COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71066 : : STATE OF OHIO, EX REL. : PETITION FOR WRIT OF ROSS AARON : MANDAMUS : Relator : : MOTION NO. 82084 -vs- : : OHIO STATE PAROLE AUTHORITY : JOURNAL ENTRY AND OPINION : Respondent : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 10, 1997 JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Relator: For Respondent: ROSS AARON, Pro Se BETTY D. MONTGOMERY, P. O. Box 5600 Attorney General Cleveland, Ohio 44101 BASIL J. MUSNUFF, Assistant Attorney General Corrections Litigation Section 615 W. Superior Ave., 12th Fl. Cleveland, Ohio 44113-1899 -2- PATRICIA A. BLACKMON, P.J.: The relator, Ross Aaron, commenced this mandamus action against the respondent, the Ohio State Parole Authority, to compel the Parole Authority to grant him an "on-site" hearing. The Parole Authority moved to dismiss. Mr. Aaron filed a brief in opposition and a "Motion for Judgment on the merits." Accordingly, this action is ripe for resolution. For the following reasons, this court sua sponte dismisses the action. The sole basis for the state's motion to dismiss is that Mr. Aaron has an adequate remedy at law by way of a civil suit pursuant to Title 42 United States Code Section 1983. However, even the authorities, upon which the state relies, indicate that such actions are not necessarily adequate remedies. In State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 637 N.E.2d 306, the Supreme Court of Ohio stated that the court of appeals erred in concluding that a 1983 action provided an adequate remedy at law for violations of state law. Thus, a 1983 action is an adequate remedy only to the extent Mr. Aaron bases his claim on federal law. Because Mr. Aaron relies at least in part on state law, this court declines to grant the state's motion to dismiss. Nonetheless, other sufficient grounds exist for the court to dismiss the writ, sua sponte. First, this action is dismissed for failure to comply with Loc. App. R. 8(B)(1), which requires that petitions in original -3- actions "must be supported by an affidavit from the plaintiff or relator specifying the details of the claim." State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077, unreported. The requisites for mandamus are well established: the relator must establish (1) that he has a clear legal right to the relief requested; (2) that the respondent has a clear legal duty to perform the requested relief; and (3) that there is no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Mandamus will not issue if the relator had an adequate remedy available. State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga County (1990), 56 Ohio St.3d 33, 564 N.E.2d 86. Moreover, "the issuance of a writ of mandamus rests, to a considerable extent at least, within the sound discretion of the court ***." State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 161, 228 N.E.2d 631. "A court exercising the extraordinary power of mandamus will take into consideration the facts and circumstances existing at the time it determines whether to issue a peremptory writ. Among the facts and circumstances which the court will consider are the applicant's rights, the interests of third persons, the importance or unimportance of the case, the applicant's conduct, the equity and justice of the relator's case, public policy and the public's interest ***" 11 Ohio St.2d at 162. See also, State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152, and State ex rel. Mettler v. Stratton (1941), 139 Ohio St. 86, 38 N.E.2d 393. Moreover, mandamus is not to be issued in doubtful cases or when -4- the law is not clear. State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; State ex rel. Goldsberry v. Weir (1978), 60 Ohio App.2d 149, 395 N.E.2d 901; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. As the Supreme Court of Ohio stated in State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 166, 364 N.E.2d 1: "Mandamus and prohibition are extraordinary remedies, to be issued with great caution and discretion and only when the way is clear." Furthermore, relators must plead and prove the existence of all necessary facts. State ex rel. Temke v. Outcalt (1977), 49 Ohio St.2d 189, 360 N.E.2d 701; State ex rel. Tommie Jerninghan v. Judge Patricia Anne Gaughan (Sept. 26, 1994), Cuyahoga App. No. 67787, unreported; and Cf. State ex rel. Jackson v. McFaul (1995) 73 Ohio St.3d 185, 652 N.E.2d 746. In the present case Mr. Aaron has failed to plead and prove all necessary facts to establish that he is entitled to relief. Ohio Administrative Code Section 5120:1-1-18(G) provides that "[u]nless a continuance is granted by the unit supervisor or the hearing officer for good cause shown, the [on-site hearing] shall be held within ten working days after the releasee has been held in detention *** . No on-site hearing need be held: (a) When the releasee has plead guilty or been found guilty of any new offense under federal law or the law of any state. *** (c) When the releasee has been charged with a new criminal offense committed on release and has been bound over to the grand jury after a preliminary hearing, provided: (i) The -5- releasee has received notice that such hearing will serve as the on-site hearing; and (ii) A record or summary of the preliminary hearing is available; and (iii) Prior approval to use such bindover has been granted by the chief of the adult parole authority." Accordingly, there are several exceptions to an on-site hearing which Mr. Aaron has failed to discount. The possibility that any of these exceptions may have caused the continuance of the on-site hearing raises a doubt for this court that Mr. Aaron has a clear legal right to the requested relief. Because the case is doubtful, this court in the exercise of its discretion declines to issue the writ of mandamus to compel an on-site hearing. Accordingly, this mandamus case is dismissed. Relator to pay costs. DAVID T. MATIA, J., CONCURS _____________________________________ .