Donald L. Vos et al., Plaintiffs-Appellants,
Ohio Environmental Protection Agency, Defendant-Appellee.
from the Court of Claims of Ohio No. 2017-552
Donald L. Vos, pro se, and Dennis Scott
Wallace, pro se.
Donald L. Vos.
DeWine, Attorney General, and Christopher Conomy, for
Christopher P. Conomy.
1} Plaintiffs-appellants, Donald L. Vos and Dennis
Scott Wallace, appeal a judgment of the Court of Claims of
Ohio that dismissed appellants' complaint against
defendant-appellee, the Ohio Environmental Protection Agency
("the agency"). For the following reasons, we
2} Appellants filed a suit against the agency and
its directors past and present on June 20, 2017. In the
complaint, appellants alleged that the agency failed and
refused to abide by its own rules in granting operational
permits for the landfill in Negley, Ohio, and to conduct
required inspections of that dump. They contended that the
agency had knowledge and covered up the fact that material
from New York and New Jersey containing blood and body parts
from the 911 terrorist attack was being placed in the
landfill. According to appellants, the agency also prohibited
the Columbiana County Health Board from conducting
inspections of the landfill. Based on these alleged facts,
appellants claimed that the agency's refusal to hold the
Negley landfill to the written rules caused damage to their
property. They requested $10, 000 in damages and that the
agency pay the cost to dig up the material in the Negley
landfill, to test it for blood and body parts, and to turn
the Negley landfill into "a grave site for those buried
there as common garbage."
3} A magistrate for the trial court dismissed the
directors past and present of the agency pursuant to R.C.
2743.02(E) which provides that the state shall be the only
defendant in the Court of Claims. The agency then filed a
motion to dismiss pursuant to Civ.R. 12(B)(6) for failure to
state a claim for relief. Appellants opposed the motion.
4} In a September 27, 2017 judgment entry, the trial
court granted the agency's motion and dismissed the case.
The Court of Claims found that appellants could not recover
for a cause of action that alleged the agency failed to
enforce its own rules and regulations. It also found that any
claim for relief that may be construed from the complaint
would involve the performance or nonperformance of a public
duty. Because the complaint did not set forth facts to
establish the ...