State ex rel. Fain v. Summit Cty. Adult Probation Dept. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Fain, Appellant, v. Summit County Adult
Probation Department, Appellee.
[Cite as State ex rel. Fain v. Summit Cty. Adult Probation
Dept. (1995), Ohio St.3d .]
Mandamus -- Action to compel removal of incorrect information
in probation record dismissed, when.
(No. 94-2533 -- Submitted February 21, 1995 -- Decided
April 5, 1995.)
Appeal from the Court of Appeals for Summit County, No.
16773.
Appellant, Hayward L. Fain, initiated an action for a writ
of mandamus in the Court of Appeals for Summit County to compel
appellee, Summit County Adult Probation Department, to remove
any and all incorrect information from his probation record and
to forward a corrected probation record to the Department of
Rehabilitation and Correction. Appellant, an inmate at Grafton
Correctional Institution, alleged that incorrect information
contained in a presentence investigation report was forwarded
from appellee for inclusion in appellant's "Master File in
Columbus." Appellant claimed that inaccurate information was
contained in the report prepared by appellee which indicated
that appellant had tied his stepson to a pole while appellant
administered punishment to him, and that this information was
later used by the Ohio Adult Parole Authority to deny appellant
parole and continue his incarceration for an additional
thirty-six months.
On November 2, 1994, the court of appeals granted
appellee's motion to dismiss appellant's "complaint" for a writ
of mandamus on the basis that appellant "ha[d] not demonstrated
a duty on behalf of [appellee]" to provide the requested
relief.
This cause is before the court upon an appeal as of right.

Hayward L. Fain, pro se.
Donna J. Carr, Summit County Prosecuting Attorney, and
James W. Armstrong, Assistant Prosecuting Attorney, for
appellee.

Per Curiam. In order to be entitled to a writ of
mandamus, a relator has the burden of establishing that he has
a clear legal right to the relief prayed for, that respondent
has a clear legal duty to perform the requested act, and that
relator has no plain and adequate remedy at law. State ex rel.
Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d
1189, 1192. In determining whether a complaint states a claim
upon which relief can be granted, all factual allegations of
the complaint must be presumed to be true and all reasonable
inferences must be made in favor of the nonmoving party. Perez
v. Cleveland (1993), 66 Ohio St.3d 397, 399, 613 N.E.2d 199,
200. In addition, in order to dismiss a complaint pursuant to
Civ.R. 12(B)(6) for failure to state a claim upon which relief
can be granted, it must appear beyond doubt from the complaint
that the plaintiff can prove no set of facts warranting
relief. Id.; O'Brien v. Univ. Community Tenants Union, Inc.
(1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753,
syllabus.
Nevertheless, in similar cases, we have held that
unsupported conclusions of a complaint are not considered
admitted and are not sufficient to withstand a motion to
dismiss. See, e.g., State ex rel. Hickman v. Capots (1989), 45
Ohio St.3d 324, 544 N.E.2d 639 (inmate required to plead
specific facts on claimed exception to general rule concerning
parole revocation to avoid dismissal of complaint for writ of
mandamus); State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio
St.3d 489, 633 N.E.2d 1128 (inmate required to plead specific
facts as to right to release from prison to withstand dismissal
of complaint for writ of mandamus); State ex rel. Carter v.
Wilkinson (1994), 70 Ohio St.3d 65, 637 N.E.2d 1 (inmate
required to plead specific facts as to right to declaration of
an overcrowding emergency in the state prison system to prevent
dismissal of complaint for writ of mandamus).
Although appellant's pleading contained the conclusory
statement that "[appellee] has the clear legal duty and
responsibility under the law, to provide the aforementioned
corrected information within a reasonable length of time," the
only support he gives for this statement is his citation of
R.C. Chapter 5120. However, R.C. Chapter 5120 pertains only
to duties imposed on the Department of Rehabilitation and
Correction, not county probation departments like appellee.
See State ex rel. Yeager v. Cuyahoga Cty. Adult Probation Dept.
(Dec. 16, 1994), Cuyahoga App. No. 67398, unreported, where the
Court of Appeals for Cuyahoga County similarly held, in denying
a writ of mandamus to compel a county probation department to
correct a postsentence investigation report, that relator
failed to set forth any authority establishing a clear legal
duty on the part of respondent to correct the report. Further,
we have held that parole candidates like appellant possess no
due process right to have errors expunged from records used by
the Adult Parole Authority in its parole determination. State
ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d 123, 630
N.E.2d 696 (no due process right to correct an allegedly
inaccurate risk assessment scoresheet).
Based on the foregoing, appellant's unsupported conclusion
that appellee possessed a clear legal duty to correct its
presentence investigation report and other unspecified records

was insufficient to withstand appellee's dismissal motion.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.
Cook, J., not participating.