671 N.E.2d 337 | Ohio Ct. App. | 1996
Relator avers that he is incarcerated at the Trumbull Correctional Institution. He also avers that, after an immigration judge found him deportable, the Board of Immigration Appeals reversed that decision and the board's decision has not been appealed. Relator further avers that he has an action pending which could result in his release.
Relator complains that respondents — Enforcement Counsel for the United States Immigration and Naturalization Service ("INS") and INS — have refused to notify the proper authorities of the state of Ohio to release a "holder" which was placed upon relator during the deportation proceedings. Relator requests that this court compel respondents to "drop the `holder'" against relator. *579
For the reasons stated below, we dismiss this action suasponte.
In McClung v. Silliman (1821), 19 U.S. (6 Wheat.) 598,
Likewise, this court lacks the authority to grant relief in mandamus against respondents in this action.
"[T]here is strong authority for the proposition that, by virtue of McClung v. Silliman doctrine, a state court cannot entertain a mandamus proceeding to direct the action of a federal officer or agency relative to a matter committed to the officer or agency * * *." 1 Moore, Federal Practice (1978) 245, Paragraph 0.6[5].
Clearly, relator's complaint fails to state a claim upon which relief can be granted.
"While sua sponte dismissal of a complaint without notice is generally inappropriate, it is proper where the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. See State ex rel. Edwards v. ToledoCity School Dist. Bd. of Edn. (1995),
In light of McClung, supra, relator in this case "obviously cannot prevail on the facts alleged in the complaint." Id.
Accordingly, relator's complaint is dismissed sua sponte. Relator to pay costs.
Writ dismissed.
DYKE, P.J., HARPER and PATTON, JJ., concur. *580