12PREM;^O ^, Q^0 APR CLERK OFCOURT IN THE SUPREME COURT OF OHIO

Transcription

1 [State of Ohio ex rel.]david Fox, Relator, IN THE SUPREME COURT OF OHIO 2008 vs. Case No Franklin County Common Pleas Court, Original Complaint in Mandamus Respondent. MOTION TO DISMISS OF RESPONDENT FRANKLIN COUNTY COURT OF COMMON PLEAS Ron O'Brien ( ) Prosecuting Attorney Franklin County, Ohio David Fox (COUNSEL OF RECORD) Relator, Pro Se Assistant Prosecuting Attorney Chillicothe, Ohio Franklin County Prosecutor's Office 373 South High Street, 13`h Floor Phone: (614) Fax: (614) COUNSEL FOR RESPONDENT FRANKLIN COUNTY COURT OF COMMON PLEAS APR CLERK OFCOURT 12PREM;^O ^, Q^0

2 IN THE SUPREME COURT OF OHIO 2008 [State oh Ohio ex rel.] David Fox, Relator. Case No v.. Original Action for Writ of Mandamus Franklin County Court of Common Pleas, Respondent. RESPONDENT'S MOTION TO DISMISS Now comes Respondent Franklin County Court of Common Pleas, (hereinafter "Respondent"), by and through undersigned counsel, and moves this Court to disniiss Relator's writ of prohibition on the grounds that Relator has failed to comply with R.C Furthermore, Relator has named a party that is not sui juris. Respondent respectfully request that this Motion to Dismiss be granted in its favor and Relator's writ of mandamus should be denied. Respondent's position is more fully set forth in the attached Memorandum in Support and is incorporated herein by reference Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANKLIN COUNTY, OHIO Assistant Prosecuting Attomey 373 South High Street, 13' Floor Phone: Fax: rmcolon&franld'nicountyohio.gov

3 MEMORANDUM IN SUPPORT 1. STATEMENT OF FACTS This action is before the Court on Relator's writ of mandamus filed on April 2, Relator is seeking a directive from this Court compelling the trial court to "release all Documents that are being requested in this action." (Petition, at pg. 2) A cursory review of the Petition reveals Relator is seeking certain exhibits introduced during his underlying criminal trial, Franklin County Court of Common Pleas Case No. 00-CR For the reasons that follow, Relator's writ of prohibition should be denied because he did not follow the procedural mandates of R.C Furthermore, Relator has named a party that is not sui juris. II. STANDARD OF REVIEW In considering a motion to dismiss for failure to state a claim, the Court must construe all material allegations in the Complaint and all inferences that may be reasonably drawn there from in favor of the nonmoving party. Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666. In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that plaintiff can prove no set of facts warranting relief. State ex rel. Jennings v. Nurre (1995), 72 Ohio St.3d 596; York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143. III. LAW AND ARGUMENT Relator has failed to comply with R.C (C) which requires that an inmate provide an affidavit of indigency setting forth the balance in an inmates account at the correction facility as certified by the institutional cashier. Compliance with R.C

4 is mandatory and failure to comply with its requirements is grounds for dismissal. State ex rel. Washington v. Ohio Parole Auth., 87 Ohio St. 3d 258, (1999) State ex rel. Zanders v. Ohio Parole Bd, 82 Ohio St.3d 421, (1998). Relator, an incarcerated imnate, has failed to provide such an affidavit. Accordingly, this action should therefore be dismissed. Relator has named as Respondent, "Franklin County Court Common Pleas," a nonentity which cannot provide the relief requested. In the case of a govemmental entity, the capacity to sue or be sued shall be determined by the law of the state. A court is a place where a proper officer or officers administer justice through use of judicial power. Malone v. Court of Common Pleas (1975), 45 Ohio St.2d 245 Citing Todd v. United States (1895), 158 U.S. 278, 284; State ex rel. Cleveland Municipal Court v. Cleveland City Council.(1973), 34 Ohio St: 2d 120, 121. Relator does not name a "proper officer or officers" instead naming the entire Court of Common Pleas. This case should be dismissed. IV. CONCLUSION For the foregoing reasons Relator's petition for a writ of mandamus must be disnvssed and the requested writ should not issue. Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANKLIN COUNTY, OHIO Assistant Prosecuting Attorney 373 South High Street, 13a' Floor Phone: Fax:

5 Counsel for Respondent CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Respondent's Motion to Dismiss has been forwarded by ordinary U.S. mail, postage prepaid, to David Fox, Relator pro se, 0 P.O. Box 7010, Chillicothe, OH, this day of April, Assistant Prosecuting Attorney 4