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State v. Fuerst

Court of Appeals of Ohio, Eighth District, Cuyahoga County
May 6, 1999
No. 76022 (Ohio Ct. App. May. 6, 1999)

Opinion

No. 76022

Dated: May 6, 1999

JUDGMENT: DISMISSED.

APPEARANCES:

For relator:

CALVIN DRAKE, pro se #365-401.

For respondent:

WILLIAM D. MASON, Cuyahoga County Prosecutor, CATHIE T. CHANCELLOR, Assistant


Calvin Drake, relator, is seeking a writ of mandamus to compel respondents, Gerald E. Fuerst, Gerald T. McFaul and Carmen Marino, to, respectively, time-stamp and return an amendment to a complaint, investigate tampering with court records and issue a warrant, and indict and prosecute for tampering with court records. Respondents moved to dismiss the complaint for failure to state claims against them and, for the reasons that follow, we grant respondents' motion.

Relator has failed to support his complaint with an affidavit detailing the facts of his claim as required by Loc.App.R. 45(B)(1)(a). This omission alone warrants dismissal. State ex rel. Smith v. Rocky River Municipal Court(Dec. 3, 1998), Cuyahoga App. No. 75525, unreported.

In addition, relator has failed to allege the existence of any duty of the respondents which requires them to perform the requested acts. A complaint that fails to set forth a duty of respondents to perform the act requested fails to state a claim for relief in mandamus. State ex rel. Sharif v. McDonnell(Aug. 21. 1997), Cuyahoga App. No. 72705, unreported; State ex rel. Murawski v. Calabrese(Nov. 17, 1995), Cuyahoga App. No. 69659, unreported; State ex rel. Crawford v. State of Ohio(Mar. 7, 1994), Cuyahoga App. No. 66660, unreported.

Accordingly, respondents' motion to dismiss is granted. Costs to relator.

ANN DYKE. J., CONCURS

___________________________________ JAMES M. PORTER ADMINISTRATIVE JUDGE


Summaries of

State v. Fuerst

Court of Appeals of Ohio, Eighth District, Cuyahoga County
May 6, 1999
No. 76022 (Ohio Ct. App. May. 6, 1999)
Case details for

State v. Fuerst

Case Details

Full title:STATE OF OHIO EX REL. CALVIN DRAKE, RELATOR. v. GERALD E. FUERST, CLERK OF…

Court:Court of Appeals of Ohio, Eighth District, Cuyahoga County

Date published: May 6, 1999

Citations

No. 76022 (Ohio Ct. App. May. 6, 1999)