State v. Fuerst, Unpublished Decision (5-6-1999) ( 1999 )

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 exrel. 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