Johns v. AllenJohns v. Allen
Dennis Watkins, Trumbull County Prosecutor, LuWayne Annos, Assistant Prosecutor, and Lynn B. Griffith, III, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Respondents).
PER CURIAM.
{¶1} This action in mandamus is presently before this court on the Motion for Dismissal or in the Alternative Motion for Summary Judgment of respondents, Trumbull County Clerk of Courts Karen Infante Allen, Trumbull County Prosecuting Attorney Dennis Watkins, and Trumbull County Assistant Prosecuting Attorney Diane Barber. As the basis for this Motion, respondents maintain that the Petition of relator, Elise Johns, fails to state a claim upon which a writ can be granted because her request for public records is moot. For the following reasons, respondents’ Motion has merit and, accordingly, relator’s Petition is dismissed.
{¶3} In moving to dismiss relator’s claim, respondents have raised several arguments. They assert that the claim is moot, since respondents have agreed to provide all available records to relator. In support, respondents attached a letter they assert has been mailed to relator, dated February 21, 2013, which stated that the public records were available for the relator to view and copy at the courthouse.
{¶4} Relator did not file a response to the Motion to Dismiss.
{¶5} As an initial matter, respondents emphasize that relator failed to properly caption her petition and this is grounds for dismissal. “The failure to caption an original action properly constitutes sufficient grounds for dismissing the petition.” (Citation omitted.) Snype v. Enlow, 11th Dist. No. 2011-P-0096, 2012-Ohio-1272, ¶ 4; see also Allen v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 227, 181 N.E.2d 270 (1962).
{¶6} However, even if relator had properly captioned her petition, respondents would still be entitled to judgment as a matter of law.
{¶8} In the present matter, relator has asserted in her Petition that she has not received the records she requested. Since this is a motion to dismiss pursuant to Civ.R. 12(B)(6), this court must rely on the factual allegations in the Petition and accept these allegations as true.
{¶9} Mandamus is a writ issued to a public officer to perform an act “which the law specially enjoins as a duty resulting from an office.”
{¶10} This court has found that, although it would usually be inappropriate to consider evidentiary materials in ruling on a motion to dismiss under Civ.R. 12(B)(6),
{¶11} In the present matter, we find that dismissal of the Petition against respondent Allen is warranted. There is an adequate remedy at law through respondent’s agreement to provide all available documents to relator. The letter sent to relator specifically stated that she could come to the courthouse to review the case file and would be allowed to make copies of the documents in the file. Under
{¶12} Since respondent Allen has agreed to provide access to the documents in the court file and did not deny relator’s request as to these items, relator’s request is moot. State ex rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400, 401, 678 N.E.2d 557 (1997) (“provision of the requested records to the relator in a mandamus action brought under
{¶13} We emphasize that relator, who filed no responsive pleading to the Motion to Dismiss, did not deny the assertion that she was sent the letter and was provided access to the documents she requested through access to the court file. She also attached Allen’s letter to a subsequent filing, a response letter she wrote to Allen, acknowledging that she received the letter. Relator’s failure to deny the assertions that she was able to view the records at any time and her acknowledgment that she received the letter informing her of this makes her unable to deny that the material is being provided to her. See Darling at ¶ 23 (“In her responsive pleadings, relator has never denied or otherwise challenged the assertions contained in this notice. Therefore, it is not refuted that a significant amount of material has been made available to relator that, for whatever reason, she simply refuses to pick up. This puts relator in a position where she is unable to deny that the material has been provided to her.”).
{¶14} Further, relator has not been denied access because she has not attempted to obtain the documents that respondents have agreed to make available. Relator has made no assertion that this compliance by the respondents does not meet her needs, that certain documents are not being made available, or that respondents’ action is insufficient to fulfill their statutory duty. The only response to the letter was a
{¶15} In regards to the other respondents, Watkins and Barber, they argue that they were never given a public records request and, therefore, they cannot be said to have denied such a request. A document attached to relator’s Petition, a photocopy of certified mail that was returned to relator, showed that delivery was attempted but the mail carrier was unable to forward the request. Relator concedes that this letter was undelivered. Further, relator asserts that she attempted to serve the respondents but does not affirmatively allege that such service was completed. Since relator has failed to allege that respondents Watkins and Barber actually received a public records request, we find that they had no duty to prepare or make available public records being sought by relator. See State v. Bush, 11th Dist. No. 2001-T-0042, 2001 Ohio App. LEXIS 4511, *3 (Oct. 5, 2001) (a person seeking access to public records under
{¶16} For the foregoing reasons, the dismissal of relator’s Petition is justified under Civ.R. 12(B)(6) because she has failed to state a viable claim for any requested relief and the matter is moot. Respondents’ Motion to Dismiss is granted. It is the order and judgment of this court that relator’s Petition for Writ of Mandamus is hereby dismissed in its entirety.
TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., THOMAS R. WRIGHT, J., concur.