[Cite as Butler v. Reinbold,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JEFFREY L. BUTLER, pro se

Relator

-vs-

CHIEF C., NANCY REINBOLD, et al.

Respondent : JUDGES: : W. Scott Gwin, P.J. : Sheila G. Farmer, J. : Julie A. Edwards, J. : : Case No. 2011CA00201 : : : OPINION

CHARACTER OF PROCEEDING: Writ of Mandamus Complaint

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: January 30, 2012

APPEARANCES:

For Relator For Respondent Reinbold

JEFFREY L. BUTLER MICHAEL BICKIS Inmate #570-508, 3 DORM Assistant Prosecuting Attorney Marion Correctional Institution 110 Central Plaza, South Box 57 Suite #510 Marion, Ohio 43301-0057 Canton, Ohio 44702 Edwards, J.

{¶1} Relator, Jeffrey Butler, has filed a petition for writ of mandamus. R.C.

2731.04 governs actions in mandamus and provides, “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 court may require notice of it to be given to the

defendant, or grant an order to show cause why it should not be allowed, or allow the

writ without notice.”

{¶2} Relator has not brought the action in the name of the state which warrants

dismissal of this action. In re Barksdale,

, 1 (Ohio App. 8 Dist.).

{¶3} Even had the petition been properly captioned, we find Relator has failed

to state a claim upon which relief may be granted. Relator initially solely named Clerk

Nancy Reinbold as a Respondent, however, he amended his petition to include the

Stark County Prosecutor as well as Assistant Prosecutor Michael Bickis.

{¶4} Respondent, Nancy Reinbold, Clerk of Courts, has filed a Motion to

Dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief may be

granted. We sua sponte review the complaint as it relates to Respondent Bickis and

Respondent the Stark County Prosecutor. The Supreme Court has held sua sponte

dismissal of a complaint “is proper where the complaint is frivolous or the claimant

obviously cannot prevail on the facts alleged in the complaint.”

State ex rel. Peeples v. Anderson (1995).

,

.

{¶5} Relator is seeking a writ which would require Respondents to rescind an

order issued by Judge Charles Brown imposing court costs upon Relator. {¶6} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983),

, 6 OBR 50,

.

{¶7} Respondents never issued an order to collect court costs. Respondent

Reinbold merely sent an invoice to the correctional institution detailing the amount owed

by Relator as imposed by Judge Brown. The Supreme Court has explained the

difference between the roles of the trial court and the clerk of the trial court, “As we have

discussed above, R.C. 2947.23 requires a judge to assess costs against all convicted

criminal defendants, and waiver of costs is permitted-but not required-if the defendant is

indigent. It logically follows that a clerk of courts may attempt the collection of assessed

court costs from an indigent defendant.” State v. White,

,

, 396 - 397 (2004).

{¶8} Respondent Bickis simply represents Respondent Reinbold in this action.

The petition fails to state any cause of action against Respondent Bickis.

{¶9} Respondent the Stark County Prosecuting Attorney like Respondent

Reinbold has no authority to rescind an order issued by a judge of the Court of Common

Pleas. We likewise find the complaint fails to state a claim upon which relief may be

granted against Respondent the Stark County Prosecuting Attorney. {¶10} Respondents have no authority to rescind an order issued by a judge.

Further, Respondent Reinbold does have the right to attempt to collect the assessed

court costs. Because Relator has failed to demonstrate a clear legal duty on the part of

Respondents to rescind an order issued by a judge, the requirements for a writ of

mandamus are not met. Therefore, the motion to dismiss the petition for failure to state

a claim upon which relief may be granted is sustained.

{¶11} The instant cause of action is dismissed.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/ads1207

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT JEFFREY L. BUTLER, pro se : : Relator : : : -vs- : JUDGMENT ENTRY : CHIEF C., NANCY REINBOLD, et al. : : Respondent : CASE NO. 2011CA00201

For the reasons stated in our accompanying Memorandum-Opinion on file, the

Complaint is dismissed. Costs assessed to Relator.

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JUDGES