P% ^%ar2isj^^ State Ex Rel. Javier Humberto, IN THE SUPREME COURT OF OHIO 2014 oi1v7 Case No. 14-0^ -vs- Relator, ORIGINAL ACTION Franklin County Court of Common Pleas, Respondents. Court of Common Pleas Case No. 08CR - 8395 RESPONDENT'S MOTION TO DISMISS RELATOR'S ACTION IN MANDAMUS RON O'BRIEN 0017245 Frazlklin County Prosecuting Attorney 373 South High Street-13"' Fl. Columbus, Ohio 43215 614/525-3555 And JEFFREY C. ROGERS 0069399 (Counsel of Record) Assistant Prosecuting Attorziey jcrogers,,jf.^franklincountyohio.gov COUNSEL FOR RESPONDENTS Javier Humberto #A 628-315 Ross County t::orrectional Institute P.O. Box 7010, 16149 SR 104 Chillicothe, Ohio 45601 f, y?., s < 41 201C PRO SE RELATOR,,s f.s%...y`.k 0 % C 0;j P ^^+.^ ^ ft.. Y^'^.i1r.1 131Pi^^^jS^t^^.4.. ^^O^jS. i./ '4f f 5 Respondent Franklin Courity Court of Common Pleas, moves this Court to dismiss this actiozi pursuant to Civ. R. 12(B)(6) on grounds that Relator has not complied with the statutory
requirements of R.C. 2969.25 and Relator has failed to state a claim on which relief can be granted or, in the alternative, a motion for summary judgment pursuant to Civ: R, 56(C) as there exist no genuine issues of material fact and Respondent is entitled to jtrdgment as a matter of law. In addition, Respondent is not suz juris.. Support for this motion is set forth in the accompanying Memorandum In Support, which is incorporated herein by reference. Respectfi.7lly submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANKLIN COUNTY, OHIO ey ^. kogers 006939. Assistant Prosecuting A 373 South High Street, 13th Floor Coluinbus. Ohio 43215 614-525-3520 (Phone); 614-525-6012 (Fax) ' crogers(c} t:ranklincountyohio.gov Counse.l for Respondent MEMORANDUM IN SUPPORT STATEMENT OF TI-IE CASE On April 28, 2010, in case 08CR- 8395, ajury found Relator Javier Humberto guilty of two counts of Murder in violation of R.C. 2903.02, Attempt Murder in violation of R.C. 2923.12 as applied to R.C. 2903.02, and one count of Felonious Assault in violation of R.C. 2903.11, with gun specifications on all cou.nts. On May 12, 2010, Relator was given a total sentence, including guns specifications, of 25 years to life. 2
On June 3, 2010, Relator's counsel in the criminal case ordered a copy of the transcript of the trial proceedings to be prepared and filed. The transcript of the trial was filed on August 30, 2010 and is viewable online. The Court paid half the cost of the transcript due to Relator's indigence. Relator appealed his convictions to the 10"' District in case loa.p --- 527. His three assignments of error were rejected and the trial cotirt verdicts were affirzned on June 23, 2011. The Ohio Supreme Court declined jurisdiction on December 6, 2011 case #2011-1340. On A:pri12, 2013, the Court of Common Pleas detued Relator'spro-se Motion To Vacate Conviction And Void Conviction. Relator sought to file another pro-se appeal in the 100' District Court of Appeals. That appeal, 13AP - 353, was denied as tintimely. O11 March 21, 2014, Relator filed a"complaint For A Writ of Mandamus" in the Supreme Court of Ohio, case 2014-0447. ARGUMENT A. Relator has not complied with R.C. 2969.25. Relator has not complied with the statutory requirements of R.C. 2969.25 since he did not provide "a statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as cei-tified by the institutional cashier." Compliance with R.C. 2969.25 is mandatory and failure to complyj Mth its recluirernents is grounds for dismissal. 9ate ex rel. Masliington v. Ohio Paf ole Auth. (1999), 87 Ohio St. 3d 258, State ex rel. Zanders v. Ohio Parole Bd. (1998), 82 Ohio St.3d 421. The pertinent Code section isrc2969.25(c)(1): (C) If an iiunate who files a civil action or appeal against a govertuiient entity or employee seeks a waiver of the prepayment 3
of the full filing fees assessed by the court in which the action or appeal is filed, the inmate shall file with the coinplaint or notice of appeal an affidavit that the iznnate is seeking a waiver of the prepayment of the court's full filing fees and an affidavit of indigency. The affidavit of waiver and the affidavit of indigency shall contain all of the following: (1) A statement that sets forth the balance in the inmate account of the iiunate for each of the preceding six months, as certified by the institutional cashier; (enzphaszs added) A review of the petition iiidicates that Relator did include an affidavit of indigency, but has not provided either (1) a statement of his account as certified by the institutional cashier, or (2) a statement of all things of value. Accordingly, this matter must be dismissed. B. Relator has not stated a claim upon which relief can be granted. 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. Fahnhulleh 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. 11-'ur Ye (1995), 72 Ohio St.3d 596; Yor k v. Ohio State Ilighway Patrol (1991), 60 Ohio St.3d 143. Relator, through his attorney, already received one copy of the transcript of the trial court proceedings. The transcript was 678 pages in length and cost the court $1695.00 (Exhibit A). The transcript has been filed and is available for view online. Having already preformed this action once, the court is under no obligation to do so again without payment in full. C. The Franklin County Court of Common Pleas is not a legal entity subject to suit. 4
Under Ohio law, the Franklin County Court of Common Pleas is not a legal entity capable of being sued separately from the county government. Petty v. Cnty. of Franklin, Ohio, 478 )i.3d 341, 347 (6th Cir. 2007), The Ohio Revised Code delegates the task of local governance to geographic "political subdivisions," such as counties. `A political subdivision of the state is a geographic or territorial division of the state rather than a functional division of the state. Almost invariably the statutory definitions of "political subdivision" involve a geographic area of the state Nvhich has been empowered to perform certain functions of local government within such geographic area. Accordingly, a "political subdivision of the state" is a geographic or territorial portion of the state to which there has been delegated certain local governn-iental functions to perfornl within such geographic area.' Fair v. School Eynp. Retirement Systern of C)hio, 44 Ohio App.2d 115, 119, 335 N.E.2d 868. (10th Dist.1975), as cited in Rieger v. Marsh, 2011 WL 6930159 (Ohio App. 2 Dist.), 2011 -Ohio- 6808. See generalzy R.C. Title 3. Within the County, the Ohio Revised Code specifically dictates who is capable of suing and being sued. TheBoard of County Comn.-iissioners, as the representative of the political subdivision, is specifically authorized to sue or be sued under the Ohio Revised Code. R.C. 305.12. However, the Court of Common Pleas is not separately authorized to sue or be sued on behalf of the "office" itself, because it is not a separate legal entity fton7 the County govenunent. Accordingly, the only proper organizational defendant is the Board of County Commissioners, as established in R.C. 305,12. Therefore, the Franklin County Court of Con-imon Pleas (Respondent) is not,suijuris. CONCLUSION Respondent respectfully requests the Court g-rant this motion and that Relator's petition for a Writ of Mandamus be dismissed. Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANK.LIN COUNTY, OHIO
Jeff ^. ^fogers. (006.93^ nk County Prosecutor's Office, Civil Division 373 S. High St., 13"' Floor Columbus, OH 43215 614-525-3520 (Phone); 614-525-6012 (Fax) j crogers@franklincountyohio.gov Counsel.for Respondent CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Motion and Memorandum in Support has been forwarded this 13th day of March 31, 2014 by regular LT.S. Mail to: ;favier Huznberto #A 628-315 Ross County Correctional Institute P.O. Box 7010, 16149SR 104 Chillicothe, Ohio 45601 693 ounty ProsecuWs Office, Civil Division 6
CLERK'SlAUDITt3R'S TRANSCRIPT FEE FOR AN INDIt;ENT DEFENDANT 7579 I^ 18 In the^m rsncan p Court of - ^ u yl*1j ^Clfaio. PIainGff: 1! Case Nra.....^, v. j m1*e-d um bgr"b _..._._._,..,,. efendan&party Reprosented In re: CLERK OF COURTS CERTIFICATION Attorney(s) far the DefendantlParty Represented: L. ra Q s..... 1. the Clerk of Courts, hereby certify that i!'1': ro I_ A. d lit y1 Pe '^ ^ ^/ 2 7 7,is (Court Repar#er's Name (C,owl 17eporters Tex ID) hereby an official stenographer of said court and is entitled to the following fees for making transcxipt(s) of. Clerk's signa u Date The transcript is ordered by the court for use by the Defendant or the DefendanYs attorney 8n the folkavqitg type of proceeding: o w Felony, misdemeanor, or juvenile proceeding Capital Offense trial proceedini - ; ^ Appeais proceeding Capital Offense appealsp "ing -2 Postconvictaan proceeding ' 'Capital Offense postconviction proce ecnv Other (explain) Date which above checked proceeding terminated: Original transcript of k`1$ pages or foiio at the rate of$2.50 per page or folio, =^- < i OR Still Pending (check if pending) Copy of transcript of pages or folio at the rate of $.` 0 per page or folio, = $ -' CG TOTAL NOTE: A COPY OF THE COtlRTREPOFZ'TER'S BILUNG MtlST 8E A7't'ACNED JUD+GMENT ENTR.IP The court finds that the transcript was ordered for use in the case of an Indigent person, that all rules and standards of the Ohio Pubiic Defender Commission and State Public Defender have been met and that an Affidavit of indigency! Financial Disclosure for the above referenced ciieat has been sent to the Office of the Ohio Public Defender or Is attached to this document. IT dj T REFORi= ORDERED that the transcript fees be, and are hereby approved In the amount of $ r^ ^^S' It is further ordered that the said amount be, and her y is, certified by the Court to the County Auditor for payment. Ri l ho L-d A ` ^f tf or AUDITOR'S CERTIFICATION The County Auditor in executing this certificate attests that the transcript was a true and accurate expense of said county's couat. County Number Warrant Number Warrant Date '-