Durst v. Conway

2020 Ohio 51

• Court: Ohio Court of Appeals
• Decided: January 9, 2020
• Docket: H-19-022
• Status: Published

Opinion

[Cite as Durst v. Conway, 2020-Ohio-51.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY

McClain L. Durst Court of Appeals No. H-19-022

Relator

v.

James W. Conway DECISION AND JUDGMENT

Respondent Decided: January 9, 2020

*****

McClain L. Durst, pro se.

PIETRYKOWSKI, J.

{¶ 1} This matter is before the court on the petition of McClain L. Durst, a pro se

inmate, for a writ of mandamus ordering respondent, Hon. James W. Conway, to rule on

relator’s “Motion to Compel” and “Motion for Extension of Time.” Upon review, we

find that relator’s petition must be dismissed as fatally defective because it fails to

comply with the requirements of R.C. 2969.25(C). {¶ 2} R.C. 2969.25(C)(1) and (2) require an inmate to include “[a] statement that

sets forth the balance in the inmate account of the inmate for each of the preceding six

months, as certified by the institutional cashier,” and “[a] statement that sets forth all

other cash and things of value owned by the inmate at that time.” Here, while relator has

submitted an affidavit of indigence, he does not include either of the statements required

by R.C. 2969.25(C)(1) and (2).

{¶ 3} “Noncompliance with [R.C. 2969.25(C)] is fatal and provides a sufficient

basis for dismissing a petition.” Willis v. Turner, 150 Ohio St.3d 379, 2017-Ohio-6874,

81 N.E.3d 1252, ¶ 7. Therefore, relator’s petition is facially defective.1

{¶ 4} Accordingly, upon due consideration, relator’s petition for a writ of

mandamus is not well-taken, and it is hereby dismissed. The costs of this action are

assessed to relator.

{¶ 5} The clerk is directed to serve upon the parties, within three days, a copy of

this decision in a manner prescribed by Civ.R. 5(B).

Writ denied.

1 Moreover, relator has not captioned his petition “in the name of the state on the relation of the person applying” as required by R.C. 2731.04. See Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 34-36 (an uncorrected failure to properly caption the petition for mandamus in accordance with R.C. 2731.04 is grounds for dismissal).

2. Durst v. Conway C.A. No. H-19-022

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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