[Cite as State ex rel. Lisboa v. Fuerst, 2012-Ohio-370.]


                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 97856




                             STATE OF OHIO, EX REL.,
                                JOSE LISBOA, JR.
                                                                  RELATOR

                                                       vs.

                             JUDGE NANCY A. FUERST
                                                                  RESPONDENT




                                      JUDGMENT:
                                  COMPLAINT DISMISSED


                                   Writ of Prohibition and Mandamus
                                           Order No. 451671


        RELEASE DATE: February 1, 2012
FOR RELATOR

Jose C. Lisboa, Jr.
C/O Moyer Paralegal Services
245 Portage Trail, Unit #2
Cuyahoga Falls, OH 44223

ATTORNEY FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor
Justice Center, 9th Fl.
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, J.:

      {¶ 1} Jose Lisboa, Jr., has filed a compliant for an original action through

which he seeks a writ of prohibition and/or a writ of mandamus. Lisboa, through

his request for prohibition, is attempting to prevent any future action with regard to

the indictment that is currently pending within State v. Lisboa, Cuyahoga Cty.

Court of Common Pleas Case No. CR-522757. In addition, Lisboa requests a writ

of mandamus to dismiss the pending indictment based upon a claim of lack of

speedy trial. Sua sponte, we dismiss Lisboa’s complaint for an original action base

upon the failure to state any claim upon which relief can be granted.
      {¶ 2} Prohibition is not available to challenge a defective indictment.

Lisboa possesses adequate remedies in the ordinary course of law through a motion

to dismiss the indictment, and if convicted as based upon a defective indictment, by

appeal.    State ex rel. Bandarapalli v. Gallagher, 128 Ohio St.3d 314,

2011-Ohio-230, 943 N.E.2d 1020, State ex rel. Parker v. Cuyahoga Cty. Court of

Common Pleas, 61 Ohio St.2d 351, 402 N.E.2d 508 (1980). In addition, the claim

that Lisboa has been denied the right to a speedy trial is not cognizable in an

extraordinary action.    State ex rel. Barr v. Pittman, 127 Ohio St.3d 32,

2010-Ohio-4989, 936 N.E.2d 43; State ex rel. Jackim v. Ambrose, 118 Ohio St.3d

512, 2008-Ohio-4989, 936 N.E.2d 43. Thus, Lisboa has failed to establish any

claim that he is entitled to a writ of prohibition or a writ of mandamus. State ex

rel. Peeples v. Anderson, 73 Ohio St.3d559, 1995-Ohio-335, 653 N.E.2d 371.

      {¶ 3} Finally, we declare that Lisboa is 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. We find that this original action is not reasonably grounded in

fact and is not warranted by existing law. It must also be noted that Lisboa has

continually taxed the limited resources of this court through the filing of over 22
appeals and 7 original actions over the past 7 years.

      {¶ 4} Thus, we find Lisboa to be a vexatious litigator under Loc.App.R. 23.

Accordingly, Lisboa 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 actions 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.

      {¶ 5} Accordingly, we sua sponte dismiss Lisboa’s complaint for a writ of

prohibition and/or mandamus.       It is further ordered that Lisboa be declared a

vexatious litigator pursuant to Loc.App.R. 23. Costs to Lisboa. A copy of this

judgment shall be served upon all parties as required by Civ.R. 58(B).

      Complaint dismissed.




MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, P.J., AND
KATHLEEN ANN KEOUGH, J., CONCUR
