ORICI A LIN THE SUPREME COURT OF OHIO

STATE ex rel.PAUL EDWARD BUNTINGc/o Belmont Corr. Inst.68518 Bannock RoadSt. Clairsville, 0H 43950,

Relator,

vs.

MARY POTTER, BeCI'sPRISON INVESTIGATOR68518 Bannock RoadSt. Clairsville, OH 43950,

Original Actionin Mandamus

Respondent.

COMPLAINT FOR A WRIT OF MANDAMUS

Paul Edward Bunting, PID No. 395-279(in care of) Belmont Correctional Institution (BeCI)68518 Bannock Road, SR 331Post Office Box No. 540St. Clairsville, OH 43950-0540Phone: 740-695-5169Fax: 740-695-8272

RELATOR, IN PROPRIA PERSONA.

Ohio Department ofRehabilitation and Correction (ODRC)Greg Trout, Chief Legal Counsel770 West Broad StreetColumbus, OH 43222Phone: 614-752-1164Fax: 614-752-1171

ODRC LEGAL COUNSELFOR THE RESPONDENT.

^^L LF= D

fiAl' G 4 2012

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CLERK OF COURTSUPREME COURT OF OHIO

12'®0'7 87CASE NO.

M E M 0 R A N D U M I N S U P P 0 R T 0 F W R I T

JURISDICTIONAL AUTHORITY

¶1. The Supreme Court of Ohio (this "COURT" hereinafter) is

vested with original jurisdiction to entertain an action for a

complaint for a writ of mandamus pursuant to the following

authorities:

OHIO RULES OF PRACTICE: O.R.Sup.Ct.Prac., RULE 10.1(A),:et seq.;

OHIO REVISED CODE: O.R.C. §§ 2503.04, 2731.02, et seq.;

OHIO RULES OF CIVIL PROCEDURE: O.R.Civ.Proc., RULE 8(A), 82, et al.;

OHIO CONSTITUTION: O.Const., Art. IV, § 2(B)(1)(b), et al.;

UNITED STATES CONSTITUTION: Const.Amend., U.S.C.A. 1,5,9,10,14.

SUMMARY OF COMPLAINT

¶2. Relator Paul Edward Bunting ("RELATOR" herein) files for a

mandamus complaint against the BeCI correctional institution's

administrative prison investigator Mary Potter ("RESPONDENT"

hereof). The mandamus request has multiple and alternative orders

based on the Respondent to null and void the [attached exhibit]

of an alleged unauthorized discretionary imposition of an adminis-

tratively imposed "Direct Order to Cease Correspondence/Contact"

("NO CONTACT ORDER" herefor) with the named complainant-party as

indicated on the exhibited form, DRC2575, [a] Libra "Hanlon." To

which the complainant's surname is also in question as a misnomer.

¶3. Relator request under the issuance of this mandamus: (1) for

Respondent to perform the act of vacating the No Contact Order, or

(2) order Respondent to produce the evidence to support the deter-

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ative result of the DRC form's statement solely relying on only

that Respondent is "in receipt of information from Libra Hanlon,"

or (3) in another alternate writ process to require Respondent to

produce the supportive evidence and any recorded telephone conver-

sations between Relator and the party from which whom Relator has

supposedly knows the person entered on the no contact form, i.e.,

Libra "HANLON." Thus for, (4) as accord is whether this Court will

consider a misnomer standing alone to issue the writ on grounds to

invalidate the form altogether, or, however, whether Relator may

concede that the named complainant is a known person which may be

inferred that the last name is just merely misspelled. And also by

which to include (^) to order Respondent to invoke the jurisdic-

tion of the Ohio State Police ("OSP") [a.k.a., thestate highway

patrol], to take an investigative police report from Relator which

had been previously denied by the Respondent in other matters to

ensue a legal action agpi-ff5t Relator's daughter, et al. , named infra.

But most of all, it is plausible that Respondent cannot possibly

produce any evidence from the complainant to corroborate facts to

withstand a rebuttal without recreating the complainant's state-

ments which would lack evidence requisite to refute the alleged

false information which would prove it was fallacy given to the

Respondent on false pretense for an interior motive by the com-

plained party at the original time the misnomer-party supposedly

made a complaint no matter whose name is construed on the com-

plaint. Which would also urge this Court to issue the writ to void

the No Contact Order, in toto, And (6) to enjoin Respondent (by

mandamus) from reimposing or from recreating a new no contact re-

striction against Relator without first producing substantial

evidence to support finding whether Relator had actually made any

vexatious phone calls to anyone.

¶4. Considering the foregoing isfurther demonstrated, infra, and

supported by an affidavit specifying the details of the claim(s)

were made on personal knowledge.

STATEMENT OF THE CASE AND FACTS

¶5. The derivative cause to issue a mandamus came because of the

assets from the death of Relator's mother ("DECEDENT") which had

occurred in April of 2008. Where family members had disposed of,

inter alia, the assets that included Relator's own personal pro-

perty and belongings contained in Decedent's domicile while Relator

has been serving a prison term in the State's institution ("ODRC").

During which involved the removal of Relator's property when one of

his daughters had contacted Relator of Decedent's death regarding

the storage of some of Relator's belongings that were collected in

an undetermined size cardboard box ("BOX") full of various papers.

Which was said to be some legal material, and other documents and

court papers, but mainly recognized as such as impending legal

litigations relevant to Relator's conviction, but most importantly

were Relator`s vehicle titles of ownership.

¶6. Relator and this aforementioned daughter whose first name is

also Libra but last name is spelled "HANLIN" (identified herein as

"LIBBY"), is whether this Court declares it to be the same.party

on the EXHIBIT - "No Contact Order" form but incorrectly spelled,

as "HANLON."

¶7. Numerous telephone and letter correspondences occurred be-

tween Libby and Relator regarding the storage of Relator's proper-

ty, but esp., the storage of the Box. As which the evidence lies

within the monitored recordings of the prison's telephone conver-

sations held with Relator and his daughter Libby from 04/01/2008

to 07/26/2008, through the Ohio institution's inmate telephone

service company provides by Global Tel*Link ("GTL") who possesses

these individual telephone calls. Whereas, the Respondent should

be responsible to obtain a hard-copy transcript which will refute

and negate all matters of the No Contact Order. Which Relator had

already attempted to have Respondent obtain a transcript copy of

these dates mentioned as evidence so Relator can file a replevin

against Libby, and for other property-related reasons. But Relator's

request to obtain a copy was refused by Respondent stating to need

a court-order. And therefore, Relator cannot independently procure

a copy of the telephone transcript that would absolve all issues

relevant to Respondent's conjectured information without Relator

having to exercise yet another writ directly to GTL.

¶8. The evidence from those telephone conversations will also

reveal that Libby had consented to Relator's desire to have the

Box delivered to a co-existing friend so it may be stored inside

of Relator's Van vehicle which this friend is keeping during the

time of Relator',s iAcarceration.

¶9. Libby's telephone number became blocked from Relator's prison

access calls which was first surmised asa-a unpaid phone bill. But

subsequently, Libby was not responding to any of Relator's letters

regarding whether the delivery of the Box was successful. However,

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two years later on June 3rd, 2010, Libby declined to convey the

Box and obviously disregarded Relator's wishes to reserve the Box

by ploying the no contact order against Relator.

¶10. In addition to filing a complaint for a writ of mandamus in

the original action pursuant to the Rules of Practice of the Su-

preme Court of Ohio ("S.Ct.Prac.R.") under S.CtyrPrac.R., Section

10, et seq., contra to an original action in the courts below,

i.e., court of appeals and common pleas courts, that mandates cer-

tain attachments with a mandamils complaint under the RC Chapter

2731, of the Ohio Revised Code ("RC"), but are not required by

this Supreme Court's rules of practice under Section 10.

¶11. For instance, the Respondent may concede to try to dismiss

the mandamus on erroneous grounds that the complaint would be de-

fective because it did not comply with certain statutory affida-

vits, such as RC 2969.25(A), that "an inmate who commences a civil

action against a government entity or employee must file an affi-

davit that contains a description of each civil action or appeal

of a civil action that an inmate has filed in the previous five

years in any state or federal court," which is not required to be

attached to g mandamus complaint filed in this Court. The same is

not applicable under division (C) of this RC Section 2969.25, which

only applies in the courts below where there it is only required

that an affidavit of indigency seeking waiver of repayment of the

filing fee contains a statement certified by the institutional

cashier that would set forth the balance in the inmate's account

for the preceding six monghs,... But for, according to S.Ct.Prac.R.

15.3, only provides, "An affidavit of indigency may be filed in

lieu of filing,"_ fee or security deposits." Id. Which a sample form is

available of the specifically required affidavit of indigency that

is found at APPENDIX-E, in the Rules of Practice of the Supreme

Court of Ohio (2011) rule book on page 141. Which the rule itself

does not provide any additional requirements. For which as in ac-

cord to S.Ct.Prac.R. 10.2, "In all original actions filed in the

Supreme Court of Ohio, the Rules of Practice of the Supreme Court

of Ohio shall govern the procedure and the form of documents filed

in the actions. * * ", jE" Id., in relevant part. And see, STATE ex

rel. BOTKINS vs. LAWS, 69 Ohio St.3d 383, 1994-Ohio-518. No cases

were found decided out of this Court requiring otherwise. And also

see, STATE ex rel. MADISON, et al., vs. COTNER, et al. (1981), 66

Ohio St.2d 448, -, 423 N.E.2d 72, 73 (* =#the verification re-

quirements contained in R.C. 2731.04 have been displaced by Civ.R.

11.), citing State ex rel. Millington vs! Weir (Ohio App. lODist.,

Franklin 1978), 60 Ohio App.2d 348, -, 397 N.E.2d 770, 772 (* * *

the petition (or complaint) need not be verified or accompanied by

an affidavit as the requirements of R.C 2731.04 are superseded by

the civil rules.). See, 1979 Staff Notes: Civil Rule 11 abolishes

the verification with but few exceptions. Civil Rule 11 provides

in part, "* ',, Except when otherwise specifically provided by

these rules, pleadings need not be verified or accompanied by af-

fidavit." (Adopted eff. 7-1-70; amended eff. * #* 7-1-01).

¶12. See exception under S.Ct.Prac.R. 10.4(B), "All complaints

shall contain a specific statement of facts upon which the claim

for relief is based, shall be supported by an affidavit specifying

the details of the claim,..." To which herefor is attached affi-

davit where the rule of this Court only requires that the affidavit

must be "'based on personal knowledge.'" Id., in quotations. See

also, STATE ex rel. SHEMO, et al. vs. CITY OF MAYFIELD HTS., et al.,

92 Ohio St.3d 324, 324-325, 2001-Ohio-203 (citations omitted).

CAUSE OF ACTION TO GRANT WRIT

¶13. Accord to RC Chapter 2731, to be entitled to a writ of manda-

mus applicable with the rule of S.Ct.Prac.R. 10.1, the relator must

establish a clear legal right to relief requested, a corresponding

clear legal duty on part of respondent, and the lack of an adequate

remedy in the ordinary course of law. See, STATE ex rel. LUNA vs.

HUFFMAN (1996), 74 Ohio St.3d 486, 487, 659 N.E.2d 1279, 1280, and

see, STATE ex rel. HODGE vs. TAFT (1992), 64 Ohio St.3d 1, 3, 591

N.E.2d 1186, 1188 (citations omitted).

¶14. Statement of facts of claim

The operative facts give rise to a right enforceable to issue

a writ of mandamus for a remedy recognized by law. In which, on

June 3rd of 2010, tHeRespondent [Mary Potter] while acting in her

official capacity as the correctional institution's prison investi-

gator for the Belmont Correctional Institution (BeCI), and quasi-

in rem with the Ohio State Police (OSP) in the jurisdiction of

having determinative rights of the prisoners' interest involving

the status of things generally with respect of the OSP's jurisdic-

tion in cases where certain incidents may occur on the compound of

the BeCI premises or subject therewith. The Respondent had without

probable cause and in the absence of evidence of fact to substanti-

ate findings which must be more than a scintilla of evidence or a

mere statement to enable the imposition of an unauthorized restric-

tion that orders an inmate to cease correspondnece and contact with

another person by letters, telephone calls, etc., as indicated on

the form shown with hereto, EXHIBIT - Direct Order to Cease

Correspondence/Contact ("NO CONTACT ORDER" herein).

1ff15. A no contact order was placed upon Relator, as an inmate, and

based on an after-the-fact of a disciplinary action in accord to

inmates who violate the Rules of Conduct under Rule 55 of the OAC

5120-9-06, of the Ohio Administrative Code ("OAC") (Eff.: 07/15/20-

11) that states, "Use of telephone or mail to threaten, harass,

intimidate, or annoy another." Which this policy is also found in

the BeCI's Inmate Handbook under Rule 52 (Rev.2009), for the Dis-

ciplinary Process which states that, "Disciplinary action shall

not be imposed on an inmate until a hearing is conducted where the

accused inmate is given the opportunity to present a defense on his

behalf." Id. And plus, the same applied to the correlated citations

found in the No Contact Order from, i.e., Administrative Regulation

code OAC 5120-9-18 (Outgoing Mail), under which section (G)(6) of

this code does not follow the logic of the code where stated, "(G)

Inmates are prohibited from sending any letter or electronic mail:

* * #* (6) To any person who the inmate has been advised has noti-

fied the warden that he or she is being harassed by the inmate and

does not want to receive correspondence from the inmate. #^ *" In

which is only a requirement as an unjustified after thought of the

consequence without imposing an inmate conduct report in the first

instance. Including DRC Policy 76-VIS-02 (Inmate Access to the

Telephone privileges may be summarily removed for cause if a rule

violation is noted during the call. * * * All violations shall be

documented in a conduct report and the hearing officer or rules

infraction board may suspend telephone privileges for rule viola-

tions." Id. As which neither of these codes or rules apply to

support cause of imposing a disposition of placing Relator in an

order restricting contact with an outside individual citizen, a

misnomer naming Relator's daughter Libby without due course of a

disciplinary conduct process first. Respondent violates pro forma

of policy, codes and t°h:e:rules codified under this procedure.

¶16. It is evident that Respondent cannot show that Relator had

any intent or ill-will to abuse, threaten, or harass the complained

party. Respondent's accusations are demonstrably fallicious grounds

to impose restrictions that will not support the Respondent's deter-

minative findings to establish a formal sanction on Relator. And

Respondent's derivative conclusion, at best, is merely speculative

and conjectural based on lack of evidence inferred from the party's

frivolous information relayed to Respondent. Obviously, the party's

complaint was received through a telephone conversation with Respon-

dent and clearly in the absence of an officially signed complaint

by the party. Which is not even substantial evidence to determine

whether Relator had actually committed the alleged harassment with-

out showing any facts in support of an official complaint.

¶17. According to State law, satisfactory evidence must be produced

in the right to a jury trial and proved beyond a reasonable doubt

that the offender committed the crime. However, pursuant to Respon-

dent's unsubstantiated allegations, the misuse of telephone calls

of the validity, construction, and application under state criminal

statute RC 2917.21, forbids the use of telephone to annoy or harass

is a criminal offense and punishable by a sanction such as a fine

or penalty such as in various degrees of confinement depending on

the seriousness of the conduct. See, e.g., RC 2917.21(C), et seq.

This section broadens the prohibition to include all vexatious

phone calls such as making threats or harassments in circumstances

such as, i.e., aggravated menacing under RC 2903.21, knowingly cause

another to believe that the offender will cause serious physical

harm to the person.

¶18. Respondent's allegations that Relator committed a telephone

communications prohibited by an administrative discretion is just

merely an assumption and overbroad as to a restriction where there

is no institutional department policy or procedure found in regards

to telephone harassment complaints, except for the unauthorized

sample form that lacks the requisite "mens rea." See, the attached

EXHIBIT of the no contact form.

¶19. Respondent failed to cite Relator for a violative term either

of State law or that of an institutional DRC policy that would de-

monstrate any procedural requirements and a remedial process, other

than a conditional like of a probational styled conduct report

ensued upon violating the restriction of a disposition of an insti-

tutional rule infraction as defined under OAC 5120-9-06, implicating

rules 5120-9-07 and 5120-9-08 of the Ohio Administrative Code (OAC).

¶20. Statement of cognizable injury

In accord to institutional policies, which are subject to an

objective reasoning, inmates have a constitutional protection and

due process right to challenge a prison staff's official discretion

to a restriction sanction on a prisoner without conducting the pro-

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cedure for a disciplinary action process when charging an inmate

with a rule of conduct violation. See rule of the-OAC 5120-9-07

that governs the procedure for the issuance of a conduct report.

All OAC reviews are available on citation database computer-

assisted legal research under several resources, i.e., West Group,

Lexis Nexis, etc., et seqq.

¶21. Respondent had violated the inmatedisciplinary policy pro-

cedure where allegations implicated that a particular inmate rule

of conduct under OAC 5120-9-06 had been violated but Respondent

failed to charge Relator with a conduct rule violation when an in-

stitutional department staff official "employee who has reason to

believe that an inmate has violated an inmate rule (or rules) of

conduct may set forth such allegations on the form designed for

that purpose." Id., see Report at OAC 5120-9-07(B). That employee

shall [sic] submit the report which cites the specific rule or

rules in violation, with its rule number, and the facts supporting

the violation in writing to the hearing officer for determination,

which may refer the conduct report to the Rules Infraction Board

(RIB), and the documentation of action. See, OAC 5120-9-06. Instruc-

tions to this departmental procedure can be found for the inmates'

knowledge is provided in the Inmate Handbook under The Disciplinary

Process, or this Court may download OAC 5120-9-07, through anyone of

the resources aforementioned, supra. Which the inmates' institution-

al grievance procedure is not applicable in this situation.

¶22. And furthermore, pursuant to Section D-2, of the DRC Policy

56-DSC-01,states: "In situations where an inmate allegedly commits

an act covered by the criminal law, the case should be referred

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promptly to appropriate law enforcement officials for investigation

and consideration for prosecution." And under Section I, of this

policy institutes an Administrative Review and Appeals provided for

inmate conduct reports. See, DRC Policy 56-DSC-O1.

¶23. Overall, Relator was prejudiced by the Respondent's failure to

properly charge Relator with an infraction so that Relator may de-

fend the action(s) implicated against him. Also in which, Relator

is currently prejudiced by the imposition restricting Relator to be

unable to contact any person outside the prisoner's premises by the

means of either mail or telephone, esp. when contact with [a] person

regards legal matters that must be resolved by involving a communi-

cation contact, as where the service of process must be served upon

the individual party-defendant's unknown attorney representation.

¶24. Relator was further prejudiced by the misnomer in the com-

plainant-party's last name which should void the imposition order

prima facie on this ground alone because Relator has no way of chal-

lenging whether the misspelled name affects a relationship with the

pecuilar first name "Libra," that may be known to Relator as possi-

bly being his daughter Libby, aforesaid. See, 57 Am.Jur.2d, Name §

5, of the American Jurisprudence, Second Edition, Volume 57. But if

found true, Relator will also be prejudiced by his daughter's state-

ment whether Relator actuallyhad threatened or harassed Libby at all.

Which Libby's dishonesty presented false pretenses stemming from

Libby having in her possession of Relator's vehicle titles. Which is

feasibly evident for Libby to obtain the titles with intent to forge

the ownership is plausible when, as cited supra, that a friend of

Relator is supposedly keeping Relator's Van and Motorcycle where the

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Box Libby has was to be delivered for storage in Relator's Van

that contained not only just legal documents aforementioned, but

those titles of ownership that Relator now seeks to retrieve.

¶25. Statement of claim for relief

Respondent made no attempt to particularize any facts to sup-

port the order. And from such an unsubstantiated exercise of an

unauthorized administrative discretion amounts to manifest error

constituting an infringement upon due process, and among other

things that are prejudicial to prevent Relator from interposing

the authority of Respondent. Because there is no policy or bylaw

of an administrative rule to be found, nor an Ohio provisional re-

vised code statutory law to even permit an administrative discre-

tionary order of this kind, that is, without authorized enforcement

in law. Which wholly manifests arbitrary in the absent of due pourse

oflaw. Ultimately, the purported information given by the complain-

ing party is axiomatic in which is considered an imaginary and

fictitious reason of a pretextual ulterior motive because Respondent

received no supportive facts, that renders the no contact order de-

fective in the construction of written instruments or legal docu-

ments. Which are in like manner such as complaints that were adjudi-

cated injunctions, or protection and restraining orders, or even as

such as prohibitions, alike.

¶26. The injurious effect had incapacitated Relator to proffer any

refuting evidence contained in the recorded telephone conversations,

supra. To which Respondent will obviously try to defend for reasons

unrelated to dispute Relator's merits because of Respondent's lack

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of any supportive evidence.

¶27. However, if this Court concludes that the misnomer is the

complainant of Relator's daughter Libby, then this Court must issue

the writ in part to order Respondent to produce the evidence for

Relator exclusively found in the record of the GTL, supra, recorded

telecommunications between Relator and his daughter Libby from the

date of April 1, 2008, through to and including the telephone call

made on July 26, 2008, that wholly supports Relator's contention of

all of Relator's supportive facts to negate the no contact order.

¶28.. Relator is suffering at the very worst, a contingent injury by

which Respondent is further interfering with Relator's civil rights

to prevent Relator from ensuing a legal action lawsuit against his

daughter Libby, et al. The action involves an illegal conveyance of

Relator's personal property that was distributed with the estate of

the Decedent to file a claim in challenging the authority of a

fraululent [POA] instrument unlawfully conducted by the conveyance

of Relator's Box of property to Libby now denying possession of.

¶29. Wherefore, in any legal action suits requires service of pro-

cess of the complaint served upon the defendants, whereas Relator's

daughter Libby is a defendant. In which the failure of Relator's re-

quirement to serve defendants with a copy of complaint and summons

to answer is subject to a dismissal. But currently forbidding the

Relator to communicate with any litigator because of Respondent's

unjustified no contact order with a party involved is the party-

defendant, violates Relator's civil right codified by the due pro-

cess of law to prohibit Relator from filing a suit, inter alia,

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against the said no contact complainant "Hanl[o]n," whom maybe the

defendant.

¶30. According to RC 2921.45, interfering with civil rights under

division (A) provides, "No public servant, under color of his of-

fice, employment, or authority, shall knowingly deprive, or con-

spire or attempt to deprive any person of a constitutional or stat-

utory right." See division (B) of this section for penalty. And

plus see, Anderson's Ohio Manual of Criminal Complaints and Indict-

ments (2011), for Chapter 2921 of Offenses Against Justice and

Public Administration of 2921.45, when interfering with civil rights

under Division (A), "being a public servant connected to (identify

agency, department or institution) did, while acting under the color

of his/her office, authority or employment, knowingly deprive (or

conspire, or, attempt to deprive) of a constitutional (or, statu-

tory) right, to wit: (identity right and its legal source); in vio-

lation of Section 2921.45 of the Revised Code." Id.

¶31. Under federal law for example, "Before prison official can be

granted qualified immunity in civil rights suit brought by inmate,

court must decide whether inmate has identified clearly established

right alleged to have been violated and whether official reasonably

should have known that conduct at issue was undertaken in violation

of that right." See, NELSON vs. OVERBERG (CA6 (Ohio) 1993), 999

F.2d 162, 165 [No subsequent appellate history.], citing Johnson v.

Estate of Lacchedo (6th Cir.1991), 935 F.2d 109, 111.

¶32. According to the requirements to issue a writ for a mandamus

action, Relator clearly established in the foregoing illustration

that Relator is entitled to writ, such as e.g., LUNA, supra, where

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Relator has a clear due process legal right to the relief requested

because Respondent had illegally imposed an unofficial restraint

that resulted in violating Relator's civil rights, and by which the

no contact order is not authorized by any enforceable laws nor is

it sustained by a supportive regulation to even create a discre-

tionary procedure as such. From which the law of due process man-

dates that Respondent has a clear obligated legal duty to revoke

and expunge the sanction because it is unauthorized by constitu-

tional law and is not authorized by any administrative rule or

policy, nor by definition where the sanction is only devised by

Respondent's mere unsubstantiated administrative discretion. Where-

as, Relator is without any recourse of remedy in law to adequately

redress the issue or appeal because Respondent did not apply any

set of rules or principles dealing with the disposition of the pro-

ceedings that would implicate an arbitrary objective.

¶33. Relator, as a prisoner inmate, cannot appeal or protest, nor

even file an opposition in action, because Respondent does not have

a procedural right in the first instance to even impose a no con-

tact restriction without an existing protocol, policy, or any pro-

cedural law to sustain a violation had occurred. The no contact

imposition is therefore, demonstrated as void on its face.

DEMAND OF JUDGMENT FOR RELIEF

¶34. This Court must issue the writ forthwith to order Respondent

to void the no contact order and declare the imposition as nUiled

in toto, or require Respondent to present all evidence relevant to

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demonstrate whether Relator had actually committed an offense of

harassment, or similar circumstances, by either throughrthe mail

of the U.S. Postal Service or pursuant to a telecommunication

prohibition with purpose to abuse, threaten, or harass another

person.

¶35. Telephone harassment actually only violates the Ohio Rev.

Code Ann. § 2917.21, in which under this section ["RC"] is criminal

negligence of telecommunications harassment us a misdemeanor of the

first degreeon a first offense and a felony of the fifth degree on

each subsequent offense as provided by subsection (C) of this sec-

tion, in violation of division (A)(1), (2), (3), or (B). Which sub-

section (B) of RC 2917.21, states: "No person shall make or cause

to be made a telecommunication, or permit a telecommunication to be

made from a telecomiOunications device under the person's control,

"with purpose to abuse, threaten, or harass another person."" Id.,

RC 2917.21(B) (emphasis on inside quotations).

¶36. Thereby, telephone harassment also requires specific purpose

to cause emotional upset in the person at telephone number called

because reading into the required "purpose" to harass to constitute

a violation of the statute must be made solelytfl harass. In other

words, it is not enough merely to foresee that emotional upset is

likely consequence of even repeated phone calls which the actor must

purposely seek to cause, or must desire to cause, adverse emotional

reaction in person at number called. See, e.g., U.S. vs. TOBIN (DC,

NH 2008), 545 F.Supp.2d 189, aff'd (CA1, NH 2008), 552 F.3d 29

(telephone harassment pursuant to 47 U.S.C.S. § 223). What consti-

tutes an "interception" of a telephone or similar communication

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forbidden by the Federal Communications Act [47 U.S.C.A. § 605] or

similar state statutes. See, 9 A.L.R.3d 423.

¶37. Assuming arguendo, the relevant state statutes proscribing use

of telephone to annoy or harass are included telephone calls as

nuisance based on obscene or threatening telephone calls. See, 53

A:L.R.4th 1153. The term "annoy or harass" is considered broadly

and includes, for example, obscene or profane calls and those in-

tended are as threats in the context of statutes which require that

the forbidden language be used with the intent to annoy or offend

the recipient.

¶38. Courts have been reluctant to make a criminal case out of

family bickering over disputes, political squabbles, and discus-

sions of business matters. See, 95 A.L.R.3d 411, FN13. As to the

Supreme.Court's development, since Roth [v. U.S. (1957) 354 U.S.

476, reh den] of standards and principles determining the concept

of obscenity in the context of the right of free speech and press,

see the annotation at 41 L.Ed.2d 1257 (Table of Cases omitted),

L.ED.2d (2008), Ernest H. Schopler, S.J.D., J.U.D., LL.B. Whereas,

the character, nature, or connotation engaging in a rancorous con-

versation are expressions of a justified indignation without stif-

ling fundamental personal liberties. In which the right to communi-

cate to another in a reasonable manner without breaching the peace,

even though one may speak with the intention of causing a slight

annoyance in order to emphasize an idea or opinion or to prompt a

desired course of action that one is legitimately entitled to seek

is limited to amiable communications.

-18-

¶39. While recognizing that the state has a legitimate interest in

protecting the privacy of its citizens from unwanted telephone in-

trusions are found that the statute applied to any call made with

the intent to annoy to imply from the statutory language the re-

quirement that the call be made in an unreasonable manner regard-

less of the character of the conduct that subsequently occurred.

¶40. Overall, the misnomer (or misspelling of the complainant's

last name) clearly demonstrates that Respondent lacked the knowledge

of the information received from the party-complainant is also con-

ceded as unreliable information and shall be considered as unpro-

fessional conduct of Respondent. For which the received information

is arbitrary in its context and wholly unsupported by preponderance

of reliable evidence where the evidence is relied upon an ambiguous

source received by only word of mouth and is only mere ore tenus

evidence inadmissible in a court of law as hearsay evidence from

the Respondent's say-so.

¶41. Wherefore, a writ of mandamus will not be issued when there is

a plain and adequate remedy in the ordinary course of the law. But,

"in order for there to be an adequate remedy at law, the remedy

must be complete in its nature, beneficial, and speedy." See, e.g.,

STATE es rel. HORWITZ vs. CUYAHOGA CTY. COURT OF COMMON PLEAS, PRO-

BATE DIV. (1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009,

citing STATE ex rel. LIBERTY MILLS, INC. vs. LOCKER (1986), 22 Ohio

St.3d 102, 104, 488 N.E.2d 883, 885-886.

¶42. No other remedy is found available for this particular matter

as from a provisional authorized judgment or administrative decree

to enable an appeal. Because the imposition is predicated on false

-19-

pretense where no element of scienter is adduced.

¶43. Moveover, in accord to this Court in STATE ex rel. WILSON-

SIMMONS vs. LAKE CTY. SHERIFF'S DEPT. (1998), 82 Ohio St.3d 37,

40, 693 N.E.2d 789, 792, that "Civil Rule 56 motions for summary

judgments are clearly inapplicable in original actions in the Ohio

Supreme Court under the procedure specified in S.Ct.Prac.R. X [Sec.

10]. Following the submission of evidence and briefs under S.Ct.

Prac.R. X(6) and (7), the case is ready to be "tried" on the merits;

therefore, no summary judgment motion is necessary ar appropriate."

Id. (citation omitted)' contra-denoting State ex rel. Wilson vs.

Preston (1962), 173 Ohio St. 203, 181 N.E.2d 31, where this Court

had previously held that summary judgment procedure may be relied

upon in an action founded upon the extraordinary writ of mandamus

because the action is a civil action. But see, S.Ct.Prac.R. 10.5

(B), in response to complaint, "Neither party may file a motion for

summary judgment." Id.

¶44. Respondent engaged in a ruse and collusion with deliberate

intent to cause fraudulent documents and duress of a prisoner's

rights, inter alia. A prisoner has the right to expect prison of-

ficials to provide and follow policies and regulations and to con-

firm its actions to those procedures that it has adopted. The

State's action is not complete until and unless it provides, or

refuses to provide, a suitable post-deprivation remedy. In which

prisoners are entitled to be free from arbitrary actions of prison

officials that affect their constitutionally protected interests.

¶45. An unauthorized intentional deprivation of civil rights by a

-20-

state employee constitutes a violation of the procedural require-

ments of the Due Process Clause of the Fourteenth Amendment to the

Constitution of the United States, from denying due process and

equal protection, and from abridging the privileges and immunities

of U.S. citizenship. The amendment(s) also gave Congress the power

to enforce these provisions, leading to legislation such as the

civil rights act[s]. And as a general matter, the essential prin-

ciple of due process is that a deprivation of life, liberty, or

property be preceded by notice and opporunity for hearing appro-

priate to the nature of the case. But which, prisoners are less-

able to ascertain or procure a litigious discovery from directly

obtaining the evidence secured by the prison officials. Hence the

term "evidence secured by the prison officicals," is the downplay

of a prisoner's litigation.

¶46. Moreover,for an example, the State's interest in the context

of prison management is a dominant consideration in a procedural

due process analysis. Although the State's first obligation must

be to ensure the safety of guards and prison personnel, the public,

and the prisoners themselves. See, e.g., WILKINSON vs. AUSTIN, 545

U.S. 209, 227 (2005). However, visitation privileges may be cur-

tailed as punishment for disciplinary infractions, but such re-

strictions may not be so great as to infringe upon the inmate's

First Amendment rights to familial association and communications

and the Eighth Amendment right to be free of cruel and unusual

punishment. And furthermore, restrictions on visitation privleges

constitute a deprivation of liberty under the Due Process of the

Fourteenth Amendment and may be accompanied only in accordance

with the normal disciplinary procedures of the prison. See, e.g.,

LAAMAN vs. HELGEMOE (D.NH, 1977), 437 F.Supp. 269. But see, TURNER

vs. SAFLEY, 482 U.S. 78, 107 S.Ct. 2254 (1987), held four factors

were relevant in determining whether a prison regulation on affect-

ing a constitutional right that survives incarceration withstands

constitutional challenge. Id., at 89-91, 107 S.Ct. at 2261-63.

¶47. Prisoners are entitled to be free from arbitrary actions of

prison officials that affect their constitutionally protected in-

terests. Even in the prison context, a restriction is not reason-

ably related to a legitimate goal if it is arbitrary or purpose-

less. See, e.g., CALDWELL vs. MILLER (7th Cir. (Ill) 1986), 790

F.2d 589, 609. But see, TURNER, supra, requires prison authorities

to show more than a formalistic logical connection between a regu-

lation and a penological objective. 482 U.S. at 97-99.

¶48. Prisoners have a liberty interest in prison requirements but

without explanation or a review hearing imposes a "atypical and

significant hardship on the inmate and violates due process. In-

mates' constitutionally protected conduct is a substantial or

motivating factor in the discretionary decision of the prison of-

ficials' administrators is much like a retaliation claim when an

inmate suffers "adverse action" at the hands of the prison offici-

als without being provided a postdeprivation remedy.

¶49. Due process establishes a procedure whereby a court may order

any party to produce discovery and permit inspection of non-privi-

leged material which constitutes or contains any matter involved

in the action that are in the possession, custody, or control of

the prison administrators. See, General provisions governing dis-

covery under Civ.R. 26, of the Ohio Rules of Civil Procedure (CivR).

Which cannot be overly compensated by summary judgment in a mandamus

-22-

action when no trial by jury is held. See, S.Ct.Proc.R., Section 10.

¶50. "An essential principle of due process is that a deprivation

of life, liberty, or property be preceded by notice and opportunity

for hearing appropriate to the nature of the case." See, MULLANE

vs. CENTRAL HANOVER BANK & TRUST C0.,339 U.S. 306, 313, 70 S.Ct.

652, 656 (1950). "The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful

manner." See, MATHEWS vs. ELDRIDGE, 424 U.S. 319, 333, 96 S.Ct.

893, 902 (citations omitted). However, Relator was never afforded

the opportunity of a hearing prior to the imposition of the no con-

tact order. Thereby, a predeprivation hearing was denied.

¶51. The deprivation by state action of a constitutionally protect-

ed interest in life, liberty, or property is not in itself uncon-

stitutional, what is unconstitutional is the deprivation of such an

interest without due process of law. A constitutional violation is

not complete when the deprivation occurs, the state's action is not

complete unless and until the state fails to provide due process

or refuses to provide a suitable postdeprivation remedy. See, e.g.,

BORKINS vs. UNITED ;STATES POSTAL SERV. EMPLES (6th Cir. (Mich)

2004), 97 Fed.Appx. 32, 34, 2004 U.S. App. LEXIS 8310, ^F56.

¶52. In the proceedings sub judice for mandamus to command Respon-

dent to vacate the no contact order that disallows Relator to have

communications with said complainant named in the administratively

devised and self-executed form is wholly in the absence of a post-

deprivation remedy due process right that institutes a predepriva-

tion liberty interest prohibiting Relator to exercise an ensuing

action upon complainant. Whereas, a replevin action will show an

-23-

unlawful detention of Relator's property is being wrongfully held

by the [supposedly misnomer] complainant. As such, Relator's right

of possession of his own property may be recovered by an action in

replevin pursuant to the RC Chapter 2737. But under the current

circumstances of a prohibited contact violates a constitutionally

protected due process civil right to prosecute service of the re-

plevin complaint where the no contact order forbids Relator from

serving the complainant a copy in an ensuing legal action herefrom.

By which, there is no evidence to corroborate Respondent's unjust-

ified authority to even impose the restriction order, esp. without

a postdeprivation remedy procedure.

¶53. In addressing the propriety of the mandamus action in this

case herefor need not be determined whether Relator has a clear

legal right to the relief requested, which canbe established with

aetGa3nty, but lies within whether this Court finds that the Re-

spondent is under a clear legal duty to perform the requested act,

regardless whether Relator has any plain ar adequate remedy at law.

For which, Relator has satisfied the necessary elements to grant a

mandamus action in order to comport with substantive due process

standards. In such as for instance, an administrative agency rule

must have a reasonable relative to a proper legislative purpose

and be neither arbitrary nor discriminatory in its effect. See,

e.g., OHIO ACADEMY OF NURSING HOMES, INC. vs. BARRY (1990), 56

Ohio St.3d 120, 127, 564 N.E.2d 686, 693 (citations omitted).

¶54. Nevertheless, civil action rem^dy under Section 1983 [42 U.S.

C.S. § 1983] does not encompass official conduct that violates only

state law, rather, the statute is limited to deprivations of fed-

eral statutory and:constitutional rights. See, SHIROKEY vs. MARTH

-24-

(1992), 63 Ohio St.3d 113, 116, 585 N.E.2d 407, 410 (citations

omitted). And furthermore, "Section 1983 does not itself create

any constitutional righ•t-s; it creates a right of action for the

vindication of constitutional guarantees found elsewhere." Ibid.

(citations omitted). Thus for, a RC 2921.45 statutory claim,of

interfering with civil rights based on a state statute, 1983 does

not cover official conduct that violates only state law. See, ibid.

Because the state statute does not require a showing of prejudice

prior to seeking enforcement. Whereas, the claim herein is not

premised on that Respondent violated state statutory right to in-

voke the federal district court's 1983 jurisdiction. Instead, Re-

spondent has no codified prerequisite method. Thereby, Section

1983 does not provide an adequate remedy under the circumstances

claimed sub judice.

¶55. In the case of 1946 ST. CLAIR CORPw vs. CLEVELAND(1990), 49

Ohio St.3d 33, 34, 550 N.E.2d 456, 458-459, had set forth the

requisite elements of a Section 1983 claim. (citation omitted) See

again, SHIROKEY, supra, ibid. at 116, 585 N.E.2d at 410. For an

example, Section 1983, supra, must be preserved to remedy only

those deprivations which actually occur without adequate due pro-

cess of law, such as those which result from a state's conscious

decision to ignore the protections guaranteed by the Constitution.

Section 1983 maintains the delicate balance between the state and

federal judicial systems, leaving the former t;o,remedy individual

torts and the latter to address property deprivations which occur

without adequate due process protection. And to sufficiently allege

a violation of procedural due process under Section 1983, a plain-

-25-

tiff must challenge the fundamental fairness of state procedures

in the complaint. Then hereby, the 42:1983 civil action does not

provide an adequate legal remedy at law to preclude a mandamus

action in the instant cause of action.

ISSUANCE OF AN ALTERNATIVE WRIT

¶56. For the reason that follow, this Court may render that the

Respondent's administratively self-executed no contact order is

unconstitutional, illegal, arbitrary, capricious, unreasonable,

inter alia, and unsupported by preponderance of any substantial,

reliable, or probative evidence, in the absence of any clear and

convincing evidence as a whole. To which, however, for Respondent

to formally charge Relator with an unproved harassment complaint

by telecommunications, or either alleged by mail, whichever, the

Respondent must ascertain the production of facts essentialto the

preparation of Realtor's defense. Which is less than circumstantial

evidence of a criminal offense and not as reliable for a criminal

prosecution by a mere administrative restriction order that does

not sustain an offense pursuant to the RC 2917.21, telecommunica-

tions harassment. But mandates disclosure of material evidence

possessed by Respondent who must show an adequate reason justify-

ing a criminal intent was actually committed by Relator.

¶57. The instruments of discovery serve (1) as a device along with

the pre-trial hearings under [criminal] Rule 16, to narrow and

clarify the basic issues between the parties, and (2) as a device

for ascertaining the facts, or informatzon as to the existence of

whereabouts of facts, relative to these issues. See pertinent,

-26-

Pike and Willis, "The New Federal Deposition - Discovery Proce-

dure," 38 Col.L.Rev. 1179, 1436; Pike, "The New Federal Deposi-

tion - Discovery Procedure and the Rules of Evidence," 34 Ill.L.

Rev. 1; Federal Rules of Civil Procedure. But see, Discovery under

Civ.R. 26, for General provisions governing discovery by the Ohio

Rules of Civil Procedure (CivR).

CONCLUSION

158. WHEREFORE, absent any admissible evidence would invalidate

the no contact order solely on the ground of vagueness of a con-

stitutionally protected expression. And without an adequate just-

ification in light of the FirstAmendment substantiates compelling

reaso.n:to vacate the imposition because of an unwritten prison

policy, which is further subject to strict judicial scrutiny. And

whereas, an unauthorized prison restriction as in the instant cause,

the no contact order imposed against Relator is evident of a pre-

text to obscure a collusion to forge signatures on Relator's ve-

hicle titles. From which Relator cannot procure these facts for

evidence because of an institutional disciplinary action will result

if Relator attempts to serve the [possibly known] party-complainant,

named in the complaint as maybe Relator's daughter "Libby" whom

Relator must file and serve the defendant in an ensuing legal ac-

tion who is conceded as the no contact order tlomplainant. And if

Relator would follow through with pursuing his legal proceedings

against Libby would jeopardize the process of service and subject

Relator as an inmate to the prison disciplinary process with an

-27-

immediate segregation confinement.

¶59. Nonetheless, the demonstration indicates that Respondent had

imposed atypical and significant hardship on Relator in relation

to the ordinary incidents of the prison requirements that give rise

to the protection by the Due Process Clause of its force and effect

guaranteed in the word "liberty" and the expectation or interest

created by state laws or policies to invoke those procedural pro-

tections to establish that an interest is at stake.

¶60. Thereby, a judgment in favor of Relator would sustain a post-

deprivation remedy and legallyperm?'t Relator to pursue related prb-

ceedings in a court of law on other matters that are currently pro-

hibited because of Respondent's sanctioned imposition enjoins Re-

lator from having any contact with the complainant is a constitu-

tional violation of the First, Fifth, and Fourteenth Amendments to

the Constitution of the United States, and the Ohio Constitution

under Article I, Bill of Rights sections 2 (Equal Protection), 11

(Freedom of Speech), and 16 (Due Process).

¶61. THEREFORE, pursuant to Sup.Ct.Prac.R., under Rule 10.6,that

an alternative writ shall issue to schedule the presentation of

evidence with the filing of the merit briefs as required for the

presentation of the evidence under Rule 10.7, unless this Court

orders otherwise. Which this Court may issue the alternative writ

so that Respondent will have to comply to the requirements of pre-

senting all evidence that has probative value and relevant to this

case for the cause and reason to be brought to light whether Re-

spondent can warrant a non-written restriction policy to even en-

-28-

able the imposition of the no contact / correspondence order in

this matter to justify a penology regulation.

¶62. Relator request that this Court would otherwise, require Re-

spondent to either produce supporting material evidence or mandate

Respondent to null and void the no contact regulation and vacate

the restriction imposed against Relator.

Respectfully submitted byPAUL ,$DW-4RD BUNTI,NG,

Signed and dated

o n : 5-1 '2--> > z-

ul dward Bunting, PI 11395-279

Belmont Correctional nstitution

68518 Bannock Road, P.O. Box 540

St. Clairsville, OH 43950-0540

RELATOR, in propria persona.

Scg*--Vk ^00

^^ cQY^r ^-//v

lrr-,%ct Order to C-easeCorres.. on dence/Contact

Inmate Name:

Bunting, Paul E

Inmate Number:

A-395279

Institutlon:

Belmont Correctional Institution

- Reg-ulatton 51-20-9-18, paragraph F=fi, and Inmate Rules of Conduct, 5120-9--

Administrative-06, Rule 55, prohibits inmates from the following : Corresponding with any person(s) after theinstitution has determined that specific individuals are being or liave been harassed or threatenedby a particular inmate and the inmate lias been notified the individual(s) do not wish to receive

correspondence, i.e. letters, teleph- one-calls, eto..

We are in receipt of information fromLibra Hanlon

who has indicated that he/she does not wish to receive correspondence from you. It has been

determined that this request falls under the above Administrative Rule.

Therefore, Youare ordered to cease all corres ondence/contact vwith this erson.

Faiture to cease corresponding will result in disciplinary action being taken against you for viola-

tionof Rule 21, Disobedience of a Direct Order. In accordance with AR 5120-9-18, and Inmate

Rules of Conduct, 5120-9-06, Rule 55, and DRC Policy 76-VIS-02, Inmate Access to theTelephone, VI.5., continued violation could result in restrictions of your mail and phone privileges.

Deputy Warden or Desig^

I acknowledge receipt of the above direct order.

Inmate^

DISTRIBUTION:

q I,ivnate refused to sign

"-^ GREEN - InmateWHITE - Master File BLUE - Victiin Coordinator GOLDENROD - Deputy WardenCANARY - Unit File PINK - MailNisiting Supernsor

DRC 2575 E ( Rev. 09I05)

EXHIBIT

STATE OF OHIO )COUNTY OF BELMONT )

Ss

AFFIDAVIT OF THE RELATOR

SPECIFYING DETAILS OF CLAIM

I, pro se Relator Paul Edward Bunting, the undersigned affiant i;nhereto of the accompanied complaint for a writ of mandamus in theoriginal action, do hereby depose and declarea:fter being first dulysworn under oath and cautioned as required by law pursuant to'fals-ification of the RC Section 2921.13(A)(6), Ohio Revised Code (RC),as in accord to the Rules of Practice of the Supreme Court of Ohiounder Rule 10.4(B) that the complaint which the claim for relief isbased is made on personal knowledge, setting forth facts admissiblein evidence, and affirmatively showing that Relator is competent totestify to all matters stated herein as in the following manner.

1). I am the real party applicant for a writ in the interestof whom in the name of the state on relation to bring suit;2). I have personal knowledge gained through firsthand obser-vation and experience of any reliable matters in the capacityof competence to testify as a lay-witness upon material factsof admissible evidence that may be relevant of such character;3). I assert that all attached exhibited documents are genuineand truely authenticated to be admitted as material evidence;4). I specifically aver that the institutionally recorded tele-phone conversations that occurred during 4-1-08 to 7-26-08 areexculpatory evidence to bring light upon negating the allegedcircumstance regarding the imposition of the no contact order;5). I state in accord that the Ohio Supreme Court's case inState ex rel. Madison v. Cotner (1981), 66 Ohio.St.2d 448, haddeclared the RC 2731.04 requirements of a mandamus be verifiedby an affidavit is no longer applicable which has been dis-

placed by Civil Rule 11 (amended, eff. 1-1-08);6), I also state that the RC section of 2969.25 under divisions(A)[affidavit of previously filed civil actions] & (C)[waiverof repayment contain account balance certified by cashier] donot apply to a writ instituted in an original action when filedin the Ohio Supreme Court under the rule section 10;7). I further state that I swore to the accuracy of the factsin the complaint that those facts are based on my own personalknowledge and affirmatively establish that I have reviewed thefacts contained in the foregoing Complaint For A Writ Of Man-damus satisfies the requirement of the Supreme Court rule ofpractice where there_is no need to repeat those statements inthis affidavit verified by my true signature appearing below.

FURTHER, Affiant sayeth naught.

SVQ*1,.;,,,T0 AND SUBSCRIBED IN MY PRESENCE, on

uE A L Jay MlaqqerNotary Pubi€c

; n Stme of Ohio!SS1oP? EXi;fres

-(01-I

NOTARY PUBLIC

MY COMMISSION EXP

IN THE SUPREME COURT OF OHIQ

PAUL EDWARD BUNTING, #395-279

without the necessary funds to pay the costs of this action for the following reasons:

I am incarcerated in the State correctional institution

and after being duly oautioned and sworn to under oath, depose

and say I do not have any monies, bonds, property or anything

else of value to post as security, and for all practical

purposes should be considered a true pauper.

Pursuant to Rule XV, Section 3, of the Rules of Practice of the Supreme Court of

Ohio, I am requesting that the filing fee and security deposit, if applicable, be waived.

Swom_ to, or affirmed, and subscribed in my presence this

(Note: this affidavit must be executed not more than one year prior to being filed in the

Supreme Court in order to comply with S. Ct. Prac. R. XV, Sec. 3.1