^':3 ;E :;3; <^:fi.:^y^?^'},^n STATE EX REL. ROBERT HARSH, IN TI-IE SUPREME COURT OF OHIO Relator, Case No. 2013-1561 V. Original Action in Mandamus ROBERT RINGLAND, ADMINISTRATIVE JUDGE Respondent. MOTION TO DISMISS OF RESPONDENT ROBERT HARSH #547-305 London Correctional Institution P. O. Box 69 London, Ohio 43140 Pro se Relator ERIN BUTCHER-LYDEN (0087278) *Counsel of Record DARLENE FAWKES PETTIT (0081397) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872 Fax: (614) 728-7592 erin. butcher-lyden @ohi o attorneygeneral. gov darlene.pettit^a,ohioattorneygeneral. gov Counsel foy Respondent, Administrative Judge Robert Ringland, Twelfth District Court of Appeals ^.,sj
STA'TE EX REL. ROBERT 1-1ARSH, IN THE SUPREME COURT OF OHIO Relator, Case No. 201 ' )-1 561 v. Original Action in Mandamus ROBERT RINGLAND, ADMINISTRAT'IVE JUDGE Respondent. MOTION TO DISMISS OF RESPONDENT Pursuant to Sup.C,t.Prac.R.. 12.04(A)(1) and Civ.R.12(B)(6), Respondent Judge Robert Ringland of the Twelfth District Court of Appeals of Ohio hereby moves this Court to dismiss Relator's petition for a writ of mandamus. A memorandum in support is attached. Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General ERI TCHER-LYDE ^ (0087278) *C'ounsel of Record DARLENE FAWKES PETTIT (0081397) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872 Fax: (614) 728-7592 erin. butcher-lyden@ohi o attorneygeneral. gov darlene.pettitnohioattorneygeneral<gov Counsel for Respondent, Administrative Judge Robert Ringland, Twelfth District Court ofappeals
MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION TO DISMISS 1. INTRODUCTION Relator Robert Harsh, an inmate, seeks a writ of mandarnus to compel Respondent Judge Robert Ringland of the Twelfth District Court of Appeals to issue a ruling on Relator's initial mandanius action before that court. On July 16, 2012, Relator filed a mandamus action in the Twelfth District Court of Appeals against Judge Patricia Oney of the Butler County Court of Common Pleas. On August 28, 2012, however, Respondent entered a decision on Relator's complaint. Because Respondent already issued a decision on the initial mandamus action, Relator's present action is moot. As argued below, Respondent respectfully asks this Court to dismiss Relator's present Complaint. IL STATEMENT OF FACTS On January 24, 2007, a jury found Relator guilty of operating a motor vehicle under the influence, a fourth-degree felony. Complaint, at Appendix, p. 5.1 On March 19, 2007, Judge Patricia Oney sentenced Relator to a prison term of seven years. Id. at 8. On July 16, 2012, Relator filed a complaint for a writ of mandamus against Judge Oney, challenging the sentence. Respondent's Exhibit A, Entry Granting Motion to Dismiss, State ex ' Civil Rule 12 (B)(6) requiresthat; where a motion to dismiss present matters outside of the complaint, the court must treat the motion as a summary judgment motion under Civil Rule 56. The court may consider documents attached to or incorporated into the complaint in a motion to dismiss, however. State ex rel. Crabtree v, Franklin Cty. Ba' of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997). 1-lere, Relator has attached several documents to his cover sheet that appear to be extensions of his Complaint. 1
rel. Harsh v, Oney, Case No, CA2012-07-134 (12th Dist. Aug. 28, 2013).2 On August 3, 2012, Respondent Judge Oney filed a motion to dismiss Relator's mandamus action. Id. On August 28, 2012, the Twelfth District Court of Appeals granted Judge Oney's motion and dismissed Relator's mandamus action. Id. On October 1, 2013, Relator filed the present action for a writ of mandamus. In his Complaint, Relator alleges that he has not received a ruling from Judge Ringland on his writ of mandamus against Judge Oney before the Twelfth District Court of Appeals. Complaint, p. 3 Respondent, however, issued a decision dismissing Relator's action on August 28, 2012.. Respondent's Exhibit 3. Respondent's decision issued on August 28, 2012 renders Relator's action moot. III. ARGUMENT A. Standard of Review A motion to dismiss for failure to state a claim upon which a court can grant relief challenges the sufficiency of the complaint itself, not evidence outside of the complaint. V'olbers-Klarich v. Middletoiom Mgmt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, T1, 11. When considering the factual allegations of the complaint, a court must accept incorporated items as true and "the plaintiff must be afforded all reasonable inferences possibly derived therefrom." tllitchell v..lawson Allilk Co., 40 Ohio St.3d 190, 192, 532 N.E,2d 753 (1988). Finally, a court must find that the plaintiff s complaint does not provide relief on any possible theory. Civ. R. 12(B)(6); State Auto. Mut. Ins. Co, v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1999, T 8. 2 Under Ohio Law, a court may take judicial notice of judicial entries in deciding whether a case is moot without converting a 12(13)(6) motion to a motion for summary judgment. State ex rel u'omack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229;1i 8. 2
B. Relator's request for a writ of mandamus must fail because he has not satisfied the requirements for a writ to issue. In this case, Relator requests a writ of mandamus to compel Respondent to issue a ruling on his initial mandamus action filed in the Twelfth District Court of Appeals.3 Regardless of how Relator captions his request for extraordinary relief, he is not entitled to a remedy from this court. A court will only issue a writ of mandamus wliere (1) the relator has a clear legal right to the requested relief; (2) the respondent has a clear legal duty to perform the requested relief; and (3) the relator has no adequate remedy at law. State ex g el. t'an Gundy v. Indus. Comm., 111 Ohio St.3d 395, 2006-Ohio-5854, 856 N.E.2d 951,^ 13, citing State ex rel. Lunct v. Iiu,f'finan, 74 Ohio St.3d 486, 487, 659 N.E.2d 1279 (1996). Because Relator fails to satisfy these requirements, his mandamus action must fail. From the face of Relator's Complaint, the relief he seeks is unclear: Relator is either unaware that Respondent already issued a decision in his case and seeks to compel Respondent to rule, or Relator never received a copy of the decision and seeks to compel Respondent to reissue his decision. Regardless, Respondent has no clear legal duty to grant this relief, nor correspondingly, does Relator have a clear legal right to this relief. First, this Court cannot compel Respondent to issue a decision because he has already completed this act. See Respondent's Exhibit A. This Court will not issue a writ of mandamus when the respondent has already performed the requested act. State ex rel. Nat'l City Bank v. Maloney, 103 Ohio St.3d 93, 2004-Ohio-4437, 814 N.E.2d 58, 10. Here, Relator filed this writ of mandamus on October 1, 2013-to the extent that Relator seeks to compel Respondent to 3 A writ of procedendo "is the more appropriate means to remedy an inferior court's refusal or failure to timely dispose of a pending action." State ex rel. Atkins v. Hoover, 97 Ohio St.3d 76, 2002-Ohio-5313, 776 N.E.2d 99, 7. 3
rule--respondent issued his decision on August 28, 2012 and, thus, Respondent has already performed the requested act. Second, this Court cannot compel Respondent to re-issue a decision with a new issue date because Respondent has clear no legal duty to do so. Respondent is not responsible for mailing his decisions, let alone ensuring that they make their way through a correctional facility to Relator. Respondent has no clear legal duty to reissue a decision simply because a party claims he has not received a copy of it, nor has Relator identified any law to support his theory for relief. In sum, because there is no duty that Respondent has left unperformed, and thus no corresponding relief that this Court may grant, this Court should dismiss Relator's Complaint. IV. CONCLUSION Complaint. For the foregoing reasons, Respondent respectfully requests this Court dismiss Relator's Respectfully submitted, MICI4AEL DEWINE (0009181) Ohio Attorney General AAAhg 2^^ ERIWBUTCHER-LYI5EN (0087278) *Counsel of RecoYd DARLENE FAWKES PETTIT (0081397) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872 Fax: (614) 728-7592 erin. butcher-lydert@ohi o attorneygeneral. gov darlene.pettit cr ohioattorneygeneral.gov Counsel for Respondent, Administrative Judge Robert Ringland,?'ivelft^h District Court ofappeals 4
CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Motion to Dismiss was filed with the Court and served by regular U.S. mail, postage prepaid, on October 24, 2013, to the following: ROBERT I-IARSI-I #547-305 London Correctional Institution P. U. Box 69 London, Ohio 43140 Pro se Relator ERI TCHER-LYDE (0087278) Assistant Attorney General 5