Butler v. Reinbold , 2012 Ohio 351 ( 2012 )

[Cite as Butler v. Reinbold, 2012-Ohio-351.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JEFFREY L. BUTLER, pro se
Relator
-vs-
CHIEF C., NANCY REINBOLD, et al.
Respondent
: JUDGES:
: W. Scott Gwin, P.J.
: Sheila G. Farmer, J.
: Julie A. Edwards, J.
:
: Case No. 2011CA00201
:
:
: OPINION
CHARACTER OF PROCEEDING: Writ of Mandamus Complaint
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 30, 2012
APPEARANCES:
For Relator For Respondent Reinbold
JEFFREY L. BUTLER MICHAEL BICKIS
Inmate #570-508, 3 DORM Assistant Prosecuting Attorney
Marion Correctional Institution 110 Central Plaza, South
Box 57 Suite #510
Marion, Ohio 43301-0057 Canton, Ohio 44702
Edwards, J.
{¶1} Relator, Jeffrey Butler, has filed a petition for writ of mandamus. R.C.
2731.04 governs actions in mandamus and provides, “Application for the writ of
mandamus must be by petition, in the name of the state on the relation of the person
applying, and verified by affidavit. The court may require notice of it to be given to the
defendant, or grant an order to show cause why it should not be allowed, or allow the
writ without notice.”
{¶2} Relator has not brought the action in the name of the state which warrants
dismissal of this action. In re Barksdale, 2010 WL 323413, 1 (Ohio App. 8 Dist.).
{¶3} Even had the petition been properly captioned, we find Relator has failed
to state a claim upon which relief may be granted. Relator initially solely named Clerk
Nancy Reinbold as a Respondent, however, he amended his petition to include the
Stark County Prosecutor as well as Assistant Prosecutor Michael Bickis.
{¶4} Respondent, Nancy Reinbold, Clerk of Courts, has filed a Motion to
Dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief may be
granted. We sua sponte review the complaint as it relates to Respondent Bickis and
Respondent the Stark County Prosecutor. The Supreme Court has held sua sponte
dismissal of a complaint “is proper where the complaint is frivolous or the claimant
obviously cannot prevail on the facts alleged in the complaint.”
State ex rel. Peeples v. Anderson (1995). 73 Ohio St.3d 559, 560, 653 N.E.2d 371, 373.
{¶5} Relator is seeking a writ which would require Respondents to rescind an
order issued by Judge Charles Brown imposing court costs upon Relator.
{¶6} For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondent must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶7} Respondents never issued an order to collect court costs. Respondent
Reinbold merely sent an invoice to the correctional institution detailing the amount owed
by Relator as imposed by Judge Brown. The Supreme Court has explained the
difference between the roles of the trial court and the clerk of the trial court, “As we have
discussed above, R.C. 2947.23 requires a judge to assess costs against all convicted
criminal defendants, and waiver of costs is permitted-but not required-if the defendant is
indigent. It logically follows that a clerk of courts may attempt the collection of assessed
court costs from an indigent defendant.” State v. White, 103 Ohio St.3d 580, 583, 817
N.E.2d 393, 396 - 397 (2004).
{¶8} Respondent Bickis simply represents Respondent Reinbold in this action.
The petition fails to state any cause of action against Respondent Bickis.
{¶9} Respondent the Stark County Prosecuting Attorney like Respondent
Reinbold has no authority to rescind an order issued by a judge of the Court of Common
Pleas. We likewise find the complaint fails to state a claim upon which relief may be
granted against Respondent the Stark County Prosecuting Attorney.
{¶10} Respondents have no authority to rescind an order issued by a judge.
Further, Respondent Reinbold does have the right to attempt to collect the assessed
court costs. Because Relator has failed to demonstrate a clear legal duty on the part of
Respondents to rescind an order issued by a judge, the requirements for a writ of
mandamus are not met. Therefore, the motion to dismiss the petition for failure to state
a claim upon which relief may be granted is sustained.
{¶11} The instant cause of action is dismissed.
By: Edwards, J.
Gwin, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/ads1207
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JEFFREY L. BUTLER, pro se :
:
Relator :
:
:
-vs- : JUDGMENT ENTRY
:
CHIEF C., NANCY REINBOLD, et al. :
:
Respondent : CASE NO. 2011CA00201
For the reasons stated in our accompanying Memorandum-Opinion on file, the
Complaint is dismissed. Costs assessed to Relator.
_________________________________
_________________________________
_________________________________
JUDGES