Summary
dismissing mandamus complaint when inmate failed to plead sufficient facts to show that dismissal of state charges removed all support for the parole revocation under which he was confined
Summary of this case from State ex rel. Sands v. Court of Common Pleas JudgeOpinion
No. 89-521
Submitted July 11, 1989 —
Decided September 20, 1989.
Mandamus — Pleading requirements — Unsupported conclusions of a complaint are not considered admitted and are not sufficient to withstand a motion to dismiss.
APPEAL from the Court of Appeals for Franklin County, No. 88AP-881.
Appellant, William J. Hickman, filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County. In his complaint, appellant alleged that the respondent Ohio Adult Parole Authority, of which respondent Raymond E. Capots is Chairman, unlawfully revoked his parole based on criminal charges of public indecency and assault that were dismissed by the Franklin County Municipal Court. He contended that "[d]ismissal of the state charges removed all factual support from revocation, and the respondent violated due process of law, in finding relator guilty of parole violation, based upon the charges that were dismissed in court." However, appellant pleaded no facts to show how or why dismissal of the charges removed all factual support for the parole revocation, and the case law he cited did not support his allegation. For this reason, the court of appeals, adopting the recommendation of its referee, granted respondents' motion to dismiss for failure to state a claim on which relief can be granted.
The cause is before this court upon an appeal as of right.
William J. Hickman, pro se. Anthony J. Celebrezze, Jr., attorney general, and Donald G. Keyser, for appellees.
Unsupported conclusions of a complaint are not considered admitted, Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 198, 59 O.O. 2d 196, 197, 283 N.E.2d 175, 176, and are not sufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 193, 532 N.E.2d 753, 756. The cases cited by appellant, Mack v. McCune (C.A. 10, 1977), 551 F.2d 251, and Robinson v. Benson (C.A. 10, 1978), 570 F.2d 920, both indicate that the conclusion appellant pleaded below is an exception to the general rule that parole may be revoked even though criminal charges based on the same facts are dismissed, the defendant is acquitted, or a conviction is overturned. See Taylor v. United States Parole Comm. (C.A. 6, 1984), 734 F.2d 1152, 1155. This suggests the need to plead specific facts showing how or why the parolee comes within the exception. Id. at 1156; see, also, Mitchell, supra. Appellant has not done so here.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.