Pruitt v. Kilbane

Full title: Michael Pruitt, Relator, v. Mary Kilbane, judge, et al., Respondent

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

Date published: Jun 21, 2004

2004 Ohio 3461 (Ohio Ct. App. 2004)

Opinion

Case No. 84606, Original Action.

DATE OF JOURNALIZATION: June 21, 2004.

Writ of habeas corpus.

Writ Dismissed. Order No. 360337

Edwin J. Vargas, Summers Vargas Co. LPA, 28001 Chagrin Blvd., Suite 300, Cleveland, Ohio 44122, for Relator.

William D. Mason, Esq., Cuyahoga County Prosecutor, Michael Kinney, Assistant County Prosecutor, Justice Center — 9^th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, for Respondent.

JOURNAL ENTRY AND OPINION

TIMOTHY E. McMONAGLE, JUDGE.

{¶ 1} On May 6, 2004, Michael Pruitt, through counsel, commenced this habeas action against respondents Judge Mary Kilbane and Chief Edward Lohn claiming that he has been held unlawfully on an illegal $10,000 cash only bond, and in violation of his right to a preliminary hearing. On May 14, 2004, this court, sua sponte, ordered respondent to show cause why this petition should not be dismissed for failure to comply with R.C. 2725.04(D). Thereafter, on May 17, 2004, petitioner demonstrated good cause and supplemented his petition with a copy of the municipal court's journal entry ordering Pruitt into custody and setting a $10,000 cash only bond. On May 21, 2004, respondents, through the Director of Law for the City of Cleveland, filed a brief in opposition to petition for writ of habeas corpus which this court sua sponte converted to a motion for summary judgment.

{¶ 2} According to the motion for summary judgment, the Cuyahoga County Grand Jury indicted Pruitt with a four-count indictment. The record further discloses that at arraignment, Pruitt's bond was set at $100,000, cash, surety or property. Accordingly, Pruitt's request for a writ of habeas corpus is rendered moot.

{¶ 3} Pruitt also failed to name the correct party respondent. Pruitt named the Judge and Chief of Police rather than the custodian. R.C. 2725.04(B). See also, State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 2001-Ohio-299, 742 N.E.2d 651 (affirming the sua sponte dismissal of a petition for habeas corpus, inter alia, because the petitioner did not name the proper respondents). Accordingly, the motion for summary judgment is granted. Petitioner to pay costs. 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).

Writ Dismissed.

Kilbane, P.J., concurs. Karpinski, J., concurs.