p L DD 0q^^/41, CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO State ex rel., McGRATH Case No

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1 IN THE SUPREME COURT OF OHIO 0q^^/41, State ex rel., McGRATH V. Relato THE EIGHTH DISTRICT COURT OF APPEALS, Case No Original Action in Mandamus and Procedendo Respondent. MOTION TO DISMISS OF RESPONDENT THE EIGHTH DISTRICT COURT OF APPEALS JOSEPH McGRATH RICHARD CORDRAY ( ) 501 Thompson Road Ohio Attorney General Conneaut, Ohio Relator Ohio Attomey General's Office Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio (614) Phone (614) Fax damian.sikora@ohioattomeygeneral.gov Attorney for Respondent The Eighth District Court of Appeals p L DD NOV CLERK OF COURT SUPREME COURT OF OHIO

2 IN THE SUPREME COURT OF OHIO State ex rel., McGRATH Relator, Case No v. Original Action in Mandamus and THE EIGHTH DISTRICT COURT OF Procedendo APPEALS, Respondent. MOTION TO DISMISS OF RESPONDENT THE EIGHTH DISTRICT COURT OF APPEALS Pursuant to Sup. Ct. Prac. R and Ohio Civ. Rule 12(B)(6), Respondent, the Eighth District Court of Appeals, hereby moves this Court to dismiss Relator's petition for a writ of mandamus and a writ of procedendo. A memorandum in support is attached. Respectfully submitted, RICHARD CORDRAY ( ) Ohio Attorney General Ohio Attoruey General's Office Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio (614) Phone (614) Fax damian.sikora@ohioattorneygeneral.gov Attorney for Respondent The Eighth District Court ofappeals

3 MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION TO DISMISS 1. INTRODUCTION Relator Joseph McGrath initiated this mandamus and procedendo action to compel Respondent, the Eighth District Court of Appeals, to render a decision on the merits of Relator's motion for leave to raise an issue of plain error based on incorrect verdict forms from his 2009 conviction. Relator is not entitled to such extraordinary relief. For the following reasons, this Court must deny Relator's request for a writ of mandamus and a writ of procedendo. II. STATEMENT OF FACTS Relator, an inmate currently incarcerated at the Erie Correctional Institution, was convicted by a jury of menacing by stalking with a history of violence specification,l violating a temporary protection order while committing a felony, and violating a temporary protection order not during the commission of a felony. State of Ohio v. McGrath, Cuyahoga County Ct. C.P. No.CR On June 11, 2009, Relator appealed his conviction. State of Ohio v. McGrath, 2010 Ohio 4477, 8th App. Dist. No On September 23, 2010, the Eighth District affirmed the jury's conviction of Relator. Id. In the time between the filing of his appeal in the Eighth District through November 1, 2010, Relator filed more than thirty pro se motions in the Eighth District. On September 28, 2010, Relator filed a motion asking the Eighth District to reconsider its appellate order and to render a separate decision on the alleged issue of improper jury verdict ' Relator has a history of prior convictions for domestic violence, menacing by stalking, aggravated assault, and felonious assault that have also been the subject of subsequent appeals to this Court. However, this motion addresses only those civil actions taken by Relator in regards to the 2009 case State of Ohio v. McGrath, Cuyahoga County Ct. C.P. No. CR

4 forms.z Relator's Motion for Reconsideration, Sept. 28, The Eighth District denied Relator's motion. Relator now asks this Court for writs of mandamus and procedendo to compel the Eighth District to render a separate decision on the alleged issue of incorrect jury forms. Relator's Complaint, Oct. 28, 2010, p. 1. However, Relator is not entitled to this relief. III. LAW AND ARGUMENT Relator asks this Court to issue a writ of mandamus and a writ of procedendo against the Eighth District Court of Appeals to compel it to render a decision on the merits of Relator's motion for leave to raise an issue of plain error based on incorrect verdict forms from his 2009 conviction. Relator's claim fails because he lacks a clear legal right to either a writ for mandamus or a writ of procedendo and he has an adequate remedy at law. Accordingly, this Court must grant the Respondent's motion to dismiss. A. Standard of review and law A motion to dismiss for failure to state a claim upon which relief can be granted challenges the sufficiency of the complaint itself, not evidence outside of the complaint. Volbers-Klarich v. Middletown Mgmt, Inc., 125 Ohio St. 3d. 494, 2010 Ohio 2057, at P 11. When considering the factual allegations of the complaint, a court must accept incorporated Z Including his appeal and motion to reconsider his appeal to the Eighth District for his 2009 conviction, Relator has filed a total of 14 appeals in the Eighth District alone since State v. McGrath (Ohio Ct. App., Sept. 6, 2001), 8th App. Dist., Cuyahoga County No., 77896; State v. McGrath (Ohio Ct. App., May 16, 2002), 8th App. Dist, Cuyahoga County, No , 2002 Ohio 2386; McGrath v. Gallagher (Ohio Ct. App., July 18, 2002), 8th App. Dist, Cuyahoga County, No , 2002 Ohio 3642; State ex rel. McGrath v. Ohio Adult Parole Auth. (Ohio Ct. App., Apr. 17, 2003), 8th App. Dist., Cuyahoga County, No , 2003 Ohio 1969; State ex rel. McGrath v. Ohio Adult Parole Auth. (Ohio Ct. App., Nov. 18, 2004), 8th App. Dist, Cuyahoga County, No , 2004 Ohio 6114; State ex rel. McGrath v. Gilligan (Ohio Ct. App., Feb. 16,2005), 8th App. Dist, Cuyahoga County, No , 2005 Ohio 619; State ex rel. McGrath v. Parma Mun. Ct. (Ohio Ct. App., Mar. 14, 2005), 8th App. Dist, Cuyahoga County, No , 2005 Ohio 1201; State ex rel. McGrath v. McDonnell (Ohio Ct. App., Feb. 6, 2006), 8th App. Dist, Cuyahoga County, No , 2006 Ohio 535; McGrath v. McFaul (Ohio Ct. App., Aug. 29, 2007), 8th App. Dist, Cuyahoga County, No , 2007 Ohio 4440; State ex rel. McGrath v. Cuyahoga County Ct. C.P. (Ohio Ct. App., Aug. 29, 2007), 8th App. Dist, Cuyahoga County, No , 2007 Ohio 4442; McGrath v. Matia (Ohio Ct. App., Apr. 30, 2010), 8th App. Dist., Cuyahoga County, No , 2010 Ohio 1987; State ex rel. McGrath v. McDonnell (Ohio Ct. App., June 8, 2010), 8th App. Dist., Cuyahoga County, No

5 items as true and "[fjurthermore, the plaintiff must be afforded all reasonable inferences possibly derived therefrom." Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 523 N.E.2d 753, 756. Finally, a court must find that the plaintiffs complaint appears beyond doubt that it can prove none of the facts it sets out. Civ.R. 12(B); State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio St.3d 98, 99, 562 N.E.2d A writ of mandamus and a writ of procedendo share the same requirements: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St. 3d 118; State ex rel. Nat'l City Bank v. Bd. Of Ed. (1977), 52 Ohio St.2d. 81, 83; State ex rel. Sawicki v. Court of Common Pleas of Lucas County, 126 Ohio St.3d 198, 2010 Ohio 3299, at P 11. B. Relator's Complaint must be dismissed because he failed to satisfy the requirements necessary for a writ of mandamus or a writ of procedendo. Relator does not have a clear legal right to the relief he requests because he failed to submit a complete list of civil cases with his complaint, as required by Ohio law. Pursuant to R.C (A), when an inmate commences a civil action or appeal against a government entity or employee, the inmate must file "an affidavit that contains a description of each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court." A relator's failure to submit a completed list of his cases requires that the court dismiss a relator's petition. Thomas v. Eberlin, 2008 Ohio 4663, P 10. Here, Relator failed to file a complete list of the civil cases that he has initiated in the past five years. Specifically, Relator failed to include his October 25, 2010 filing in this Court of a complaint seeking a writ of mandamus and a writ of prohibition State ex rel. McGrath v. 3

6 Gallagher, Case No Because Relator failed to comply with the filing requirements in R.C (A), this complaint must be dismissed. Further, Relator's complaint must be dismissed because Relator had a plain and adequate legal remedy at law in that he could have appealed the Eighth District's decision to this Court. Under Ohio law, "neither a writ of procedendo nor a writ of mandamus will issue if an adequate remedy exists in the ordinary course of law." State ex rel Reynolds v. Basinger, 99 Ohio St.3d 303, 2003 Ohio 3631, at P 8. This Court has unequivocally stated that "[m]andamus cannot be used as a substitute for appeal." State ex rel. Pressley v. Indus. Comm'n (1967), 11 Ohio St.2d 141, 163. Further, this Court has held that mandamus will not lie where the availability of an appeal provides an adequate remedy at law. State ex rel. Gilligan v. Ohio Bd of Tax Appeals (1994), 70 Ohio St.3d 196, 201. See also State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals (1990), 56 Ohio St.3d 33, 34 (discretionary appeals are adequate remedies that will prevent issuance of both writs of mandamus) (citations omitted). Whether Relator's time to file an appeal has expired is irrelevant. Mandamus will not issue where a relator does not avail himself of a remedy by way of appeal. State ex rel. Corrigan v. Grin (1984), 14 Ohio St.3d 26, 27. Accordingly, Relator's request for relief must be denied. IV. CONCLUSION For the foregoing reasons, Respondents respectfully ask this Court to dismiss Relator's Complaint. 4

7 Respectfully submitted, RICHARD CORDRAY ( ) Ohio Attorney General Ohio Attorney General's Office Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio (614) Phone (614) Fax darnian.sikora@ohioattomeygeneral.gov Attorney for Respondent The Eighth District Court ofappeals CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Motion to Dismiss was served by regular U.S. mail, postage prepaid, on November 23, 2010 upon the following: JOSEPH McGRATH 501 Thompson Road Conneaut, Ohio Relator 5