[Cite as Ellis v. Cuyahoga Cty. Prosecutor's Office, 2018-Ohio-3479.]




L'DDARYL D. ELLIS                                       Case No. 2018-00782PQ

        Requester                                       Judge Patrick M. McGrath

        v.                                              DECISION

CUYAHOGA COUNTY
PROSECUTOR'S OFFICE

        Respondent

        {¶1} Before the court are (1) Special Master Jeffery W. Clark’s report and
recommendation of May 31, 2018, (2) requester L’Ddaryl D. Ellis’s objections of
June 11, 2018 to Special Master Clark’s report and recommendation, and
(3) respondent Cuyahoga County Prosecutor’s Office’s response of June 27, 2018 to
Ellis’s objections. For reasons set forth below, the court holds that Ellis’s objections
should be overruled and that the special master’s report and recommendation should be
modified.
                               Background and Procedural History
        {¶2} On May 4, 2018, Ellis filed a complaint in this court against respondent
Cuyahoga County Prosecutor’s Office. Ellis alleged:
       On December 4, 2015 the Cuyahoga County Prosecutor’s office denied
        him access to public records concerning his criminal case (criminal case
        No. CR-12-568532);
       On December 22, 2015, the Cuyahoga County Prosecutor’s Office denied an
        identical public-records request by his mother for records concerning Ellis’s
        criminal case;
       On March 27, 2017, the prosecutor’s office denied another public records request
        made by Ellis pertaining to records concerning his criminal case;
Case No. 2018-00782PQ                        -2-                                  DECISION
      On November 16, 2017, the prosecutor’s office denied Ellis’s request “pertaining
       to the same file’s [sic] I previously requested pertaining to my Criminal Case
       No. CR-12-568532;” and
      On November 28, 2017, the prosecutor’s office denied a request made by a
       private investigator, who was hired by Ellis’s aunt, relative to a public-records
       request concerning Ellis’ criminal case.
After Ellis filed his complaint, the court appointed Jeffery W. Clark as a special master in
the cause. And after the court appointed Clark as special master, the Cuyahoga County
Prosecutor’s Office filed a Civ.R. 12(B)(6) motion, urging the court to dismiss Ellis’
action for failure to state a claim.
       {¶3} On    May     31,   2018,   Special    Master   Clark   issued   a   report   and
recommendation. In this report and recommendation, Special Master Clark made no
express recommendation relative to the prosecutor’s Civ.R. 12(B)(6) motion. But the
special master did conclude that Ellis had failed to establish by clear and convincing
evidence that the Cuyahoga County Prosecutor’s Office violated R.C. 149.43(B).
Special Master Clark found that the Cuyahoga County Prosecutor’s Office “has shown
by clear and convincing evidence that Ellis was and remains incarcerated for a criminal
conviction, and has not complied with the mandatory requirements of R.C. 149.43(B)(8)”
and the Special Master Clark found that the prosecutor’s office “was not required to
permit Ellis or his designees to inspect or copy the withheld records of his criminal
investigation or prosecution.” (Report and Recommendation, 4.) In the report and
recommendation’s conclusion, Special Master Clark stated: “Upon consideration of the
pleadings and attachments, I find that Ellis has failed to establish by clear and
convincing evidence that the Prosecutor’s Office violated R.C. 149.43(B) with respect to
his requests for records related to a criminal prosecution. I therefore recommend that
the court issue an order denying Ellis’ request for production of records. I recommend
that costs be assessed against requester.” (Report and Recommendation, 4.)
Case No. 2018-00782PQ                        -3-                               DECISION
       {¶4} The court forwarded a copy of Special Master Clark’s report and
recommendation to Ellis and the prosecutor’s office. The court’s docket indicates that
a copy of the special master’s report and recommendation was delivered to Ellis on
June 4, 2018. And Ellis confirms that he received a copy of the report and
recommendation on June 4, 2018. See Objections, 1 (“The Requester did not receive
the Special Master’s Recommendation until June 4, 2018”).
       {¶5} On June 11, 2018—seven days after Ellis received a copy of the special
master’s report and recommendation—Ellis filed written objections to the special
master’s report and recommendation. In a certificate of service, Ellis represents that, on
June 6, 2018, he sent a copy of his objections via “Certified/Registered/Return Receipt
U.S. Mail” to the Cuyahoga County Prosecutor’s Office.           By his objections, Ellis
essentially claims that his designees are entitled to information requested under the
Ohio Public Records Act and that the special master erred in concluding that, because
Ellis’s designees were in privity with him, the requests made by Ellis’s designees were
subject to the same limitations that applied to Ellis himself.
       {¶6} The court forwarded by certified mail a copy of Ellis’s objections to defense
counsel. According to the court’s docket, defense counsel received a copy of Ellis’s
objections on June 20, 2018. Seven days later—on June 27, 2018—the Cuyahoga
County Prosecutor’s Office, through counsel, filed a response to Ellis’s written
objections.   According to the certificate of service accompanying the prosecutor’s
office’s response, counsel for the prosecutor’s office sent a copy of the response to Ellis
“via U.S. Mail, postage prepaid.”
                                    Law and Analysis

       {¶7} Pursuant to R.C. 2743.75(A), this court has authority to adjudicate or resolve
complaints based on alleged violations of R.C. 149.43(B). R.C. 2743.75(F)(2) governs
objections to a report and recommendation issued by a special master of this court.
Case No. 2018-00782PQ                           -4-                               DECISION
      Pursuant to R.C. 2743.75(F)(2):
      Either party may object to the report and recommendation within seven
      business days after receiving the report and recommendation by filing a
      written objection with the clerk and sending a copy to the other party by
      certified mail, return receipt requested. Any objection to the report and
      recommendation shall be specific and state with particularity all grounds
      for the objection. If neither party timely objects, the court of claims shall
      promptly issue a final order adopting the report and recommendation,
      unless it determines that there is an error of law or other defect evident on
      the face of the report and recommendation. If either party timely objects,
      the other party may file with the clerk a response within seven business
      days after receiving the objection and send a copy of the response to the
      objecting party by certified mail, return receipt requested. The court,
      within seven business days after the response to the objection is filed,
      shall issue a final order that adopts, modifies, or rejects the report and
      recommendation.
Here, Ellis has filed his objections with seven business days after receiving the special
master’s report and recommendation. Ellis objections are thus timely filed. And in his
certificate of service, Ellis represents that he served a copy of his objections on
respondent    by   certified   mail,   return    receipt   requested   in   accordance   with
R.C. 2743.75(F)(2).
      {¶8} Additionally, the court finds that prosecutor’s office’s response to Ellis’s
objections is timely filed because the prosecutor’s office filed a response within seven
business days after receiving the copy of Ellis’s objections that the court forwarded to
the prosecutor’s office.   However, the prosecutor’s office’s response does not fully
comport with requirements contained in R.C. 2743.75(F)(2) because, according to the
certificate of service accompanying the prosecutor’s office’s response, counsel for the
prosecutor’s office did not send a copy of the response to Ellis by certified mail, return
receipt requested, as required by R.C. 2343.75(F)(2). Because the prosecutor’s office
failed to fully comply with procedural requirements contained in R.C. 2743.75(F)(2)
when it filed its response, the prosecutor’s office’s non-conforming filing properly may
be stricken. See McCormac and Solimine, Anderson’s Ohio Civil Practice with Forms,
Section 6.12 (2016 Ed.) (“a court has an inherent right to strike pleadings from the file
Case No. 2018-00782PQ                          -5-                                  DECISION
where its rules are being violated or grossly abused”); see also Barrette v. Lopez,
132 Ohio App.3d 406, 416-417, 725 N.E.2d 314 (7th Dist. 1999) (“a trial court is vested
with broad discretion over the admission and exclusion of evidence. * * * Thus, even in
the absence of an objection, the trial court has the inherent authority to exclude or strike
evidence on its own motion”). However, in the interest of justice, the court will accept
the prosecutor’s office’s response as filed.
       {¶9} In the report and recommendation, the special master stated: “The
Prosecutor’s Office provides unsworn copies of Ellis’ Offender Details from the Ohio
Department of Rehabilitation and Correction, as well as the criminal docket sheet from
CR-12-568532-A that supports both Ellis’ inmate status and his failure to seek a
judicial finding [required under R.C. 149.43(B)(8)]. (Response, Exhibits 1, 2.) These
averments and documentation are consistent with the inferences that may be drawn
from the correctional institution return address in Ellis’ pleadings and attachments, and
his failure to reference any judicial finding in his correspondence or complaint.” (Report
and Recommendation, 4.)
       {¶10} A review of the record before the court discloses a letter dated
December 4, 2015 from the Cuyahoga County Prosecutor’s Office to Ellis, which Ellis
appended to his complaint. This letter indicates that, as of December 4, 2015, Ellis was
incarcerated at Trumbull Correctional Institution and that, as of December 4, 2015, Ellis
was assigned an inmate number: #641-151. And a review of Ellis’s complaint discloses
that Ellis lists his current address as “5701 Burnett Road, Leavittsburg, Ohio, 44430.”
The court takes judicial notice that the address that Ellis lists in his complaint is the
address for Trumbull Correctional Institution.       See State ex rel. Cincinnati Enquirer
v. Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 16 (“Under
Evid.R. 201, a court may take judicial notice of adjudicative facts ‘i.e., the facts of the
case’ ”); Evid.R. 201(B) (a judicially noticed fact “must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial
Case No. 2018-00782PQ                        -6-                                 DECISION
court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned”).
       {¶11} If the factual representations in the letter dated December 4, 2015, which
are incorporated in Ellis’s complaint are presumed to be true, see State ex rel. Crabtree
v. Franklin County Bd. of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997), fn. 1
(material “incorporated in a complaint may be considered part of the complaint for
purposes of determining a Civ.R. 12(B)(6) motion to dismiss”), and if the factual
representations in Ellis’s complaint are presumed to be true and if all reasonable
inferences therefrom are construed in Ellis’s favor, a reasonable inference exists that
Ellis is incarcerated and that Ellis is incarcerated pursuant to a criminal conviction.
       {¶12} R.C. 149.43(B)(8), which concerns the availability of public records to
incarcerated persons, thus applies in this instance. R.C. 149.43(B)(8) provides:
              A public office or person responsible for public records is not
       required to permit a person who is incarcerated pursuant to a criminal
       conviction or a juvenile adjudication to inspect or to obtain a copy of any
       public record concerning a criminal investigation or prosecution or
       concerning what would be a criminal investigation or prosecution if the
       subject of the investigation or prosecution were an adult, unless the
       request to inspect or to obtain a copy of the record is for the purpose of
       acquiring information that is subject to release as a public record under
       this section and the judge who imposed the sentence or made the
       adjudication with respect to the person, or the judge’s successor in office,
       finds that the information sought in the public record is necessary to
       support what appears to be a justiciable claim of the person.
(Emphasis added.) Here, even assuming that Ellis’s public-records requests were for
the purpose of acquiring information that is subject to release as a public record under
R.C. 149.43(B), the complaint and attendant exhibits do not reference an entry from the
judge who imposed Ellis’s sentence or made an adjudication with respect to Ellis, or the
judge’s successor in office, wherein the judge or the judge’s successor finds that the
information sought in the public record is necessary to support what appears to be a
justiciable claim of Ellis.    Neither does Ellis represent in his objections that he
possesses such an entry.       Thus, in accordance with R.C. 149.43(B)(8) Ellis is not
Case No. 2018-00782PQ                      -7-                                DECISION
entitled to the records that he seeks.     And in this instance the Cuyahoga County
Prosecutor’s Office is not required to produce the documents requested by Ellis. See
R.C. 149.43(B)(1) (stating in part that “[u]pon request and subject to division (B)(8) of
this section, all public records responsive to the request shall be promptly prepared and
made available for inspection to any person at all reasonable times during regular
business hours. Subject to division (B)(8) of this section, upon request, a public office
or person responsible for public records shall make copies of the requested public
record available at cost and within a reasonable period of time”).
      {¶13} Additionally, in this instance Ellis’s designees, who made request for the
records to which Ellis himself is not entitled, are not entitled to the records. See State
ex rel. Barb v. Cuyahoga Cty. Jury Commr., 128 Ohio St.3d 528, 2011-Ohio-1914, 947
N.E.2d 670. In Barb, Herbert E. Barb, Jr. asked an appellate court to issue a writ of
mandamus to compel the production of verdict forms and lists of prospective jurors in
criminal cases involving his brother, inmate Danny Barb. The appellate court denied a
writ of mandamus. Herbert E. Barb, Jr., appealed to the Ohio Supreme Court, and the
Ohio Supreme Court affirmed the appellate court’s judgment. In Barb, the
Ohio Supreme Court concluded that res judicata barred Herbert from instituting his own
mandamus action seeking some of the same records that his brother requested
because—as Danny's designee—he was in privity with him. And the Ohio Supreme
Court stated: “And Danny cannot circumvent the requirement of R.C. 149.43(B)(8),
which requires a finding by his sentencing judge or the judge’s successor that the
requested information is necessary to support what appears to be a justiciable claim, by
designating his brother to request the records for him. As the court of appeals
concluded, ‘Herbert may not do indirectly what Danny is prohibited from doing directly.’”
Barb at ¶ 1. Barb supports Special Master Clark’s finding that the Cuyahoga County
Prosecutor’s Office “was not required to permit Ellis or his designees to inspect or copy
the withheld records of his criminal investigation or prosecution.” (Report and
Recommendation, 4.)
Case No. 2018-00782PQ                         -8-                                   DECISION
       {¶14} Thus, construing Ellis’s complaint with its attendant attachments in a light
most favorable to Ellis, presuming all factual allegations in the complaint are true, and
making all reasonable inferences in favor of Ellis, it appears beyond doubt that Ellis has
failed to prove a set of facts entitling him to relief. It follows that Ellis has failed to state
a claim upon which relief can be granted and that a reasoned basis exists to support the
granting of the prosecutor’s office’s motion to dismiss. The court therefore modifies the
special master’s report and recommendation to indicate that the prosecutor’s office’s
contention that Ellis has failed to state a claim upon which relief can be granted is not
wholly without merit.
                                         Conclusion
       {¶15} Accordingly, for reasons set forth above, the court holds that Ellis’s
objections filed on June 11, 2018 should be overruled. The court determines that the
special master’s report and recommendation should be modified as set forth in this
decision.




                                             PATRICK M. MCGRATH
                                             Judge
[Cite as Ellis v. Cuyahoga Cty. Prosecutor's Office, 2018-Ohio-3479.]




L'DDARYL D. ELLIS                                       Case No. 2018-00782PQ

        Requester                                       Judge Patrick M. McGrath

        v.                                              JUDGMENT ENTRY

CUYAHOGA COUNTY
PROSECUTOR'S OFFICE

        Respondent

        {¶16} For reasons set forth in the decision filed concurrently herewith, and upon
independent review of the objected matters, the court OVERRULES Ellis’s objections
filed on June 11, 2016. The court ADOPTS the special master’s report and
recommendation filed on May 31, 2018, including the findings of fact and conclusions of
law contained in it, as modified by the concurrently filed decision. Judgment is rendered
in favor of respondent Cuyahoga County Prosecutor’s Office. Court costs are assessed
against Ellis. The clerk shall serve upon all parties notice of this judgment and its date
of entry upon the journal.




                                                     PATRICK M. MCGRATH
                                                     Judge


Filed July 3, 2018
Sent to S.C. Reporter 8/29/18
