Patrick-Bey v. Cleveland Muni. Court

2014 Ohio 1249

• Court: Ohio Court of Appeals
• Decided: March 24, 2014
• Docket: 100974
• Status: Published

Opinion

[Cite as Patrick-Bey v. Cleveland Muni. Court, 2014-Ohio-1249.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100974

CLIFFORD PATRICK-BEY

RELATOR

vs.

CLEVELAND MUNICIPAL COURT RESPONDENT

JUDGMENT: DISMISSED

Writ of Mandamus Order No. 472891

RELEASE DATE: March 24, 2014 FOR RELATOR

Clifford Patrick-Bey, Etc., pro se 13413 Ashburton Road Cleveland, Ohio 44110

ATTORNEYS FOR RESPONDENT

Barbara A. Langhenry Law Director City of Cleveland

BY: Jonathan P. Barra Assistant Law Director 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114-1077 EILEEN T. GALLAGHER, J.:

{¶1} Clifford Patrick-Bey has filed a complaint for a writ of mandamus.

Patrick-Bey seeks a writ of mandamus in order to compel the Cleveland Municipal Court

to “enforce the [d]efault [j]udgment filed on August 26, 2013, as the [w]rit of discovery

submitted was not honored.” Sua sponte, we dismiss the complaint for a writ of

mandamus because it is procedurally defective and fails to state a claim upon which relief

can be granted.

{¶2} Initially, we find that the complaint for a writ of mandamus is improperly

captioned. A complaint for a writ of mandamus must be brought in the name of the state,

on relation of the person applying. The failure of Patrick-Bey to properly caption his

complaint warrants dismissal. Blankenship v. Blackwell, 103 Ohio St.3d 567,

2004-Ohio-5596, 817 N.E.2d 382; Maloney v. Allen Cty. Court of Common Pleas, 173

Ohio St. 226, 181 N.E.2d 270 (1962).

{¶3} Patrick-Bey has also failed to comply with Loc.App.R. 45(B)(1)(a), which

mandates that the complaint must be supported by an affidavit that specifies the details of

the claim. The failure of Patrick-Bey to comply with the supporting affidavit

requirement of Loc.App.R. 45(B)(1)(a) warrants dismissal of the complaint for a writ of

mandamus. State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d

124, 2009-Ohio-4688, 914 N.E.2d 402; Turner v. Russo, 8th Dist. Cuyahoga No. 87852,

2006-Ohio-4490; Barry v. Galvin, 8th Dist. Cuyahoga No. 85990, 2005-Ohio-2324. {¶4} Finally, Patrick-Bey fails to state a claim upon which relief can be granted

because he obviously cannot prevail on the facts alleged in the complaint. Mandamus

may be employed to compel a court to exercise judgment or discharge a function.

Mandamus may not be employed to control judicial discretion, such as ordering a court to

grant a default judgment, even if that discretion is grossly abused. State ex rel. Ney v.

Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). Furthermore, mandamus is not a

substitute for an appeal. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228

N.E.2d 631 (1967). The failure to state a claim, upon which relief can be granted,

warrants a sua sponte dismissal of the complaint for a writ of mandamus. State ex rel.

Peeples v. Anderson, 73 Ohio St.3d 559, 1995-Ohio-335, 653 N.E.2d 371.

{¶5} Accordingly, we sua sponte dismiss the complaint for a writ of mandamus.

Costs to Patrick-Bey. The court directs the clerk of court to serve all parties with notice

of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

{¶6} Complaint dismissed.

EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and PATRICIA ANN BLACKMON, J., CONCUR