.3d 28 (1983) (as cited by magistrate: for writ of mandamus, relator must show a 

clear legal right to relief sought, a clear legal duty by respondent to perform the act 

requested, and that relator has no plain and adequate remedy in the ordinary course of the 

law). 

{¶ 17} Somewhat relatedly, perhaps, Mr. Wolfenbarger further objects that the 

magistrate erred in not holding the ODRC respondent(s) in contempt for failing to meet 

deadlines stated in the magistrate's scheduling order of July 26, 2018. Objections at 4 

(probably referencing July 23, 2018 order). The record shows that the magistrate stayed 

the briefing schedule in order to rule on a party's motion to dismiss, and that she set a new 

briefing schedule. See Magistrate's Orders of August 14 and Sept. 26, 2018. There is no 

reason to penalize a party for failing to comply with deadlines in a superseded scheduling 

order. Moreover, the motion to dismiss the director of the department of administrative 

services, to which Mr. Wolfenbarger seems to say he "was never given any opportunity" to 

respond, Objections at 4, was filed on August 1, 2018 (in advance of the earlier briefing 

date), and Mr. Wolfenbarger had not responded to it when the magistrate granted it, 

unopposed, almost two months later. See Magistrate's Order of September 26, 2018. (Mr. 

Wolfenbarger does not argue now that the director of the department of administrative 

services could have provided him with the relief that he seeks, or that the DAS official's 

dismissal was in error; he did not argue against that dismissal at the time, or move to set it 
No. 18AP-508 7 

aside, and it stands.) Mr. Wolfenbarger had no entitlement to a contempt order against any 

respondent or counsel in any event, and such an order would not have made his mandamus 

case any stronger. For a host of reasons, that objection is overruled. 

{¶ 18} Mr. Wolfenbarger also objects that the magistrate "fail[ed] to adjudicate 

whether or not the relator has a plain and adequate remedy in the ordinary course of law 

[under] R.C. 2731.05." Objections at 5. But because "all three" of the requirements for 

mandamus must be shown for a writ to issue, the failure to demonstrate one of them is 

sufficient to deny the writ. State ex rel. McGrath v. Ohio Adult Parole Auth., 8th Dist. No. 

82287, 2003-Ohio-1969, ¶ 5. Mr. Wolfenbarger has failed to demonstrate either a clear 

legal right to file grievances on paper or a clear legal duty on the part of ODRC officials to 

reinstate a paper-based grievance process, so this objection, too, is overruled. 

{¶ 19} We turn, lastly, to Mr. Wolfenbarger's objection to the magistrate's 

recommendation that because he "did not prevail and did not establish indigency, this court 

should order relator to pay the costs of the proceedings." Objections at 1; App'x at ¶ 32. 

Although Mr. Wolfenbarger's filing of his affidavit of indigency entitled him only to a waiver 

for "prepayment" of the filing fee under R.C. 2969.25(C), we have discretion as to whether 

to order a prison inmate to pay costs in a losing mandamus action. State ex rel. Pamer v. 

Collier, 108 Ohio St.3d 492, 2006-Ohio-1507. In light of the relatively recent change in the 

grievance filing process and given the significance of that process in and to the prison 

system, costs on this occasion are waived. 

{¶ 20} Mr. Wolfenbarger has shown no basis for the writ of mandamus that he 

requests. For the reasons set forth above, we deny the writ. 

Writ of mandamus denied. 

BRUNNER and BEATTY BLUNT, JJ., concur. 

_________________ 

 
No. 18AP-508 8 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Michael A. Wolfenbarger, : 

 

 Relator, : 

v. : No. 18AP-508 

 

Gary C. Mohr ODRC Director et al., : (REGULAR CALENDAR) 

 Respondents. : 

 

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

Rendered on March 21, 2019 

 

Michael A. Wolfenbarger, pro se. 

Dave Yost, Attorney General, and George Horvath, for 

respondents.

 

IN MANDAMUS 

{¶ 21} Relator, Michael A. Wolfenbarger, has filed this original action requesting 

this court issue a writ of mandamus ordering respondent Gary C. Mohr as the Director of 

the Ohio Department of Rehabilitation and Correction ("ODRC") to permit him to continue 

filing grievances on paper instead of requiring him to file his grievances electronically. 

Findings of Fact:

{¶ 22} 1. Relator is an inmate currently incarcerated at Marion Correctional 

Institution. 

{¶ 23} 2. Relator filed this mandamus action on June 22, 2018. 
No. 18AP-508 9 

{¶ 24} 3. According to his complaint, respondent informed relator and other 

inmates that inmate grievances would no longer be filed and processed on paper; instead, 

an electronic inmate grievance procedure had been instituted whereby inmates, including 

relator, could file their grievances electronically. 

{¶ 25} 4. Relator argues that this change in the grievance procedure denies him his 

constitutional right to pursue institutional grievances. Inasmuch as Ohio Adm.Code 5120-

9-31 provides that inmates will be provided forms on which to file their grievances, relator 

contends that ODRC is required to continue to use those forms, and is precluded from being 

able to provide for the filing of grievances electronically. 

{¶ 26} 5. Respondent has submitted the affidavit of Pamela Shaw, administrative 

assistant, ODRC-MCI, who is employed as the administrative assistant for the warden at 

MCI. With regard to the new procedure for the filing of grievances, Ms. Shaw provides as 

follows: 

[Five] On or about November 6, 2017, MCI, upon direction of 

the ODRC's central administrative office, the Operation 

Support Center, implemented the JPAY Grievance System. 

Please see Notice, Attch. 1, at p. 1. 

[Six] The JPAY Grievance Kiosk, also known as the JPAY 

Grievance System and Communication Center, "provides 

inmates with the ability to submit a grievance and manage the 

process [electronically] from the inmate kiosk, and allow[s] 

staff members to sort, view and respond to grievances and 

monitor the timeframe and status of open items." Please see 

JPAY Training Guide, Att.2, at p. 2. 

[Seven] Rather than using paper forms such as Informal 

Complaint Resolutions, Notices of Grievance, and Appeals to 

the Chief Inspector, inmates are now provided access to an 

electronic JPAY Grievance Kiosk. 

[Eight] The aforementioned paper forms required the inmate 

to handwrite their concerns on the form and submit it to the 

appropriate MCI staff member. For Appeals to the Chief 

Inspector, the forms had to be sent to the Chief Inspector's 

Office in Columbus, Ohio. The new system improves the 

process for both inmates and staff. 

[Nine] A notice was posted in each housing unit informing the 

inmates of the new grievance system. Certain inmates in each 
No. 18AP-508 10 

housing unit were designated to assist other inmates in using 

the new system. See Notice, Attachment 1, at pp. 2-6. 

[Ten] Following the implementation of the JPAY Grievance 

System, grievance forms were removed from the housing 

units because they were no longer needed to submit grievance 

materials. 

[Eleven] At the time the JPAY Grievance System was 

implemented, inmate Wolfenbarger was housed in the Maple 

Unit 1-Dorm (MA/1/19). There was an inmate in that housing 

area that was designated to assist other inmates when using 

the system. Please see Offender Detail, Movement History, 

Attachment 3, at p. 5 and Notice, Attachment 1, at p. 3. 

[Twelve] The dorms at MCI are open areas containing bunk 

beds. For most of any given day, inmates living in a dorm 

environment can walk around the dorm and freely 

communicate with other inmates. 

[Thirteen] At no time were any of MCI's inmates prevented 

from using the JPAY Grievance System with the possible 

exception of any inmates on grievance restriction due to 

abusing the grievance system for illegitimate purposes except 

when the complaint constituted an emergency. 

[Fourteen] Inmate Wolfenbarger was not on grievance 

restriction, accordingly, could have used the JPAY Grievance 

System. 

[Fifteen] Pursuant to a request by the Ohio Attorney General's 

Office, a review of the MCI Warden's and undersigned 

Administrative Assistant's kite logs ("kites" are used by 

inmates for internal written communication to staff) from 

October 1, 2017 to July 18, 2018 was conducted. According to 

those logs, inmate Wolfenbarger did not kite the Warden or 

undersigned Administrative Assistant on his claimed 

grievance issue or any other issue. 

[Sixteen] To the best of my knowledge and belief, inmate 

Wolfenbarger suffers from no medical or mental disorders 

that would prevent him from using the JPAY Grievance 

System. 

[Seventeen] During his incarceration at MCI, he has worked 

as a Porter, Laundry Attendant, Program Aide, Food Service 
No. 18AP-508 11 

Worker, and Cook. Please see Offender Detail, Job 

Information, Attachment 3, at p.p. 3-4. 

[Eighteen] Inmate Wolfenbarger has demonstrated he is able 

to use JPAY Grievance System. On September 18, 2018, he 

used it to submit an Informal Complaint. Please see 

Attachment 4. 

[Nineteen] The attached documents, with the exception of any 

redactions or notations made by the Ohio Attorney General's 

Office, are true and accurate copies of documents kept within 

the normal course of business by ODRC and MCI. 

Conclusions of Law: 

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

should deny relator's request for a writ of mandamus. 

{¶ 28} 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). 

{¶ 29} Relator argues that ODRC has acted contrary to law by instituting an 

electronic grievance system. Relator asserts that, because Ohio Adm.Code 5120-9-31 

provides for the filing of inmate grievances on paper, ODRC is required to continue to 

maintain a paper grievance system. 

{¶ 30} Prison regulations like Ohio Adm.Code 5120-9-31 are primarily designed to 

guide correctional officials in prison administration and do not confer rights on inmates. 

See State ex rel. Larkins v. Wilkinson, 79 Ohio St.3d 477 (1997), and Triplett v. Warren 

Corr. Inst., 10th Dist. No. 12AP-728, 2013-Ohio-2743. Relator has not alleged any facts 

that demonstrate that his right to file grievances has been denied. In fact, in her affidavit, 

Ms. Shaw stated that relator has availed himself of the electronic grievance system. 

Furthermore, Ms. Shaw attached a copy of that grievance and the reply to the grievance 

received by relator. As such, it is clear that relator is not being denied his right to file 

grievances. 

{¶ 31} Relator is unable to demonstrate that he has a clear legal right to file 

grievances on paper or that ODRC has a clear legal duty to revert back to a paper grievance 
No. 18AP-508 12 

system. Relator simply has not met his burden of proving that he is entitled to a writ of 

mandamus. 

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

demonstrated that ODRC abused its discretion when it instituted an electronic grievance 

filing system at the prison, and this court should deny relator's request for a writ of 

mandamus. Further, pursuant to the above-cited authority, inasmuch as relator did not 

prevail and did not establish indigency, this court should order relator to pay the costs of 

the proceedings. 

 /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).