State ex rel. Sultaana v. MedCare AmbulanceState ex rel. Sultaana v. MedCare Ambulance
On brief: Karen M. Cadieux, and Theodore M. Munsell, for respondent.
DECISION
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE‘S DECISION
DORRIAN, J.
{1} Relator, Amirah Sultaana, commenced this original action in mandamus seeking a writ ordering respondent, Medcare Ambulance (“Medcare“), to comply with her public records request and to correct certain patient records.
{2} Pursuant to
{3} Relator has filed the following five objections to the magistrate‘s decision:
[I.] Respondent did not attach any affidavit in its dismissal demand swearing, under oath that it‘s entity is not applicable to the mandates of
Ohio Revised Code 149.43 .[II.] Relator objects that the fact the magistrate did not take judicial notice on the appropriate matter if the respondent is a public record office pursuant to
R.C. 149.43 .[III.] Relator asserts once she noted in her complaint/affidavit she sought an order to compel to her Ohio public record request the minimum notice was provided.
[IV.] Objection to magistrate lodged case laws on page 9 (OAS19-R41) in support to his decision because the cases are not original actions but regular civil cases where mandated affidavits of verity are not required at time of filing of complaint.
[V.] Relator objects to magistrate bootstraping her public record request to her “in addition” claim to have respondent correct its patient records.
(Sic passim.)
{4} In her first objection, relator asserts Medcare failed to support its motion to dismiss with an affidavit attesting it is not subject to the Public Records Act. As explained in the magistrate‘s decision, a motion to dismiss for failure to state a claim is procedural and tests the sufficiency of the complaint. State ex rel. Cartwright v. Ohio Adult Parole Bd., 10th Dist. No. 20AP-62, 2021-Ohio-923, ¶ 7. A party moving to dismiss for failure to state a claim ” ‘may not rely on allegations or evidence outside the complaint; otherwise, the motion must be treated, with reasonable notice, as a
{5} Relator‘s second objection asserts the magistrate failed to take judicial notice of Medcare being the functional equivalent of a public office. As explained in the magistrate‘s decision, the Supreme Court of Ohio has held that “[p]rivate entities are not subject to the Public Records Act absent a showing by clear and convincing evidence that the private entity is the functional equivalent of a public office.” State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, paragraph one of the syllabus. The Oriana House decision sets forth a multi-factor functional equivalency test to be used when determining whether a private entity constitutes a public office for purposes of the Public Records Act. Id. at paragraph two of the syllabus. Relator argues the magistrate should have taken judicial notice that Medcare was the functional equivalent of a public office because it is engaged in providing medical transportation services.
{6} Under
{7} Relator‘s third objection asserts she satisfied the requirements of notice pleading by citing the Public Records Act in her complaint. Ohio is a notice pleading state, which requires a plaintiff to allege sufficient facts to give the defendant fair notice of a claim. Wiltz v. Accountancy Bd. of Ohio, 10th Dist. No. 14AP-645, 2015-Ohio-2493, ¶ 13. ” ‘[T]o constitute fair notice, the complaint must allege sufficient underlying facts that relate to and support the alleged claim; the complaint may not simply state legal conclusions.’ ”
{8} To obtain a writ of mandamus compelling compliance with the Public Records Act, “the requester must demonstrate that the requester has a clear legal right to compel the public office or person responsible for public records to allow the requester to inspect or copy the public record and that the public office or person responsible for public records has a clear legal duty to do so.” Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, ¶ 24. Thus, “[i]n a mandamus-enforcement action, the [public records] requester‘s basic burden of production is to plead and prove facts showing that he or she requested a public record pursuant to
{9} In her fourth objection, relator objects to the magistrate‘s citation of non-mandamus decisions in support of his decision. The magistrate cited civil case decisions not involving mandamus claims in his discussion of the standard for a motion to dismiss under
{10} Finally, in her fifth objection, relator objects to the magistrate “bootstrapping” her public records claim to her claim for correction of patient records. Relator appears to assert these were separate claims raised in her complaint and admits that the Public Records Act does not provide for correction of records. Relator‘s complaint appears to assert an “additional” claim requesting that Medcare correct Hakeem Sultaana‘s patient records; however, other than a broad reference to the Public Records Act, the complaint does not allege any basis for a clear legal right to have those records corrected or a clear legal duty on the part of Medcare to provide that relief. Therefore, the magistrate reasonably construed relator‘s complaint as asserting the Public Records Act as the basis for this relief. Because, as relator concedes, the Public Records Act does not provide for correction of records, the magistrate properly concluded relator‘s claim for correction of records failed to state a claim upon which relief could be granted. Accordingly, we overrule relator‘s fifth objection.
{11} Upon review of the magistrate‘s decision, an independent review of the record, and due consideration of relator‘s objections, we find the magistrate has properly determined the pertinent facts and applied the appropriate law. We therefore overrule relator‘s five objections to the magistrate‘s decision and adopt the magistrate‘s decision as our own, including the findings of fact and conclusions of law contained therein. Accordingly, respondent‘s motion to dismiss is granted, and relator‘s complaint for a writ of mandamus is dismissed.
Objections overruled; motion to dismiss granted; action dismissed.
BEATTY BLUNT, P.J., and BOGGS, J., concur.
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
[State ex rel.] Amirah Sultaana, Relator, v. Medcare Ambulance, Respondent. No. 23AP-95 (REGULAR CALENDAR)
MAGISTRATE‘S DECISION Rendered on April 24, 2023
Amirah Sultaana, pro se.
Carpenter Lipps LLP, Karen M. Cadieux, and Theodore M. Munsell, for respondent.
IN MANDAMUS ON RESPONDENT‘S MOTION TO DISMISS
{12} Relator, Amirah Sultaana, has filed this original action seeking a writ of mandamus ordering respondent, Medcare Ambulance, to comply with her public records request pursuant to
I. Findings of Fact
{13} 1. Relator is an individual residing in Ohio who sought records from respondent.
{14} 2. Respondent is an entity engaged in medical transportation services.
{16} 4. In her complaint, relator sought an “order to compel respondent * * * to compel [sic] with her Ohio Public Record Request and to do its duty under the mandamus prongs of this state.” (Emphasis removed.) (Compl. at 5.) Relator stated that “attached are all of Relator‘s Ohio Public Records Request to Respondent.” (Emphasis removed.) (Compl. at 5.) Additionally, relator sought “an order from this Court to compel [respondent] to correct its patient records pertaining to her son Hakeem Sultaana‘s July 2nd, 2022 service.” (Emphasis removed.) (Compl. at 5.) Relator further stated that “the critical issues seeks that this Court compel [respondent] to provide her with her public record office request and to correct that her son Hakeem Sultaana was not mentally capable or physically capable to make decisions and that he had no next of kin on respondent‘s July 2nd, 2022 patient record run sheet.” (Emphasis removed.) (Compl. at 5.) Relator stated she “has a clear legal right to her public record request / compel request to be performed by Respondent since its [sic] their duty under law.” (Emphasis removed.) (Compl. at 5.)
{17} 5. In the affidavit of verity attached to her complaint, relator stated the following:
I, Amirah Sultaana, seeks an order from this Court to compel MedCare Ambulance dba MedF[l]ight of Ohio to provide her with lawful Ohio Public Record Request pertaining to her son Hakeem Sultaana July 2nd, 2022 services rendered by MedCare Ambulance dba MedFlight of Ohio.
In addition, I seek an order to compel Respondent to correct its patient records pertaining to her son Hakeem Sultaana July 2nd, 2022 services incident report number 263523.
In particulars,
[One] to correct its patient records noting that Hakeem Sultaana was mentally and physically incapable of making decisions.
[Two] to correct its patient records noting that Hakeem Sultaana has no next kin.
[Three] to correct its patient records noting that Hakeem Sultaana admitted to MedCare Ambulance that he used Meth and had been up for four days off of Meth.
[Four] to correct its patient records noting that Hakeem Sultaana was incapable / could not sign.
[Five] and to correct its patient records noting that Hakeem Sultaana was forced to go with MedCare Ambulance after he refused service while under duress.
(Emphasis removed.) (Compl. at 7-8. )
{18} 6. Relator filed an affidavit of indigency on February 10, 2023 with a motion to waive costs. Relator filed a motion to waive fees on February 28, 2023.
{19} 7. Respondent filed a motion to dismiss pursuant to
{20} 8. The magistrate provisionally granted relator‘s motion to proceed in forma pauperis on March 20, 2023.
{21} 9. On April 4, 2023, relator filed a pleading captioned “Relator, Amirah Sultaana‘s opposition to respondent Medcare Ambulance motion to dismiss (finding of fact demand) with emergency motion to deploy Ohio Civil Rule 19 in joining Hakeem Sulataana as a party.” (Emphasis removed.)
{22} 10. Respondent filed a reply in support of its motion to dismiss on April 11, 2023.
II. Discussion and Conclusions of Law
{23} In its motion to dismiss, respondent asserts relator‘s complaint must be dismissed for failing to state a claim because relator has not alleged facts supporting that respondent is a public official or entity under a clear legal duty to perform the requested acts. Respondent also argues relator has not alleged a clear legal right to the requested relief or the absence of an adequate remedy at law. Finally, respondent asserts relator is engaging in the unauthorized practice of law, thereby necessitating dismissal of the complaint.
A. Review of a Motion to Dismiss in Mandamus
{24} A motion to dismiss for failure to state a claim is procedural and tests the sufficiency of the complaint itself and any attached documents. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992), citing Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). Attachments to the complaint are considered part of the complaint for all purposes.
{25} A court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the nonmoving party. Red Foot Racing Stables v. Polhamus, 10th Dist. No. 19AP-390, 2020-Ohio-592, ¶ 11, citing State ex rel.
{26} Generally, in ruling on a
{27} Nevertheless, when determining whether a relator‘s complaint states a claim for a writ, a court may take judicial notice of the pleadings and orders in related cases when these are not subject to reasonable dispute insofar as they affect the current original action.
{28} In order for a court to issue a writ of mandamus, a relator must establish (1) the relator has a clear legal right to the requested relief, (2) the respondent is under a clear legal duty to provide the relief, and (3) the relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983), citing State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 42 (1978).
B. Public-Records Mandamus Cases under Ohio Law
{29} Ohio‘s Public Records Act, which is codified at
{30} For purposes of
{31} Mandamus is an appropriate remedy to compel compliance with the Public Records Act. State ex rel. Physicians Comm. for Responsible Medicine v. Bd. of Trustees of Ohio State Univ., 108 Ohio St.3d 288, 2006-Ohio-903, ¶ 6;
C. Application
{32} First, respondent argues relator has failed to allege the lack of an adequate remedy at law. However, unlike in other mandamus cases, a relator in a public-records mandamus action does not need to establish the lack of an adequate remedy in the ordinary course of the law. State ex rel. ACLU of Ohio v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, ¶ 24. Therefore, dismissal is not appropriate on this basis.
{33} Next, respondent asserts the complaint must be dismissed because relator is engaging in unauthorized practice of law.
No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which the person is not a party concerned, either by using or subscribing the person‘s own name, or the name of another person, unless the person has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules.
Thus, “only a licensed attorney may file pleadings on behalf of another party in court.” State ex rel. Army of the Twelve Monkeys v. Warren Cty. Court of Common Pleas, 156 Ohio St.3d 346, 2019-Ohio-901, ¶ 5, citing Disciplinary Counsel v. Givens, 106 Ohio St.3d 144, 2005-Ohio-4104, ¶ 7. “A complaint filed by a nonattorney in violation of
{34} Respondent argues relator is engaged in the unauthorized practice of law because she filed this action “on behalf of her son, Hakeem Sultaana, based on what appears to be a power of attorney.” (Respondent‘s Mot. to Dismiss at 7.) Respondent supports this by arguing that “[i]t is [Hakeem Sultaana‘s] records that [relator] seeks to obtain and ‘correct.’ ” (Respondent‘s Reply in Support of its Mot. to Dismiss at 9.) Relator disputes the argument that she is engaged in the unauthorized practice of law. She states that “[a]s an Ohio citizen [relator] can make a public record request to any public record office” and that she “is not filing her public record request on behalf of her son.” (Relator‘s Memo. in Opp. at 8.)
{36} Next, respondent asserts the complaint must be dismissed because relator has failed to allege facts establishing respondent is a public official or entity under a clear legal duty to perform the requested acts. Respondent points to the maxim that ” ‘[m]andamus will not lie to enforce a private right against a private person.’ ” State ex rel. Russell v. Duncan, 64 Ohio St.3d 538, 538 (1992), quoting State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967), paragraph eight of the syllabus. While this remains true in general, it is not determinative in the context of public records actions.
{37} The Supreme Court of Ohio has held that a private entity can be subject to the provisions of the Public Records Act if it is established by clear and convincing evidence
{38} Acknowledging the existence of the functional equivalency test in its reply in support of its motion to dismiss, respondent argues relator‘s complaint must nevertheless be dismissed because the complaint fails to meet minimal pleading requirements in alleging the existence of a clear legal duty. Respondent argues “[t]here is simply no basis from which it could be found that [relator] alleged facts that could be used to infer that [respondent] is a public office” and that “[t]here is nothing in the Complaint that supports a claim that [relator] is entitled to public records from a private ambulance company.” (Respondent‘s Apr. 11, 2023 Reply at 7.)
{39} ” ‘A complaint in mandamus states a claim if it alleges the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted.’ ” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), quoting State ex rel. Alford v. Willoughby Civ. Serv. Comm., 58 Ohio St.2d 221, 224 (1979). See State ex rel. Williams v. Bessey, 10th Dist. No. 08AP-158, 2009-Ohio-5852, ¶ 4. This threshold is consistent with the notice pleading standard contained in
{40} In this case, the complaint is devoid of any allegation that respondent is a public office for purposes of the Public Records Act. Relator does not allege that respondent is a state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government. While a court need not accept as true any unsupported and conclusory legal propositions presented in the complaint, there is not even an articulated legal proposition in relator‘s complaint that respondent qualifies as a public office. Instead, relator merely mentions the Public Records Act and offers the unsupported conclusion that respondent is subject to a “duty under law” to provide the requested relief. (Compl. at 5.)
{41} Nor does relator allege that respondent is subject to the Public Records Act under the functional equivalency test or provide any facts or reasons suggesting the applicability of the test. There is no allegation that respondent is engaged in a governmental function, funded by the government, has government involvement, or was created by the government or to avoid the requirements of the Public Records Act. This is particularly problematic where, as here, all reasonable appearances indicate that records are being sought from a private entity. The Supreme Court of Ohio has emphatically held that private entities are presumed not to be subject to the Public Records Act. Oriana House at ¶ 26.
{42} Although relator is not required to allege in her complaint every fact she intends to prove in order to survive a motion to dismiss under
Upon request by any person and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to the requester at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request by any person, a public office or person responsible for public records shall make copies of the requested public record available to the requester at cost and within a reasonable period of time.
D. Conclusion
{44} Accordingly, it is the decision and recommendation of the magistrate that respondent‘s March 14, 2023 motion to dismiss pursuant to
/S/ MAGISTRATE JOSEPH E. WENGER IV