[Cite as State ex rel. Almazan v. Gilson, 2021-Ohio-435.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE EX REL., HECTOR ALMAZAN, : 

 Relator, : 

 No. 109893 

 v. : 

 

THOMAS P. GILSON, M.D., : 

 

 Respondent. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: COMPLAINT DISMISSED 

DATED: February 16, 2021 

 

Writ of Mandamus 

Motion No. 541170 

Order No. 543864 

 

Appearances: 

Hector Almazan, pro se. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Jake A. Elliott, Assistant Prosecuting 

Attorney, for respondent. 

MARY EILEEN KILBANE, J.: 

Hector Almazan has filed a complaint for a writ of mandamus. 

Almazan seeks an order from this court that requires the Cuyahoga County Medical 

Examiner Thomas P. Gilson, M.D. (“ME”) to provide him with coroner records that 
relate to the death of Aura Morales.1 The ME has filed a motion to dismiss that is 

granted for the following reasons. 

I. Facts 

Almazan, through his complaint for a writ of mandamus, alleges that 

in June 2020, he sent a letter to the ME for “a complete copy of the autopsy report 

of Ms. Aura Morales and photographs along with the x-rays, and anything 

pertaining to the death of Ms. Aura Morales.” On June 25, 2020, the ME denied the 

request for autopsy records based on the failure of Almazan to comply with R.C. 

149.43(B)(8): 

Your request for records is denied. 

Pursuant to R.C. 149.43(B)(8), an inmate must first demonstrate to the 

sentencing court that he is entitled to the information he seeks before 

a public entity is required to fulfill his public records request. See R.C. 

149.43(B)(8). According to the docket, captioned State v. Almazan, 

Cuyahoga County case number CR 14 589365A, you have not received 

the court’s permission to make this public records request. Therefore, 

your request cannot be approved. 

On August 17, 2020, Almazan filed his complaint for a writ of 

mandamus. On September 16, 2020, the ME filed a motion to dismiss the complaint 

for a writ of mandamus. On November 18, 2020, this court issued an order that 

required Almazan to provide a copy of the letter that was sent to the ME in June 

2020: 

 1Almazan was convicted of the aggravated murder of Aura Morales and sentenced to 

a life sentence without the possibility of parole. See State v. Almazan, Cuyahoga C.P. No. 

CR-14-589365-A. 
Sua sponte, the relator-Hector Almazan is ordered to supplement his 

complaint for a writ of mandamus with a copy of the “request 

notification letter” sent to the respondent-Thomas P. Gilson, M.D., 

Medical Examiner Cuyahoga County, in June of 2020, that requested 

the production of alleged “public records” relating to the death of Aura 

Morales. 

The supplement shall be filed with this Court no later than 

December 31, 2020. 

Almazan has failed to comply with the sua sponte order and has not 

provided this court with a copy of the letter sent to the ME that demonstrates what 

coroner records were specifically requested in June 2020. 

II. Legal Analysis 

A. Standards for Granting Mandamus 

In order for this court to grant a writ of mandamus, Almazan must 

demonstrate, by clear and convincing evidence, (1) a clear legal right to the 

requested relief, (2) a clear legal duty on the part of the respondent to provide the 

requested relief, and (3) the lack of an adequate remedy in the ordinary course of 

the law. State ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92 

N.E.3d 871; State ex rel. Love v. O’Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 

N.E.3d 12550; State ex rel. Westchester v. Bacon, 61 Ohio St.2d 42, 399 N.E.2d 81 

(1980). 

B. Failure to Obey Sua Sponte Order to Supplement Complaint for 

Mandamus 

Initially, we find that Almazan has failed to demonstrate, by clear and 

convincing evidence, what records were specifically requested from the ME. The 
complaint for mandamus does not include a copy of the letter that was sent to the 

ME in June 2020. 

Almazan was instructed, through a sua sponte order, to supplement 

his complaint for mandamus with the letter sent to the ME in order to demonstrate 

what records were specifically requested to be provided by the ME. Almazan has 

failed to comply with this court’s sua sponte order by providing the letter sent to the 

ME. Almazan is required to demonstrate what records were requested before filing 

a mandamus action. State ex rel. Essi v. Lakewood, 2018-Ohio-5027, 126 N.E.3d 

254 (8th Dist.). Mandamus will not compel the production of a record that has not 

been requested. State ex rel. Bandy v. Gilson, Slip Opinion No. 2020-Ohio-5222; 

State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 577 N.E.2d 444 (10th 

Dist.1989); State ex rel. Cushion v. Massillon, 5th Dist. Stark No. 2010CA00199, 

2011-Ohio-4749. 

C. Records Exempt from Disclosure by Coroner – R.C. 313.10 

In addition, the records of a coroner “including, but not limited to, the 

detailed description of the observations written during the progress of an autopsy 

and the conclusions drawn from those observations filed in the office of the coroner” 

are ordinarily considered to be public records. State ex rel. Cincinnati Enquirer v. 

Pike Cty. Gen Health Dist., 154 Ohio St.3d 297, 2018-Ohio-3721, 114 N.E.3d 152, 

¶ 13, quoting R.C. 313.10(A)(1). However, R.C. 313.10(A)(2) provides that certain 

records retained by the coroner are not public records and thus not subject to 

disclosure. The following records in a coroner’s office are not public records: (1) 
preliminary autopsy and investigative notes and findings made by the coroner or by 

anyone acting under the coroner’s direction or supervision; (2) photographs of a 

decedent made by the coroner or by anyone acting under the coroner’s direction or 

supervision; (3) suicide notes; (4) medical and psychiatric records provided to the 

coroner, a deputy coroner, or a representative of the coroner or a deputy coroner 

under section 313.091 of the Revised Code; (5) records of a deceased individual that 

are confidential law enforcement investigatory records as defined in section 149.43 

of the Revised Code; and (6) laboratory reports generated from the analysis of 

physical evidence by the coroner’s laboratory that are discoverable under Crim.R. 

16. Clearly, the records allegedly requested by Almazan fall within the records 

exceptions provided under R.C. 313.10(A)(2) and the ME possesses no duty to 

provide any of the records allegedly requested by Almazan. The records excluded 

under R.C. 313.10(A)(2) may only be provided to a next of kin, journalists, and 

insurers pursuant to R.C. 313.10(C) and (E). 

It must also be noted that Almazan’s reliance upon the appellate 

opinion, rendered in State ex rel. Fellows v. Soboslay, 11th Dist. Trumbull No. 96-

T-5442, 1996 Ohio App.LEXIS 3198 (July 26, 1996), is misplaced. The Ohio 

Supreme Court has specifically overturned the opinion and legal analysis contained 

in Fellows. See State ex rel. Bandy v. Gilson, supra. 

D. Failure to Comply with R.C. 149.43(B)(8) 

Notwithstanding the application of R.C. 313.10, Almazan has also 

failed to comply with the requirements of R.C. 149.43(B)(8), which provides that: 
A public office or person responsible for public records is not required 

to permit a person who is incarcerated pursuant to a criminal 

conviction or a juvenile adjudication to inspect or to obtain a copy of 

any public record concerning a criminal investigation or prosecution or 

concerning what would be a criminal investigation or prosecution if the 

subject of the investigation or prosecution were an adult, unless the 

request to inspect or to obtain a copy of the record is for the purpose of 

acquiring information that is subject to release as a public record under 

this section and the judge who imposed the sentence or made the 

adjudication with respect to the person, or the judge’s successor in 

office, finds that the information sought in the public record is 

necessary to support what appears to be a justiciable claim of the 

person. 

 

Almazan has failed to comply with the mandatory requirement of R.C. 

149.43(B)(8) before requesting any public records from the ME. The failure to seek 

and receive leave from the judge or successor judge in CR-14-589365-A prevents 

this court from issuing a writ of mandamus on behalf of Almazan. State ex rel. Ware 

v. Giavasis, 160 Ohio St.3d 383, 2020-Ohio-3700, 157 N.E.3d 710; State ex rel. Ellis 

v. Cleveland Police Forensic Laboratory, 157 Ohio St.3d 483, 2019-Ohio-4201, 137 

N.E.3d 1171; State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 

856 N.E.2d 966. 

E. Conclusion 

 

Accordingly, we grant the ME’s motion to dismiss. Costs to Almazan. 

The court directs the clerk of courts to serve all parties with notice of this judgment 

and the date of entry upon the journal as required by Civ.R. 58(B). 
Complaint dismissed. 

_______________________________ 

MARY EILEEN KILBANE, JUDGE 

SEAN C. GALLAGHER, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR