State ex rel. McNew v. Ohio Dept. of Rehab. & Corr.State ex rel. McNew v. Ohio Dept. of Rehab. & Corr.
On brief: Dave Yost, Attorney General, and George Horvath, for respondent.
IN MANDAMUS
ON OBJECTIONS TO MAGISTRATE‘S DECISION
D E C I S I O N
Rendered on January 16, 2024
BOGGS, J.
{¶ 1} Relator, Michael A. McNew, filed this original action for a writ of mandamus on January 27, 2023. McNew requests a writ ordering respondent, Ohio Department of Rehabilitation and Correction (“ODRC“), to provide him with a copy of a Risk Assessment Report (“report“) and any other relevant documents regarding McNew that ODRC possesses and does not consider confidential. McNew also requests that this court award him the costs of this action as damages, pursuant to
{¶ 2} On March 28, 2023, ODRC filed a motion to dismiss this action pursuant to
{¶ 3} Pursuant to
{¶ 4} McNew has filed objections to the magistrate‘s decision, pursuant to
{¶ 5} Because relator has filed objections to the magistrate‘s decision, we must independently review the record and the magistrate‘s decision to determine whether “the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 6} In his first objection, McNew objects to the magistrate‘s reliance on matters outside the face of his complaint—particularly the unauthenticated exhibit attached to ODRC‘s motion to dismiss—to determine that McNew‘s claim for a writ of mandamus was moot.
{¶ 7} The magistrate correctly noted the standard for reviewing a
{¶ 8}
When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
Thus, in previous cases in which a respondent has moved to dismiss an original action as moot, based on the respondent having supplied the relator with requested records, this court has converted the motions to dismiss to motions for summary judgment. See, e.g., State ex rel. McCarley v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-337, 2022-Ohio-3397, ¶ 18; State ex rel. Simonsen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 08AP-21, 2008-Ohio-3174.
{¶ 9} As an exception to the general rule precluding consideration of material outside the complaint itself, a court may “take judicial notice of appropriate matters in determining a
{¶ 10} In our independent review of the magistrate‘s decision here, we conclude that, unlike in Womack and Ohio Republican Party, we may not take judicial notice of the fact, suggested by ODRC, that it has provided McNew with a copy of the report he seeks. This case is more akin to State ex rel. Simonsen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 08AP-21, 2008-Ohio-3174, in which an inmate relator sought a writ of mandamus ordering ODRC to answer his request for public records. ODRC filed a motion to dismiss, in which it stated that it had given the relator all documents responsive to his public records request. ODRC attached to its motion a cover letter that purportedly accompanied its production of the records. Even after the assigned magistrate converted ODRC‘s motion to dismiss to a motion for summary judgment, we held that judicial notice of ODRC‘s purported compliance with relator‘s public-records request would not be proper, because “[t]he adequacy of ODRC‘s response to relator‘s public records request meets neither of” the criteria set out in
{¶ 11} Here, ODRC attached to its motion to dismiss an unauthenticated copy of a document that purports to demonstrate McNew‘s receipt of the report he seeks through his claim in mandamus. As in Simonsen, however, ODRC‘s response does not present a “fact” of which this court may take judicial notice under
{¶ 12} Because ODRC‘s motion to dismiss was based entirely on information outside the complaint, of which this court may not take judicial notice, we sustain McNew‘s first objection to the magistrate‘s decision. ODRC‘s motion must be converted to a motion for summary judgment, pursuant to
{¶ 13} In light of our ruling on McNew‘s first objection to the magistrate‘s decision, his second objection—that the magistrate erred by not addressing his argument that his mandamus claim is not moot because it presents an issue that is capable of repetition, yet evading review—and his third objection—that the magistrate erroneously failed to rule on his demand for damages pursuant to
Objections sustained in part and overruled as moot in part; matter remanded to magistrate for further proceedings.
LUPER SCHUSTER and LELAND, JJ., concur.
Dave Yost, Attorney General, and George Horvath, for respondent.
IN MANDAMUS
ON RESPONDENT‘S MOTION TO DISMISS
M A G I S T R A T E ‘S D E C I S I O N
Rendered on July 6, 2023
{¶ 14} Relator, Michael A. McNew, has filed this original action seeking a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and Correction (“ODRC“), to provide relator with a copy of the Risk Assessment Report (“report“) regarding relator and any other relevant documents ODRC possesses regarding relator that ODRC does not consider to be confidential.
Findings of Fact:
{¶ 15} 1. Relator is a prisoner incarcerated at Madison Correctional Institution.
{¶ 16} 2. ODRC is a public office responsible for, among other things, operating the Ohio prison system.
{¶ 17} 3. Relator filed his petition for writ of mandamus with this court on January 27, 2023.
{¶ 18} 4. In the petition, relator alleges that he is serving a prison term of 15 years to life for a conviction under
{¶ 19} 5. On March 7, 2023, ODRC provided relator with a copy of the report.
{¶ 20} 6. On March 28, 2023, ODRC filed a motion to dismiss, pursuant to
{¶ 21} 7. On April 20, 2023, relator filed a memorandum in opposition and a motion to file instanter, which is granted.
Conclusions of Law:
{¶ 22} For the reasons that follow, it is this magistrate‘s decision that this court grant ODRC‘s motion to dismiss.
{¶ 23} In order for this court to issue a writ of mandamus, a relator must ordinarily show a clear legal right to the relief sought, a clear legal duty on the part of the respondent to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 24}
{¶ 25} A motion to dismiss pursuant to
{¶ 26} The magistrate may take judicial notice of the pleadings and orders in related cases when these are not subject to reasonable dispute, at least insofar as they affect the present original action. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199, 2020-Ohio-2690, ¶ 33, citing
{¶ 27} Mandamus may not be used to compel the performance of a duty that has already been performed. Martin v. Judges of the Lucas Cty. Court of Common Pleas, 50 Ohio St.3d 71, 72 (1990), citing State ex rel. Breaux v. Court of Common Pleas, 50 Ohio St.2d 164 (1977).
{¶ 28} In the present matter, because ODRC has now performed the act that relator sought to compel, i.e., providing relator the requested report, the matter is moot and mandamus will not lie.
{¶ 29} Accordingly, the magistrate recommends that this court grant relator‘s motion to file instanter his memorandum in opposition, and grant ODRC‘s motion to dismiss relator‘s petition for a writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III