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
d
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
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