Whiting v. Porter

191 N.E.2d 373, 91 Ohio Law. Abs. 139, 1960 Ohio App. LEXIS 778

Opinion

Bryant, P. J.

James R. Whiting, an inmate of the Ohio Penitentiary, has filed his petition in this court seeking a writ of mandamus against R. E. Porter described in the petition as being “of the Mail Office of the Ohio State Penitentiary.” Whiting contends in his petition that Porter refused to permit petitioner to mail certain documents directed to the U. S. District Court.

Whiting seeks an order somewhat in the nature of an injunction providing that “no further obsticals (obstacles) shall be placed in depriving an Inmate his right to appeal within the time provided by statute.” The Attorney General of Ohio, as counsel for respondent, has filed a motion that the petition be stricken from the files for two reasons as follows: (1) an individual cannot be the plaintiff in a mandamus action, and (2) the petition and every paragraph thereof is made of redundant and irrelevant matter.

Whether the attack on the petition be treated as a motion or as a demurrer, it is well taken and should be sustained. If we treat the motion as a general demurrer, it would appear that the petition fails to state a cause of action and for that reason the petition will be dismissed.

Duffy, J., and Du;ffey, J., concur.