Opinion
No. 109716
07-15-2020
ALEXANDER NIKOOYI, Relator, v. CUYAHOGA COUNTY PROSECUTING DEPARTMENT, ET AL., Respondents.
Appearances: Alexander Nikooyi, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent Cuyahoga County Prosecutor's Office. Michael R. Gareau, Jr., Director of Law, and Bryan P. O'Malley, Assistant Director of Law, for respondent City of North Olmsted.
JOURNAL ENTRY AND OPINION JUDGMENT: PETITION DISMISSED Writ of Mandamus
Motion No. 539711
Order No. 539816
Appearances:
Alexander Nikooyi, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent Cuyahoga County Prosecutor's Office. Michael R. Gareau, Jr., Director of Law, and Bryan P. O'Malley, Assistant Director of Law, for respondent City of North Olmsted. MARY J. BOYLE, P.J.:
{¶ 1} Relator, Alexander Nikooyi, filed a petition for writ of mandamus seeking an order from this court directing respondents, the Cuyahoga County Prosecutor's Office and the city of North Olmsted, to bring criminal charges against two individuals. The petition is sua sponte dismissed for the reasons that follow.
The petition named as respondent the city of "North Olmsted Prosecuting Department."
The petition inappropriately asked this court to review evidence that was not included with the complaint, but contained in an online information storage service account that relator controls. Such information may not be considered part of the record in this case.
{¶ 2} The petition, filed on May 12, 2020, failed to comply with Civ.R. 10(A) by including the addresses of the parties in the case caption, which led to service issues in the case. Along with the petition, relator filed an application for alternative writ, which was denied by this court on May 14, 2020, and a regular case schedule was set. Due to service issues, one of the respondents, the Cuyahoga County Prosecutor's Office, filed for an extension of time to respond on June 5, 2020, which this court granted the same day. Respondent, the city of North Olmsted, filed a motion for extension of time to respond on June 8, 2020, which was granted on June 10, 2020.
{¶ 3} On June 12 and June 18, 2020, relator filed motions for leave to amend his petition with amended petitions attached. After no opposition was filed, on July 2, 2020, this court granted relator's second motion to amend, but recognized that his various amended petitions did not comply with Loc.App.R. 13.2 because the initial petition included the name of a juvenile and her parents and the various amended petitions did not fix this issue. The July 2, 2020 order directed him to file a petition that complied with Loc.App.R. 13.2 within seven days. The order warned relator that the failure to do so may result in the dismissal of the action.
This rule provides in part "[t]he following information is deemed 'personal and private' and shall not be included in any unsealed document filed with this court: * * * (c) a juvenile's name in any appeal, except for the juvenile's initials, or a generic term or abbreviation such as 'child[.]'" The rule goes on to state "[t]o the extent reference to another person is likely to reveal the identity of the juvenile, that person should also be identified by a generic term or initials[.]"
{¶ 4} On July 7, 2020, relator filed a third amended petition. The body of the petition redacted information prohibited by Loc.App.R. 13.2, with the exception of his name, but the documents attached to the third amended petition included information prohibited by Loc.App.R. 13.2 that was required to be redacted. Therefore, relator has failed to comply with this court's July 2, 2020 order. Pursuant to that order, this court sua sponte dismisses the action for failure to prosecute the action with the requisite diligence.
{¶ 5} Further, sua sponte dismissal is appropriate where a complaint or petition is frivolous or the claimant obviously cannot prevail on the facts alleged therein. State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 7. Relator cannot prevail in this action due the procedural defects outlined below.
{¶ 6} The petition and amended petitions file by relator do not comply with Civ.R. 10(A). "Civ.R. 10(A) requires a petitioner to list the proper parties and their respective addresses in the case caption." Greene v. Turner, 151 Ohio St.3d 513, 2017-Ohio-8305, 90 N.E.3d 901, ¶ 8 (dealing with a petition for writ of habeas corpus). The failure to comply with this provision is grounds for dismissal. Kneuss v. Sloan, 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242, ¶ 11; Jordan v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga No. 96013, 2011-Ohio-1813, ¶ 3, citing Clarke v. McFaul, 8th Dist. Cuyahoga No. 89447, 2007-Ohio-2520, ¶ 5. The case captions in the various petitions fail to contain the addresses of the parties.
{¶ 7} Relator also has failed to bring his action in the name of the state on the relation of the person applying. R.C. 2731.04 provides in part, "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 failure to comply with the statute is grounds for dismissal. Maloney v. Allen Cty. Court of Common Pleas, 173 Ohio St. 226, 181 N.E.2d 270 (1962). Further, "'if * * * a respondent in a mandamus action raises this R.C. 2731.04 defect and relators fail to seek leave to amend their complaint to comply with R.C. 2731.04, the mandamus action must be dismissed.'" Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 15, quoting Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 36. Relator's petitions fail to comply with R.C. 2731.04 because the action was not brought in the name of the state on his behalf.
Additionally, the third amended petition is not verified by affidavit. The petition filed on May 12, 2020, included an affidavit attesting to the veracity of the claims in the petition, but the third amended petition did not include such an affidavit. --------
{¶ 8} On July 1, 2020, respondent Cuyahoga County Prosecutor's Office filed a motion for summary judgment that raised the issue of relator's lack of compliance with R.C. 2731.04. Relator did not fix this defect in his third amended petition, filed July 7, 2020, or seek to file a fourth amended petition to address the lack of compliance. Accordingly, pursuant to Blankenship, the action must be dismissed.
{¶ 9} For all the forgoing reasons, this action for writ of mandamus is dismissed. Costs to relator. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
{¶ 10} Petition dismissed. /s/_________
MARY J. BOYLE, PRESIDING JUDGE SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR