McGrath v. McClelland

[Cite as McGrath v. McClelland, 2012-Ohio-157.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97209

STATE, EX REL. JOSEPH MCGRATH
RELATOR

vs.

JUDGE MCCLELLAND, ET AL.
RESPONDENTS

JUDGMENT:
WRIT DENIED

Writ of Mandamus and/or Prohibition
Motion No. 447897
Order No. 451114

RELEASE DATE: January 13, 2012

ATTORNEYS FOR RELATOR
 2
Joseph McGrath, Pro Se
No. 570-424
Grafton Correctional Institution
Grafton, Ohio 44044

ATTORNEYS FOR RESPONDENTS

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: James E. Moss, Esq.
Assistant County Prosecutor
9 Floor, Justice Center
ht

1200 Ontario Street
Cleveland, Ohio 44113

JAMES J. SWEENEY, J.:

{¶ 1} Joseph McGrath has filed a “complaint for a writ of mandmaus

and/or prohibition.” Through the complaint for extraordinary relief,

McGrath requests: (1) mandamus to compel Judge Robert McClelland to

vacate the criminal sentence imposed in State v. McGrath, Cuyahoga Cty.

Court of Common Pleas Case No. CR-388833 on the basis of the improper

imposition of postrelease control; (2) mandamus to compel Judge McClelland

to issue a final appealable order that complies with Crim.R. 32(C); (3)

mandamus to compel the Cuyahoga Cty. Clerk of Courts to return all monies

garnished from McGrath vis-a-vis the order to pay costs as entered in State v.

McGrath, supra; and (4) prohibition to prevent the Cuyahoga Cty. Clerk of

Courts from garnishing any of McGrath’s assets. Judge McClelland and the
 3
Cuyahoga Cty. Clerk of Courts have filed a joint motion for summary

judgment, which we grant for the following reasons. In addition, we grant

the request that McGrath be declared a vexatious litigator pursuant to

Loc.App.R. 23.

{¶ 2} Initially, we find that the doctrine of res judicata prevents

McGrath from seeking writs of mandmaus and prohibition. Res judicata

bars the litigation of all claims that were litigated or could have been litigated

in a prior legal action. State ex rel. Sneed v. Anderson, 114 Ohio St.3d 11,

2007-Ohio-2454, 866 N.E.2d 1084 ¶ 9; State ex rel. Mora v. Wilkinson, 105

Ohio St.3d 272 , 2005-Ohio-1509, 824 N.E.2d 1000 ¶ 14. McGrath has

previously raised the issues of a defective sentence based upon the improper

imposition of postrelease control, a final appealable order that complies with

Crim.R. 32(C), and the garnishment of assets in order to satisfy the

imposition of court costs, through two separate prior actions. In State ex rel.

McGrath v. Matia, et al., 8th Dist. No. 94147, 2010-Ohio-1987, McGrath

sought mandamus to vacate the sentence imposed in State v. McGrath, supra,

based upon the improper imposition of postrelease control. 1 This court

dismissed the complaint for a writ of mandmaus on April 30, 2010, finding

1
McGrath named both Judge David T. Matia and Judge Eileen A. Gallagher
as respondents. Judge Matia presided over Cuyahoga Cty. Court of Common Pleas
Case No. CR-352526 while Judge Gallagher presided over Cuyahoga Cty. Court of
Common Pleas Case No. CR-388833.
 4
that: (1) McGrath failed to establish his claims for relief in mandmaus; (2)

McGrath possessed an adequate remedy at law through a direct appeal; (3)

McGrath failed to establish his claims for prohibition; and (4) McGrath failed

to comply with the mandatary requirements of R.C. 2969.25, which requires

an affidavit of prior civil actions.

{¶ 3} In addition, McGrath filed a “complaint for an original writ of

mandamus and/or prohibition” in the Supreme Court of Ohio. State ex rel.

McGrath v. Gallagher, et al, Ohio Supreme Court Case No. 10-1830. Once

again, McGrath, through the complaint for an extraordinary writ of

mandamus and/or prohibition, attempted to raise the following issues based

upon the claim that postrelease control was improperly imposed at the time of

sentencing in CR-388833: (1) sentence was void; and (2) Cuyahoga Cty. Clerk

of Courts was improperly garnishing assets vis-a-vis the imposition of court

costs. On November 5, 2010, Judge Gallagher and the Cuyahoga Cty. Clerk

of Courts filed a joint motion to dismiss, based upon the argument of res

judicata. On December 29, 2010, the Supreme Court of Ohio granted the

motion to dismiss that was predicated upon the application of the doctrine of

res judicata. See State ex rel. McGrath v. Gallagher, et al, 127 Ohio St.3d

1483, 2010-Ohio-637, 939 N.E.2d 182.

{¶ 4} Once again, the doctrine of res judicata bars the relitigation of the

claims or issues that were raised or might have been raised within the two
 5

prior original actions as filed by McGrath . State ex rel. Sneed v. Anderson,

supra, 866 N.E.2d 1084; State ex rel. Mora v. Wilkinson, supra, 824 N.E.2d

1000. Specifically, the claims or issues of improper postrelease control, void

sentence, and the improper garnishment of assets in order to satisfy the

imposition of court costs, in CR-388833, are barred from relitigation by the

doctrine of res judicata.

{¶ 5} It must also be noted that any claims associated with the

imposition of court costs, and the collection of court costs, may not be

addressed by way of an extraordinary writ. McGrath possesses or possessed

an adequate remedy at law through a direct appeal. State ex rel.

Whittengerger v. Clarke, 89 Ohio St.3d 207, 2000-Ohio-136, 729 N.E.2d 756;

State ex rel. Recker v. Putnam Cty. Clerk of Courts, 87 Ohio St.3d 235,

1999-Ohio-37, 718 N.E.2d 1290; Hutton v. McMonagle, 8th Dist. No. 78821,

2001 WL 664139, *1 (June 7, 2001).

{¶ 6} Finally, we must address the request of Judge McClelland and the

Cuyahoga Cty. Clerk of Courts to declare McGrath a vexatious litigator.

Pursuant to Loc.App.R. 23(A), an original action shall be considered

frivolous if it is not reasonably grounded in fact or warranted by existing law.

Loc.App.R. 23(B) further provides that a party that habitually, persistently

and without reasonable cause engages in frivolous conduct, may be declared a

vexatious litigator subject to filing restrictions. In the case sub judice,
 6
McGrath previously filed two identical complaints for extraordinary writs of

mandamus and prohibition based upon the same facts and issues of a

defective sentence, postrelease control, and garnishment of assets in order to

pay court costs as ordered in CR-388833. Once again, through the present

complaint for writs of mandamus and prohibition, McGrath attempts to argue

the identical issues of a defective sentence, postrelease control, and

garnishment of assets in order to pay court costs as ordered in CR-388833.

We find that McGrath’s continued attempt to relitigate the issues of a

defective sentence, postrelease control, and court costs constitutes frivolous

conduct pursuant to Loc.App. R. 23(A). It must also be noted that McGrath

has continually taxed the limited resources of this court through the filing of

23 appeals and 13 original actions over the past 10 years. See Exhibit “A” as

attached to this opinion.

{¶ 7} Thus, we find McGrath to be a vexatious litigator under Loc.App.R.

23. Accordingly, McGrath is prohibited from instituting any future legal

proceedings in the Eighth District Court of Appeals without first obtaining

leave and is further prohibited from filing any proceedings in the Eighth

District Court of Appeals without the filing fee and security for costs required

by Loc.App.R. 3(A). Any request to file an appeal or original action shall be

submitted to the clerk of this court for the court’s review.
 7
{¶ 8} Accordingly, we grant the joint motion for summary judgment filed

by Judge McClelland and the Cuyahoga Cty. Clerk of Courts. It is further

ordered that McGrath be declared a vexatious litigator pursuant to

Loc.App.R. 23. Costs to McGrath. A copy of this judgment shall be served

upon all parties as required by Civ.R. 58(B).

Writ denied.

JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
Exhibit “A”

1) State v. McGrath, Cuyahoga App. No. 77896, filed 4/24/00

2) State v. McGrath, Cuyahoga App. No. 79976, filed 7/16/01

3) State v. McGrath, Cuyahoga App. No. 80645, filed 12/18/01

4) State v. McGrath, Cuyahoga App. No. 80700, filed 1/2/02

5) Cleveland v. McGrath, Cuyahoga App. No. 8122, filed 4/29/02

6) McGrath v. Gallagher, Cuyahoga App. No. 81241, filed 5/22/02

7) McGrath v. Cuyahoga Cty. Corrections Center, Cuyahoga App. No.
81505, filed 7/5/02

8) State ex rel. McGrath v. Ohio Adult Parole Authority, et al,
Cuyahoga App. No. 82287, filed 1/7/03
 8

9) State ex rel. McGrath v. Gilligan, Cuyahoga App. No. 83884, filed
12/4/03

10) McGrath v. Ohio Adult Parole Authority, Cuyahoga App. No. 84362,
filed 3/19/04

11) State v. McGrath, Cuyahoga App. No. 85046, filed 8/3/04

12) State ex rel. McGrath v. Parma Muni. Court, Cuyahoga App. No.
85601, filed 11/26/04

13) State ex rel. McGrath v. McDonnell, Cuyahoga App. No. 87368, filed
11/23/05

14) State ex rel. McGrath v. Cuyahoga Cty. Court of Common Pleas,
Cuyahoga App. No. 89924, filed 5/25/07

15) McGrath v. McFaul, Cuyahoga App. No. 89956, filed 6/4/07

16) McGrath v. McFaul, Cuyahoga App. No. 90043, filed 6/21/07

17) State v. McGrath, Cuyahoga App. No. 91192, filed 3/24/08

18) Parma v. McGrath, Cuyahoga App. No. 91220, filed 3/26/08

19) State v. McGrath, Cuyahoga App. No. 91259, filed 4/8/08

20) State v. McGrath, Cuyahoga App. No. 91261, filed 4/8/08

21) State v. McGrath, Cuyahoga App. No. 92971, filed 3/12/09

22) State v. McGrath, Cuyahoga App. No. 93055, filed 3/27/09

23) State v. McGrath, Cuyahoga App. No. 93110, filed 4/7/09

24) State v. McGrath, Cuyahoga App. No. 93444, filed 6/11/09

25) State v. McGrath, Cuyahoga App. No. 93445, filed 6/11/09

26) State v. McGrath, Cuyahoga App. No. 94005, filed 9/28/09
 9

27) State ex rel. McGrath v. Matia, Cuyahoga App. No. 94147, filed
10/23/09

28) State v. McGrath, Cuyahoga App. No. 94171, filed 10/29/09

29) State v. McGrath, Cuyahoga App. No. 94229, filed 11/10/09

30) State ex rel. McGrath v. McDonnell, Cuyahoga App. No. 94819, filed
3/15/10

31) McGrath v. Bassett, Cuyahoga App. No. 96360, filed 2/1/11

32) State v. McGrath, Cuyahoga App. No. 96821, filed 5/20/11

33) State v. McGrath, Cuyahoga App. No. 96993, filed 7/1/11

34) State ex rel. McGrath v. Calabrese, Cuyahoga App. No. 97082,
filed 7/25/11

35) State v. McGrath, Cuyahoga App. No. 97207, filed 8/25/11

36) State ex rel. McGrath v. McClelland, Cuyahoga App. No. 97209,
filed 8/26/11