[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Russell v. Dept. of Rehab. & Corr., Slip Opinion No. 2018-Ohio-2693.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-2693
THE STATE EX REL. RUSSELL, APPELLANT, v. DEPARTMENT OF
REHABILITATION AND CORRECTION, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Russell v. Dept. of Rehab. & Corr., Slip Opinion
No. 2018-Ohio-2693.]
Mandamus—Relator cannot raise new issues on appeal—Court of Appeals’
decision affirmed.
(No. 2017-1323—Submitted January 23, 2018—Decided July 11, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 17AP-125.
________________
Per Curiam.
{¶ 1} Appellant, Mark Russell, appeals the judgment of the Tenth District
Court of Appeals denying his motion to waive court costs. For the reasons set forth
below, we affirm the judgment of the court of appeals and deny Russell’s motion
to appoint counsel.
SUPREME COURT OF OHIO
Background
{¶ 2} Russell is a prisoner confined at the Warren Correctional Institution
in Lebanon, Ohio. On February 17, 2017, he filed a complaint for a writ of
mandamus in the Tenth District Court of Appeals to compel the Department of
Rehabilitation and Correction (“DRC”) to have its Use of Force Committee review
a correction’s officer’s alleged deployment of a chemical spray in Russell’s face
that caused severe burns. Russell also sought a waiver of the prepayment of filing
fees.
{¶ 3} The Tenth District Court of Appeals referred the matter to a
magistrate. On February 27, 2017, the magistrate recommended that the court
dismiss the complaint sua sponte because Russell had failed to comply with the
requirements of R.C. 2969.25(C) governing inmate requests for waivers of filing
fees. On March 14, 2017, the DRC filed a motion to dismiss, based on the same
R.C. 2969.25(C) argument.
{¶ 4} Russell did not file an objection to the magistrate’s recommendation
or a memorandum in opposition to the DRC’s motion to dismiss. The court adopted
the magistrate’s recommendation to dismiss the case sua sponte, and it denied as
moot the DRC’s motion to dismiss. 10th Dist. Franklin No. 17AP-125 (June 20,
2017). The court formalized its decision in a judgment entry filed June 22, 2017,
in which it assessed costs against Russell.
{¶ 5} On August 25, 2017, Russell filed a motion asking the court of appeals
to waive all court costs and filing fees on the ground that he has previously been
declared indigent. The court denied the motion to waive costs on August 29.
{¶ 6} On September 21, 2017, Russell filed a notice of appeal to this court.
His notice of appeal makes clear that the only subject of his appeal is the court of
appeals’ August 2017 entry denying his motion to waive costs. On November 3,
2017, he filed his merit brief, along with a motion for the appointment of counsel.
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January Term, 2018
The motion for appointment of counsel
{¶ 7} Russell’s motion for appointment of counsel states that “this case
deserves the attention of a licensed Attorney because it raises a Constitutional
Question that needs to be litigated to its full potential.” However, “[t]here is no
generalized right of counsel in civil litigation.” State ex rel. Jenkins v. Stern, 33
Ohio St.3d 108, 110, 515 N.E.2d 928 (1987). Russell’s belief that he has a
constitutional interest to vindicate does not create a right to appointed counsel, and
he has cited no legal authority in support of his request.
{¶ 8} We deny the motion to appoint counsel.
The merits of the appeal
{¶ 9} In his sole proposition of law, Russell contends that garnishments
from inmate accounts should be governed by the same procedural rules and
protections applicable to judgment debtors in civil court. And, he asserts, by
garnishing his account without following statutory collection procedures, the DRC
and the court of appeals are violating his state and federal due process rights.
{¶ 10} Russell’s appeal suffers from the same procedural defect identified
in State v. Dalton, 6th Dist. Williams No. WM-10-011, 2011-Ohio-362. Dalton
was convicted of a felony, and at his sentencing, the trial court imposed court costs.
Id. at ¶ 6. He later filed a pro se motion for a waiver of costs, which was denied.
Id. at ¶ 2. He appealed, arguing that (1) the court erred in denying him his waiver
and (2) the garnishing of his inmate account was being conducted in an
unconstitutional manner. Id. at ¶ 4-5, 14. After disposing of his challenge to the
assessment of costs on res judicata grounds, id. at ¶ 12, the court of appeals
addressed his constitutional claim.
[A]ppellant argues that the procedures used to garnish his inmate
account to pay court costs violated his right to due process of law
under both the United States Constitution and the Constitution of the
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SUPREME COURT OF OHIO
State of Ohio. However, the assignment of error raises issues
beyond the scope of this appeal. This appeal concerns claimed trial
court error in its denial of appellant’s “motion to vacate court costs
due to indigency forthwith.” Appellant made no argument in the
trial court that improper attachment or garnishment procedures were
employed against him. He also sought no relief based upon any
claim such procedures were used against him.
Id. at ¶ 14.
{¶ 11} Russell does not argue that the court of appeals abused its discretion
when it denied his motion for a waiver of costs. See Rayess v. Staton, 2d Dist.
Montgomery No. 26683, 2015-Ohio-5169, ¶ 2 (“A court has discretion over the
issue of whether a person is indigent, and thus whether to waive filing fees and
costs”). His merit brief is devoted entirely to the proposition that the DRC is
violating the law in the manner by which it conducts garnishments. In fact, the
relief he seeks is not a reversal of the Tenth District’s decision, but an order
compelling the DRC to restore all funds taken from his account.
{¶ 12} In a mandamus action, a relator “waive[s] new claims that he raises
on appeal by failing to raise them in his original or amended petition.” State ex rel.
Scruggs v. Sadler, 102 Ohio St.3d 160, 2004-Ohio-2054, 807 N.E.2d 357, ¶ 6.
Russell’s mandamus petition did not challenge the DRC’s manner of conducting
garnishments, and he cannot raise the issue for the first time on appeal.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
DEGENARO, J., not participating.
_________________
Mark Russell, pro se.
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January Term, 2018
Michael DeWine, Attorney General, and Byron D. Turner, Assistant
Attorney General, for appellee.
_________________
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