[Cite as McGrath v. McClelland, 2012-Ohio-157.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97209
STATE, EX REL. JOSEPH MCGRATH RELATOR
vs.
JUDGE MCCLELLAND, ET AL. RESPONDENTS
JUDGMENT: WRIT DENIED
Writ of Mandamus and/or Prohibition Motion No. 447897 Order No. 451114
RELEASE DATE: January 13, 2012
ATTORNEYS FOR RELATOR 2 Joseph McGrath, Pro Se No. 570-424 Grafton Correctional Institution Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENTS
William D. Mason, Esq. Cuyahoga County Prosecutor By: James E. Moss, Esq. Assistant County Prosecutor 9 Floor, Justice Center ht
1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Joseph McGrath has filed a “complaint for a writ of mandmaus
and/or prohibition.” Through the complaint for extraordinary relief,
McGrath requests: (1) mandamus to compel Judge Robert McClelland to
vacate the criminal sentence imposed in State v. McGrath, Cuyahoga Cty.
Court of Common Pleas Case No. CR-388833 on the basis of the improper
imposition of postrelease control; (2) mandamus to compel Judge McClelland
to issue a final appealable order that complies with Crim.R. 32(C); (3)
mandamus to compel the Cuyahoga Cty. Clerk of Courts to return all monies
garnished from McGrath vis-a-vis the order to pay costs as entered in State v.
McGrath, supra; and (4) prohibition to prevent the Cuyahoga Cty. Clerk of
Courts from garnishing any of McGrath’s assets. Judge McClelland and the 3 Cuyahoga Cty. Clerk of Courts have filed a joint motion for summary
judgment, which we grant for the following reasons. In addition, we grant
the request that McGrath be declared a vexatious litigator pursuant to
Loc.App.R. 23.
{¶ 2} Initially, we find that the doctrine of res judicata prevents
McGrath from seeking writs of mandmaus and prohibition. Res judicata
bars the litigation of all claims that were litigated or could have been litigated
in a prior legal action. State ex rel. Sneed v. Anderson, 114 Ohio St.3d 11,
2007-Ohio-2454, 866 N.E.2d 1084 ¶ 9; State ex rel. Mora v. Wilkinson, 105
Ohio St.3d 272 , 2005-Ohio-1509, 824 N.E.2d 1000 ¶ 14. McGrath has
previously raised the issues of a defective sentence based upon the improper
imposition of postrelease control, a final appealable order that complies with
Crim.R. 32(C), and the garnishment of assets in order to satisfy the
imposition of court costs, through two separate prior actions. In State ex rel.
McGrath v. Matia, et al., 8th Dist. No. 94147, 2010-Ohio-1987, McGrath
sought mandamus to vacate the sentence imposed in State v. McGrath, supra,
based upon the improper imposition of postrelease control. 1 This court
dismissed the complaint for a writ of mandmaus on April 30, 2010, finding
1 McGrath named both Judge David T. Matia and Judge Eileen A. Gallagher as respondents. Judge Matia presided over Cuyahoga Cty. Court of Common Pleas Case No. CR-352526 while Judge Gallagher presided over Cuyahoga Cty. Court of Common Pleas Case No. CR-388833. 4 that: (1) McGrath failed to establish his claims for relief in mandmaus; (2)
McGrath possessed an adequate remedy at law through a direct appeal; (3)
McGrath failed to establish his claims for prohibition; and (4) McGrath failed
to comply with the mandatary requirements of R.C. 2969.25, which requires
an affidavit of prior civil actions.
{¶ 3} In addition, McGrath filed a “complaint for an original writ of
mandamus and/or prohibition” in the Supreme Court of Ohio. State ex rel.
McGrath v. Gallagher, et al, Ohio Supreme Court Case No. 10-1830. Once
again, McGrath, through the complaint for an extraordinary writ of
mandamus and/or prohibition, attempted to raise the following issues based
upon the claim that postrelease control was improperly imposed at the time of
sentencing in CR-388833: (1) sentence was void; and (2) Cuyahoga Cty. Clerk
of Courts was improperly garnishing assets vis-a-vis the imposition of court
costs. On November 5, 2010, Judge Gallagher and the Cuyahoga Cty. Clerk
of Courts filed a joint motion to dismiss, based upon the argument of res
judicata. On December 29, 2010, the Supreme Court of Ohio granted the
motion to dismiss that was predicated upon the application of the doctrine of
res judicata. See State ex rel. McGrath v. Gallagher, et al, 127 Ohio St.3d
1483, 2010-Ohio-637, 939 N.E.2d 182.
{¶ 4} Once again, the doctrine of res judicata bars the relitigation of the
claims or issues that were raised or might have been raised within the two 5
prior original actions as filed by McGrath . State ex rel. Sneed v. Anderson,
supra, 866 N.E.2d 1084; State ex rel. Mora v. Wilkinson, supra, 824 N.E.2d
1000. Specifically, the claims or issues of improper postrelease control, void
sentence, and the improper garnishment of assets in order to satisfy the
imposition of court costs, in CR-388833, are barred from relitigation by the
doctrine of res judicata.
{¶ 5} It must also be noted that any claims associated with the
imposition of court costs, and the collection of court costs, may not be
addressed by way of an extraordinary writ. McGrath possesses or possessed
an adequate remedy at law through a direct appeal. State ex rel.
Whittengerger v. Clarke, 89 Ohio St.3d 207, 2000-Ohio-136, 729 N.E.2d 756;
State ex rel. Recker v. Putnam Cty. Clerk of Courts, 87 Ohio St.3d 235,
1999-Ohio-37, 718 N.E.2d 1290; Hutton v. McMonagle, 8th Dist. No. 78821,
2001 WL 664139, *1 (June 7, 2001).
{¶ 6} Finally, we must address the request of Judge McClelland and the
Cuyahoga Cty. Clerk of Courts to declare McGrath a vexatious litigator.
Pursuant to Loc.App.R. 23(A), an original action shall be considered
frivolous if it is not reasonably grounded in fact or warranted by existing law.
Loc.App.R. 23(B) further provides that a party that habitually, persistently
and without reasonable cause engages in frivolous conduct, may be declared a
vexatious litigator subject to filing restrictions. In the case sub judice, 6 McGrath previously filed two identical complaints for extraordinary writs of
mandamus and prohibition based upon the same facts and issues of a
defective sentence, postrelease control, and garnishment of assets in order to
pay court costs as ordered in CR-388833. Once again, through the present
complaint for writs of mandamus and prohibition, McGrath attempts to argue
the identical issues of a defective sentence, postrelease control, and
garnishment of assets in order to pay court costs as ordered in CR-388833.
We find that McGrath’s continued attempt to relitigate the issues of a
defective sentence, postrelease control, and court costs constitutes frivolous
conduct pursuant to Loc.App. R. 23(A). It must also be noted that McGrath
has continually taxed the limited resources of this court through the filing of
23 appeals and 13 original actions over the past 10 years. See Exhibit “A” as
attached to this opinion.
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[Cite as McGrath v. McClelland, 2012-Ohio-157.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97209
STATE, EX REL. JOSEPH MCGRATH RELATOR
vs.
JUDGE MCCLELLAND, ET AL. RESPONDENTS
JUDGMENT: WRIT DENIED
Writ of Mandamus and/or Prohibition Motion No. 447897 Order No. 451114
RELEASE DATE: January 13, 2012
ATTORNEYS FOR RELATOR 2 Joseph McGrath, Pro Se No. 570-424 Grafton Correctional Institution Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENTS
William D. Mason, Esq. Cuyahoga County Prosecutor By: James E. Moss, Esq. Assistant County Prosecutor 9 Floor, Justice Center ht
1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Joseph McGrath has filed a “complaint for a writ of mandmaus
and/or prohibition.” Through the complaint for extraordinary relief,
McGrath requests: (1) mandamus to compel Judge Robert McClelland to
vacate the criminal sentence imposed in State v. McGrath, Cuyahoga Cty.
Court of Common Pleas Case No. CR-388833 on the basis of the improper
imposition of postrelease control; (2) mandamus to compel Judge McClelland
to issue a final appealable order that complies with Crim.R. 32(C); (3)
mandamus to compel the Cuyahoga Cty. Clerk of Courts to return all monies
garnished from McGrath vis-a-vis the order to pay costs as entered in State v.
McGrath, supra; and (4) prohibition to prevent the Cuyahoga Cty. Clerk of
Courts from garnishing any of McGrath’s assets. Judge McClelland and the 3 Cuyahoga Cty. Clerk of Courts have filed a joint motion for summary
judgment, which we grant for the following reasons. In addition, we grant
the request that McGrath be declared a vexatious litigator pursuant to
Loc.App.R. 23.
{¶ 2} Initially, we find that the doctrine of res judicata prevents
McGrath from seeking writs of mandmaus and prohibition. Res judicata
bars the litigation of all claims that were litigated or could have been litigated
in a prior legal action. State ex rel. Sneed v. Anderson, 114 Ohio St.3d 11,
2007-Ohio-2454, 866 N.E.2d 1084 ¶ 9; State ex rel. Mora v. Wilkinson, 105
Ohio St.3d 272 , 2005-Ohio-1509, 824 N.E.2d 1000 ¶ 14. McGrath has
previously raised the issues of a defective sentence based upon the improper
imposition of postrelease control, a final appealable order that complies with
Crim.R. 32(C), and the garnishment of assets in order to satisfy the
imposition of court costs, through two separate prior actions. In State ex rel.
McGrath v. Matia, et al., 8th Dist. No. 94147, 2010-Ohio-1987, McGrath
sought mandamus to vacate the sentence imposed in State v. McGrath, supra,
based upon the improper imposition of postrelease control. 1 This court
dismissed the complaint for a writ of mandmaus on April 30, 2010, finding
1 McGrath named both Judge David T. Matia and Judge Eileen A. Gallagher as respondents. Judge Matia presided over Cuyahoga Cty. Court of Common Pleas Case No. CR-352526 while Judge Gallagher presided over Cuyahoga Cty. Court of Common Pleas Case No. CR-388833. 4 that: (1) McGrath failed to establish his claims for relief in mandmaus; (2)
McGrath possessed an adequate remedy at law through a direct appeal; (3)
McGrath failed to establish his claims for prohibition; and (4) McGrath failed
to comply with the mandatary requirements of R.C. 2969.25, which requires
an affidavit of prior civil actions.
{¶ 3} In addition, McGrath filed a “complaint for an original writ of
mandamus and/or prohibition” in the Supreme Court of Ohio. State ex rel.
McGrath v. Gallagher, et al, Ohio Supreme Court Case No. 10-1830. Once
again, McGrath, through the complaint for an extraordinary writ of
mandamus and/or prohibition, attempted to raise the following issues based
upon the claim that postrelease control was improperly imposed at the time of
sentencing in CR-388833: (1) sentence was void; and (2) Cuyahoga Cty. Clerk
of Courts was improperly garnishing assets vis-a-vis the imposition of court
costs. On November 5, 2010, Judge Gallagher and the Cuyahoga Cty. Clerk
of Courts filed a joint motion to dismiss, based upon the argument of res
judicata. On December 29, 2010, the Supreme Court of Ohio granted the
motion to dismiss that was predicated upon the application of the doctrine of
res judicata. See State ex rel. McGrath v. Gallagher, et al, 127 Ohio St.3d
1483, 2010-Ohio-637, 939 N.E.2d 182.
{¶ 4} Once again, the doctrine of res judicata bars the relitigation of the
claims or issues that were raised or might have been raised within the two 5
prior original actions as filed by McGrath . State ex rel. Sneed v. Anderson,
supra, 866 N.E.2d 1084; State ex rel. Mora v. Wilkinson, supra, 824 N.E.2d
1000. Specifically, the claims or issues of improper postrelease control, void
sentence, and the improper garnishment of assets in order to satisfy the
imposition of court costs, in CR-388833, are barred from relitigation by the
doctrine of res judicata.
{¶ 5} It must also be noted that any claims associated with the
imposition of court costs, and the collection of court costs, may not be
addressed by way of an extraordinary writ. McGrath possesses or possessed
an adequate remedy at law through a direct appeal. State ex rel.
Whittengerger v. Clarke, 89 Ohio St.3d 207, 2000-Ohio-136, 729 N.E.2d 756;
State ex rel. Recker v. Putnam Cty. Clerk of Courts, 87 Ohio St.3d 235,
1999-Ohio-37, 718 N.E.2d 1290; Hutton v. McMonagle, 8th Dist. No. 78821,
2001 WL 664139, *1 (June 7, 2001).
{¶ 6} Finally, we must address the request of Judge McClelland and the
Cuyahoga Cty. Clerk of Courts to declare McGrath a vexatious litigator.
Pursuant to Loc.App.R. 23(A), an original action shall be considered
frivolous if it is not reasonably grounded in fact or warranted by existing law.
Loc.App.R. 23(B) further provides that a party that habitually, persistently
and without reasonable cause engages in frivolous conduct, may be declared a
vexatious litigator subject to filing restrictions. In the case sub judice, 6 McGrath previously filed two identical complaints for extraordinary writs of
mandamus and prohibition based upon the same facts and issues of a
defective sentence, postrelease control, and garnishment of assets in order to
pay court costs as ordered in CR-388833. Once again, through the present
complaint for writs of mandamus and prohibition, McGrath attempts to argue
the identical issues of a defective sentence, postrelease control, and
garnishment of assets in order to pay court costs as ordered in CR-388833.
We find that McGrath’s continued attempt to relitigate the issues of a
defective sentence, postrelease control, and court costs constitutes frivolous
conduct pursuant to Loc.App. R. 23(A). It must also be noted that McGrath
has continually taxed the limited resources of this court through the filing of
23 appeals and 13 original actions over the past 10 years. See Exhibit “A” as
attached to this opinion.
{¶ 7} Thus, we find McGrath to be a vexatious litigator under Loc.App.R.
23. Accordingly, McGrath is prohibited from instituting any future legal
proceedings in the Eighth District Court of Appeals without first obtaining
leave and is further prohibited from filing any proceedings in the Eighth
District Court of Appeals without the filing fee and security for costs required
by Loc.App.R. 3(A). Any request to file an appeal or original action shall be
submitted to the clerk of this court for the court’s review. 7 {¶ 8} Accordingly, we grant the joint motion for summary judgment filed
by Judge McClelland and the Cuyahoga Cty. Clerk of Courts. It is further
ordered that McGrath be declared a vexatious litigator pursuant to
Loc.App.R. 23. Costs to McGrath. A copy of this judgment shall be served
upon all parties as required by Civ.R. 58(B).
Writ denied.
JAMES J. SWEENEY, JUDGE
MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR Exhibit “A”
1) State v. McGrath, Cuyahoga App. No. 77896, filed 4/24/00
2) State v. McGrath, Cuyahoga App. No. 79976, filed 7/16/01
3) State v. McGrath, Cuyahoga App. No. 80645, filed 12/18/01
4) State v. McGrath, Cuyahoga App. No. 80700, filed 1/2/02
5) Cleveland v. McGrath, Cuyahoga App. No. 8122, filed 4/29/02
6) McGrath v. Gallagher, Cuyahoga App. No. 81241, filed 5/22/02
7) McGrath v. Cuyahoga Cty. Corrections Center, Cuyahoga App. No. 81505, filed 7/5/02
8) State ex rel. McGrath v. Ohio Adult Parole Authority, et al, Cuyahoga App. No. 82287, filed 1/7/03 8
9) State ex rel. McGrath v. Gilligan, Cuyahoga App. No. 83884, filed 12/4/03
10) McGrath v. Ohio Adult Parole Authority, Cuyahoga App. No. 84362, filed 3/19/04
11) State v. McGrath, Cuyahoga App. No. 85046, filed 8/3/04
12) State ex rel. McGrath v. Parma Muni. Court, Cuyahoga App. No. 85601, filed 11/26/04
13) State ex rel. McGrath v. McDonnell, Cuyahoga App. No. 87368, filed 11/23/05
14) State ex rel. McGrath v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 89924, filed 5/25/07
15) McGrath v. McFaul, Cuyahoga App. No. 89956, filed 6/4/07
16) McGrath v. McFaul, Cuyahoga App. No. 90043, filed 6/21/07
17) State v. McGrath, Cuyahoga App. No. 91192, filed 3/24/08
18) Parma v. McGrath, Cuyahoga App. No. 91220, filed 3/26/08
19) State v. McGrath, Cuyahoga App. No. 91259, filed 4/8/08
20) State v. McGrath, Cuyahoga App. No. 91261, filed 4/8/08
21) State v. McGrath, Cuyahoga App. No. 92971, filed 3/12/09
22) State v. McGrath, Cuyahoga App. No. 93055, filed 3/27/09
23) State v. McGrath, Cuyahoga App. No. 93110, filed 4/7/09
24) State v. McGrath, Cuyahoga App. No. 93444, filed 6/11/09
25) State v. McGrath, Cuyahoga App. No. 93445, filed 6/11/09
26) State v. McGrath, Cuyahoga App. No. 94005, filed 9/28/09 9
27) State ex rel. McGrath v. Matia, Cuyahoga App. No. 94147, filed 10/23/09
28) State v. McGrath, Cuyahoga App. No. 94171, filed 10/29/09
29) State v. McGrath, Cuyahoga App. No. 94229, filed 11/10/09
30) State ex rel. McGrath v. McDonnell, Cuyahoga App. No. 94819, filed 3/15/10
31) McGrath v. Bassett, Cuyahoga App. No. 96360, filed 2/1/11
32) State v. McGrath, Cuyahoga App. No. 96821, filed 5/20/11
33) State v. McGrath, Cuyahoga App. No. 96993, filed 7/1/11
34) State ex rel. McGrath v. Calabrese, Cuyahoga App. No. 97082, filed 7/25/11
35) State v. McGrath, Cuyahoga App. No. 97207, filed 8/25/11
36) State ex rel. McGrath v. McClelland, Cuyahoga App. No. 97209, filed 8/26/11