Trifilio v. Hurley, Unpublished Decision (3-5-2001)

DECISION JUDGMENT ENTRY Petitioner, Gregory Trifilio, filed a Petition for Writ of Habeas Corpus. Respondent, Pat Hurley, filed a Motion to Dismiss for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6).

On February 6, 2001, this court sua sponte, converted respondent's Motion to Dismiss to a Motion for Summary Judgment and ordered the parties to submit all pertinent evidence that is permitted pursuant to Civ.R. 56(C), [i.e, affidavits, etc. which conform to Civ.R. 56(E)] including but not limited to documentary evidence of petitioner's incarceration status, on or before February 16, 2001.

In response to this court's order, respondent filed a Sup-plement to Respondent's Motion to Dismiss asserting that peti-tioner, Gregory Trifilio, is no longer incarcerated. Respondent attached an affidavit from the Records Officer Supervisor at the Correctional Reception Center that stated that Trifilio was released from CRC on December 15, 2000 and is no longer in re-spondent's custody.

Upon consideration, this court finds that this issue is now moot. See, Heitman v. Tate (Jan. 23, 2001), Belmont App. No. 98-BA-27, unreported; Lamb v. Haskins (June 21, 2000), Noble App. No. 257, unreported.

The costs of this action are taxed to petitioner.

The Clerk of Courts is directed to mail a copy of this Decision and Judgment Entry to all counsel and to petitioner personally by regular U.S. mail.

Harsha, J. and Abele, P.J. Concur

______________________________________ Roger L. Kline, Administrative Judge