[Cite as State ex rel. Owens v. Gifford,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE EX REL. CARLO L.M. : Hon. W. Scott Gwin, P.J. OWENS : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. Relator : : -vs- : Case No. 2024 CA 0020 : L. GIFFORD, MANSFIELD : CORRECTIONAL INSTITUTION : OPINION

Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: November 20, 2024

APPEARANCES:

For: Relator For: Respondent

CARLO L.M. OWENS DAVE YOST #A383-845 Ohio Attorney General North Central Correctonal Complex BY: JOHN BATES P.O. Box 1812 Senior Assistant Attorney General Marion, OH 43301 Criminal Justice Section Corrections Litigation Unit 30 E. Broad Street, 23rd Floor Columbus, OH 43215 Richland County, Case No. 2024 CA 0020 2

Gwin, P.J.

{¶1} On May 2, 2024, Relator Carlo L.M. Owens filed a Complaint for Writ of

Mandamus requesting public records. On June 7, 2024, Respondent L. Gifford,

Commissary Supervisor at Mansfield Correctional Institution filed a Motion to Dismiss

Complaint. Owens responded to the motion on October 28, 2024.1 For the reasons that

follow, we grant Gifford’s motion and dismiss the writ.

I. BACKGROUND

{¶2} Owens’s writ of mandamus states that Gifford is the Commissary

Supervisor at Mansfield Correctional Institution Commissary. Owens asserts he sent a

public records request to Gifford, via certified mail, on March 20, 2024, and that Gifford

allegedly signed for the certified mail on March 27, 2024. Owens references Exhibits A,

B and C to establish the certified mail request and acceptance by Gifford. However, these

exhibits are not attached to his complaint.

{¶3} Owens further alleges that to date; he has not received a response to his

public records request. Owens requests that Gifford comply with his statutory duty to

produce the requested records and that he be awarded statutory damages and court

costs.

{¶4} On July 9, 2024, Owens requested a 30-day extension of time to respond

to the motion. We granted Owens’s request and ordered Gifford to serve a copy of his

Motion to Dismiss Complaint on Owens. On July 12, 2024, Owens filed a Motion to Strike

Any Pending Motions of Respondent in Regard to Relator’s Writ of Mandamus. On

1 Owens’s response was untimely but we previously granted his “Motion for Leave for

Instanter” and therefore, will consider his response to Gifford’s Motion to Dismiss Complaint. Richland County, Case No. 2024 CA 0020 3

September 19, 2024, we denied the Motion to Strike and again ordered Gifford to serve

a copy of his motion on Owens. We also gave Gifford additional time to respond to the

motion.

{¶5} On September 20, 2024, Owens filed a Motion for Contempt of Court. We

filed a Judgment Entry on September 23, 2024, holding the motion in abeyance and

ordering Gifford to file notice of proof of service of his motion on Owens. On October 1,

2024, Gifford filed his notice of proof of service. On October 28, 2024, Owens filed a

Motion for Leave Instanter and Reply to Respondent’s Motion to Dismiss Relator’s Writ

of Mandamus.

II. ANALYSIS

A. Writ of mandamus elements and Civ.R. 12(B)(6) standard

{¶6} To be entitled to a writ of mandamus, a relator must prove the following by

clear and convincing evidence: (1) a clear legal right to the requested relief; (2) a clear

legal duty on the part of one or both of the respondents to provide it; and (3) the lack of

an adequate remedy in the ordinary course of the law. (Citations omitted.) State ex rel.

Blachere v. Tyack,

(10th Dist.). “‘Clear and convincing evidence’ is

a measure of degree of proof that is more than a preponderance of the evidence but less

than the beyond-a-reasonable doubt standard required in a criminal case; clear and

convincing evidence produces in the trier of fact’s mind a firm belief of the fact sought to

be established.” State ex rel. Ware v. Crawford,

, ¶ 14, citing State ex rel.

Miller v. Ohio State Hwy. Patrol,

.

{¶7} Gifford seeks dismissal of Owens’s writ under Civ.R. 12(B)(6). A Civ.R.

12(B)(6) motion tests the sufficiency of the mandamus complaint and the materials Richland County, Case No. 2024 CA 0020 4

incorporated into it. (Citations omitted.)

. Dismissal is appropriate if, after

presuming all factual allegations in the mandamus complaint to be true and drawing all

reasonable inferences in the relator’s favor, it appears beyond doubt that the relator can

prove no set of facts entitling the relator to a writ of mandamus. (Citations omitted.) Id. at

¶ 12. “However, ‘unsupported legal conclusions are not considered admitted when

determining whether to grant extraordinary relief and are insufficient to withstand a motion

to dismiss.’” Id., quoting State ex rel. Bell v. Pfeiffer,

, ¶ 13 (10th Dist.).

B. Owens is not entitled to mandamus relief.

{¶8} Owens is not entitled to mandamus relief because he failed to plead and

prove, by clear and convincing evidence, that he requested a public record under R.C.

149.43(B)(1) and that Respondent Gifford did not make the record available. Welsh-

Huggins v. Jefferson Cty. Prosecutor’s Office,

. Although Owens

references Exhibit A, in paragraph six of his complaint, this exhibit is not attached to the

complaint. Missing Exhibit A is allegedly the public records request that Owens sent to

Gifford.

{¶9} In paragraph seven of his complaint, Owens references Exhibits B and C

and further alleges Gifford signed for the public records request that was sent by certified

mail. However, these exhibits are also not attached to the complaint. We do not know

what public records Owens allegedly requested and whether Gifford was actually served

with a copy of the requested records.

{¶10} Therefore, we conclude Owens is not entitled to mandamus relief because

he failed to establish, by clear and convincing evidence, that he requested a public record

under R.C. 149.43(B)(1) and that Gifford did not make the record available. Richland County, Case No. 2024 CA 0020 5

C. Owens is not entitled to statutory damages.

{¶11} Owens also requests this Court award him statutory damages and court

costs because he had to institute this action to make Gifford respond to his public records

request. R.C. 149.43(C)(2) allows a relator to recover $100 for each business day during

which a records custodian fails to comply with the Public Records Act, starting from the

day the mandamus action was filed, up to a maximum of $1,000.

{¶12} R.C. 149.43(C)(2) provides a “requester shall be entitled to recover”

statutory damages if (1) he has submitted a written request for public records “by hand

delivery, electronic submission, or certified mail . . . to the public office or person

responsible for the requested public records,” (2) the request “fairly describes the public

record or class of public records,” and (3) “a court determines that the public office or the

person responsible for public records failed to comply with an obligation” imposed by R.C.

149.43(B).

{¶13} Here, Owens failed to establish that he delivered his public records request

to Gifford by certified mail – or any other means of delivery permitted under R.C.

149.43(C)(2). A requester seeking statutory damages must prove the method of delivery

by clear and convincing evidence. See State ex rel. Mobley v. Toledo,

(“Mobley has failed to prove by clear and convincing evidence that Toledo failed to

comply with any obligation under R.C. 149.43(B). Though Mobley claims that he sent a

public-records request to the police department on or about October 13, 2021, he has not

submitted a copy of his alleged request or any other evidence showing that he mailed the

request described in the complaint . . . Mobley has therefore failed to show a violation of

R.C. 149.43(B) upon which he can base a claim for statutory damages.”) Richland County, Case No. 2024 CA 0020 6

{¶14} Therefore, we conclude Owens is not entitled to statutory damages.

D. Owens is not entitled to court costs.

{¶15} An award of court costs is mandatory under two scenarios. First, court costs

shall be awarded when the court grants a writ of mandamus compelling a public office to

comply with its duties under the Public Records Act. R.C. 149.43(C)(3)(a)(i). Second,

court costs shall be awarded when the court determines the public office “acted in bad

faith when [it] made the public records available to the relator for the first time after the

relator commenced the mandamus action, but before the court issued any order

concluding whether or not” to grant a writ of mandamus. See R.C. 149.43(C)(3)(a)(ii) and

(iii).

{¶16} Neither scenario applies to the facts of this case. Therefore, Owens is not

entitled to an award of court costs. State ex rel. Hedenberg v. N. Cent. Corr. Complex,

.

III. CONCLUSION

{¶17} Based on the foregoing, we conclude beyond doubt that Owens can prove

no set of facts entitling him to mandamus relief. Therefore, we grant Gifford’s Motion to

Dismiss.

{¶18} The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B). Richland County, Case No. 2024 CA 0020 7

{¶19} MOTION GRANTED.

{¶20} CAUSE DISMISSED.

{¶21} COSTS TO RELATOR.

By Gwin, P.J.,

Hoffman, J., and

King, J., concur