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OHIO ex rel. MARTIN v. COLLINS 

D E C I S I O N

Rendered on September 24, 2009 . . .

Relator, Robert Martin ("relator"), an inmate incarcerated at the London Correctional Institution, commenced this original action requesting this court to issue a writ of mandamus ordering respondent, Terry Collins, Director of the Ohio Department of Rehabilitation and Correction ("respondent"), to permit relator and fellow inmates incarcerated prior to March 1, 2009, the right to smoke and use tobacco products while incarcerated. . . .

Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who considered the action on its merits and issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommended dismissal of relator's complaint. First, the magistrate concluded that R.C. 3794.01 through 3794.04 do not grant relator a clear legal right to smoke and determined that respondent is entitled to judgment as a matter of law. . . .

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

Rendered on May 21, 2009 . . .

As respondent states in its motion, there is no clear legal right to smoke and relator has misconstrued the Smoke Free Workplace Act in an attempt to assert such a right. Further, relator's reliance on Ohio Adm.Code 5120-9-33, which deals with the right to possess certain items of personal property, is also misconstrued and has no relevance whatsoever to the use of tobacco products. After viewing the complaint and the allegations and reasonable inferences therefrom in the light most favorable to relator, the nonmoving party, it is this magistrate's conclusion that respondent is entitled to judgment as a matter of law.

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