State ex rel. Sherrills v McMonagle

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[Cite as State ex rel. Sherrills v McMonagle, 2009-Ohio-2376.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 92993 STATE, EX REL., DARIES SHERRILLS RELATOR vs. JUDGE RICHARD MCMONAGLE RESPONDENT JUDGMENT: WRIT DENIED WRIT OF MANDAMUS MOTION NO. 420388 ORDER NO. 421674 2 RELEASE DATE: May 18, 2009 FOR RELATOR: Daries Y. Sherrills, pro se Inmate No. 206-377 Marion Correctional Inst. P.O. Box 57 Marion, Ohio 43301-0057 ATTORNEYS FOR RESPONDENT: William D. Mason Cuyahoga County Prosecutor By: James Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 JUDGE MARY J. BOYLE: {¶ 1} On March 31, 2009 relator Daries Sherrills filed a writ of mandamus against Judge Richard McMonagle asking this court to order Judge McMonagle to grant discovery and his request for production of documents related to his motions for post-conviction relief. On April 2, 2009 the respondent, thru the Cuyahoga County Prosecutor s Office, filed a motion for summary judgment which was opposed by Sherrills. For the following reasons, we grant the motion for summary judgment. 3 {¶ 2} Initially we find that the petition for a writ of mandamus is fatally defective since it fails to comply with Loc.App.R. 45(B)(1)(a) which mandates that the complaint be supported by an affidavit from the plaintiff or relator which specifies the details of the claim. The failure to comply with the supporting affidavit provision of Loc.App.R. 45(B)(1)(a) subjects the complaint to dismissal. State ex rel. Owens v. McCormick (Feb. 18, 1999), Cuyahoga App. No. 75515. {¶ 3} Despite the above procedural defect, in order for this court to issue a writ of mandamus, a relator must establish that: 1) the relator possesses a clear legal right to the relief prayed; 2) the respondent possesses a clear legal duty to perform the requested act; and 3) the relator possesses no plain and adequate remedy in the ordinary course of the law. State ex rel. Manson v. Morris (1993), 66 Ohio St. 3d 440, 613 N.E.2d 232, citing State ex rel. Berger v. McMonagle (1983), 6 Ohio St. 3d 28, 451 N.E.2d 225. Although mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehause (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. {¶ 4} Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. It should not be issued in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 4 581, 113 N.E.2d 14; State ex rel. Cannole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850. {¶ 5} Additionally, if a relator had an adequate remedy at law, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108; State ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564 N.E.2d 86; State ex rel. Provolone Pizza , LLC. v. Callahan, Cuyahoga App. No. 88626, 2006-Ohio-660; State ex rel. Grahek v. McCafferty, Cuyahoga App. No. 88614, 2006-Ohio-4741. {¶ 6} The filings indicate that Sherrills was convicted of robbery and aggravated burglary. Both convictions were subsequently affirmed by this court. See State v. Sherrills (Mar. 17, 1988), Cuyahoga App. No. 53535; and State v. Sherrills (Apr. 7, 1977), Cuyahoga App. No. 35912. On February 19, 2009 Sherrills filed a motion for discovery in both lower court matters which were denied by Judge McMonagle on March 6, 2009. Sherrills then filed additional motions for discovery and requests for production of documents which were denied by Judge McMonagle on March 16, 2009. Sherrills then filed this mandamus action claiming that under the new open discovery rules set forth by the Cuyahoga County Court of Common Pleas that he has a right to the discovery. {¶ 7} However, as pointed out by respondent, there is no requirement for civil discovery in postconviction proceedings. State ex rel. Love v. Cuyahoga County 5 Prosecutor s Office, 87 Ohio St.3d 158, 1999-Ohio-314, 718 N.E.2d 426. See also State v. Foust, Cuyahoga App. No. 83771, 2005-Ohio-5331; State v. Taylor, Cuyahoga App. No. 80271, 2002-Ohio-2742. Consequently Sherrills failed to establish the first two prongs of mandamus. Additionally, we also find that Sherrills possessed an adequate remedy at law by way of appeal. While the time period to appeal Judge McMonagle s rulings have passed, Sherrill s failure to appeal those rulings also prohibits us from granting the action in mandamus. {¶ 8} Accordingly, since Sherrills cannot establish the necessary criteria for this court to grant his mandamus action, we grant the respondent s motion for summary judgment. Relator to bear costs. It is further ordered that the clerk shall serve upon all parties notice of this judgment and date of entry pursuant to Civ.R. 58(B). Writ denied. MARY J. BOYLE, JUDGE SEAN C. GALLAGHER, P.J., and PATRICIA A. BLACKMON, J., CONCUR

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