[Cite as Freed v. Bova, 2013-Ohio-4378.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99908
CURTIS FREED #140799
RELATOR vs.
SHERIFF BOVA
RESPONDENT
JUDGMENT: WRIT DISMISSED
Writ of Mandamus Motion Nos. 465844, 465869, 466153, 466154, and 467075 Order No. 467826
RELEASE DATE: September 30, 2013 FOR RELATOR
Curtis Freed, Pro se #140799 Cuyahoga County Jail P.O. Box 5600 Cleveland, Ohio 44101
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty Cuyahoga County Prosecutor
BY: James E. Moss Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:
{¶1} On May 20, 2013, the relator, Curtis Freed, commenced this mandamus
action against the respondent, Cuyahoga County Sheriff Frank Bova, to compel the
sheriff to provide access to the courts by providing notary services, writing materials, and
access to legal materials. Freed stated that he wishes to contest the conditions of his
confinement by commencing an action under 42 U.S.C. 1983. On June 14, 2013, the
sheriff filed a motion to dismiss based on pleading deficiencies and adequate remedy at
law.
{¶2} On June 26, 2013, Freed moved to amend his petition for mandamus by
submitting an “affidavit” specifying the details of the claim and an “affidavit” of
indigency. On the same day, he also filed a motion to grant petition for writ of
mandamus that is actually a brief in opposition to the respondent’s motion to dismiss.
On August 1, 2013, Freed filed a motion to amend caption on the writ of mandamus that
attached an “affidavit” of prior civil actions. For the following reasons, this court grants
the sheriff’s motion to dismiss, dismisses the application for a writ of mandamus, and
denies Freed’s various motions.
{¶3} Freed’s petition suffers from multiple, fatal procedural defects. First, the
petition is defective because it is improperly captioned. Freed styled this petition as
“Curtis Freed #140799 v. Sheriff Bova.” R.C. 2731.04 requires that an application for a
writ of mandamus “must be by petition, in the name of the state on the relation of the
person applying.” This failure to properly caption a mandamus action is sufficient grounds for dismissing the petition. Maloney v. Court of Common Pleas of Allen Cty.,
173 Ohio St. 226, 181 N.E.2d 270 (1962).
{¶4} Loc.App.R. 45(B)(1)(a) requires all complaints for original actions to be
supported by an affidavit specifying the details of the claim. R.C. 2969.25 requires an
affidavit that describes each civil action or appeal filed by the petitioner within the
previous five years in any state or federal court. R.C. 2969.25(C) requires that an inmate
file a certified statement from the prison cashier setting forth the balance in the
petitioner’s private account for each of the preceding six months. The failure to comply
with these pleading requirements is cause to dismiss the writ action, deny indigency
status, and assess costs against the relator. State ex rel. Leon v. Cuyahoga Cty. Court of
Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402; State ex rel.
Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594; State ex
rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; and State ex
rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176,
2000-Ohio-285, 724 N.E.2d 420.
{¶5} Freed, through his attachments and his motions to amend, endeavors to
supply these affidavits. 1 However, none of them are notarized. Moreover, for
purposes of a motion to dismiss, the court will accept as true his allegation that the sheriff
1 In his prior lawsuit “affidavit,” Freed states that he has not filed a civil action against a government entity or employee within the last five years. However, this court notes from its own docket that a Curtis Freed has filed two writ actions within five years of May 20, 2013: State ex rel. Curtis Freed v. Judge Timothy McMonagle, 8th Dist. Cuyahoga No. 91758, filed July 7, 2008, and Curtis Freed v. Judge Timothy McMonagle, 8th Dist. Cuyahoga No. 94643, filed February 8, 2010. does not provide notary services.
{¶6} Nevertheless, the failure to submit properly notarized affidavits renders those
efforts futile. In Chari v. Vore, 91 Ohio St.3d 323, 2001-Ohio-49, 744 N.E.2d 763, the
Supreme Court of Ohio ruled:
“Verification” means a “formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statement in the document.” Garner, Black’s Law Dictionary (7 Ed.1999) 1556 * * *.
The Supreme Court of Ohio then reversed the court of appeals’ granting of the writ and
awarding of relief and held that the cause should have been summarily dismissed
because the petition was procedurally defective. Freed’s “affidavits” in which he
stated per 28 U.S.C. 1746 that his statements were made under penalty of perjury are
ineffective and not proper affidavits under Ohio law. Griffin v. McFaul, 116 Ohio St.3d
30, 2007-Ohio-5506, 876 N.E.2d 527. These deficiencies alone provide sufficient
reason to dismiss the application.
{¶7} The requisites for mandamus are well established: (1) the relator must have a
clear legal right to the requested relief, (2) the respondent must have a clear legal duty to
perform the requested relief, and (3) there must be no adequate remedy at law. State ex
rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). Moreover, mandamus
is an extraordinary remedy that is to be exercised with caution and only when the right is
clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d
165, 364 N.E.2d 1 (1977). Furthermore, for purposes of mandamus, “the creation of the
legal duty that a relator seeks to enforce is the distinct function of the legislative branch of government, and courts are not authorized to create legal duty.” State ex rel.
Bardwell v. Cleveland, 126 Ohio St.3d 195, 2009-Ohio-3267, 931 N.E.2d 1080, ¶ 5.
Finally, a relator must establish that his right to a writ of mandamus is plain, clear, and
convincing before a court is justified in using the strong arm of the law by way of
granting the writ. State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141,
161, 228 N.E.2d 31 (1967).
{¶8} In the present case, Freed has cited no legal authority for his proposition that
the sheriff of a city jail must provide notary services, writing materials, and access to
legal materials. Thus, Freed has not sustained his burden to show entitlement to
mandamus.
{¶9} In State ex rel. Carter v.
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[Cite as Freed v. Bova, 2013-Ohio-4378.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99908
CURTIS FREED #140799
RELATOR vs.
SHERIFF BOVA
RESPONDENT
JUDGMENT: WRIT DISMISSED
Writ of Mandamus Motion Nos. 465844, 465869, 466153, 466154, and 467075 Order No. 467826
RELEASE DATE: September 30, 2013 FOR RELATOR
Curtis Freed, Pro se #140799 Cuyahoga County Jail P.O. Box 5600 Cleveland, Ohio 44101
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty Cuyahoga County Prosecutor
BY: James E. Moss Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:
{¶1} On May 20, 2013, the relator, Curtis Freed, commenced this mandamus
action against the respondent, Cuyahoga County Sheriff Frank Bova, to compel the
sheriff to provide access to the courts by providing notary services, writing materials, and
access to legal materials. Freed stated that he wishes to contest the conditions of his
confinement by commencing an action under 42 U.S.C. 1983. On June 14, 2013, the
sheriff filed a motion to dismiss based on pleading deficiencies and adequate remedy at
law.
{¶2} On June 26, 2013, Freed moved to amend his petition for mandamus by
submitting an “affidavit” specifying the details of the claim and an “affidavit” of
indigency. On the same day, he also filed a motion to grant petition for writ of
mandamus that is actually a brief in opposition to the respondent’s motion to dismiss.
On August 1, 2013, Freed filed a motion to amend caption on the writ of mandamus that
attached an “affidavit” of prior civil actions. For the following reasons, this court grants
the sheriff’s motion to dismiss, dismisses the application for a writ of mandamus, and
denies Freed’s various motions.
{¶3} Freed’s petition suffers from multiple, fatal procedural defects. First, the
petition is defective because it is improperly captioned. Freed styled this petition as
“Curtis Freed #140799 v. Sheriff Bova.” R.C. 2731.04 requires that an application for a
writ of mandamus “must be by petition, in the name of the state on the relation of the
person applying.” This failure to properly caption a mandamus action is sufficient grounds for dismissing the petition. Maloney v. Court of Common Pleas of Allen Cty.,
173 Ohio St. 226, 181 N.E.2d 270 (1962).
{¶4} Loc.App.R. 45(B)(1)(a) requires all complaints for original actions to be
supported by an affidavit specifying the details of the claim. R.C. 2969.25 requires an
affidavit that describes each civil action or appeal filed by the petitioner within the
previous five years in any state or federal court. R.C. 2969.25(C) requires that an inmate
file a certified statement from the prison cashier setting forth the balance in the
petitioner’s private account for each of the preceding six months. The failure to comply
with these pleading requirements is cause to dismiss the writ action, deny indigency
status, and assess costs against the relator. State ex rel. Leon v. Cuyahoga Cty. Court of
Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402; State ex rel.
Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594; State ex
rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; and State ex
rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176,
2000-Ohio-285, 724 N.E.2d 420.
{¶5} Freed, through his attachments and his motions to amend, endeavors to
supply these affidavits. 1 However, none of them are notarized. Moreover, for
purposes of a motion to dismiss, the court will accept as true his allegation that the sheriff
1 In his prior lawsuit “affidavit,” Freed states that he has not filed a civil action against a government entity or employee within the last five years. However, this court notes from its own docket that a Curtis Freed has filed two writ actions within five years of May 20, 2013: State ex rel. Curtis Freed v. Judge Timothy McMonagle, 8th Dist. Cuyahoga No. 91758, filed July 7, 2008, and Curtis Freed v. Judge Timothy McMonagle, 8th Dist. Cuyahoga No. 94643, filed February 8, 2010. does not provide notary services.
{¶6} Nevertheless, the failure to submit properly notarized affidavits renders those
efforts futile. In Chari v. Vore, 91 Ohio St.3d 323, 2001-Ohio-49, 744 N.E.2d 763, the
Supreme Court of Ohio ruled:
“Verification” means a “formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statement in the document.” Garner, Black’s Law Dictionary (7 Ed.1999) 1556 * * *.
The Supreme Court of Ohio then reversed the court of appeals’ granting of the writ and
awarding of relief and held that the cause should have been summarily dismissed
because the petition was procedurally defective. Freed’s “affidavits” in which he
stated per 28 U.S.C. 1746 that his statements were made under penalty of perjury are
ineffective and not proper affidavits under Ohio law. Griffin v. McFaul, 116 Ohio St.3d
30, 2007-Ohio-5506, 876 N.E.2d 527. These deficiencies alone provide sufficient
reason to dismiss the application.
{¶7} The requisites for mandamus are well established: (1) the relator must have a
clear legal right to the requested relief, (2) the respondent must have a clear legal duty to
perform the requested relief, and (3) there must be no adequate remedy at law. State ex
rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). Moreover, mandamus
is an extraordinary remedy that is to be exercised with caution and only when the right is
clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d
165, 364 N.E.2d 1 (1977). Furthermore, for purposes of mandamus, “the creation of the
legal duty that a relator seeks to enforce is the distinct function of the legislative branch of government, and courts are not authorized to create legal duty.” State ex rel.
Bardwell v. Cleveland, 126 Ohio St.3d 195, 2009-Ohio-3267, 931 N.E.2d 1080, ¶ 5.
Finally, a relator must establish that his right to a writ of mandamus is plain, clear, and
convincing before a court is justified in using the strong arm of the law by way of
granting the writ. State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141,
161, 228 N.E.2d 31 (1967).
{¶8} In the present case, Freed has cited no legal authority for his proposition that
the sheriff of a city jail must provide notary services, writing materials, and access to
legal materials. Thus, Freed has not sustained his burden to show entitlement to
mandamus.
{¶9} In State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 637 N.E.2d 306 (1994),
the relator commenced mandamus actions to compel the warden to provide, inter alia,
access to adequate prison libraries, legal supplies, and notary services. The Supreme
Court of Ohio ruled a 42 U.S.C. 1983 action provided an adequate remedy at law
precluding relief in mandamus. The court also ruled that the relator’s vague and
conclusory allegations were insufficient to sustain his claim. Douglas v. Money, 85
Ohio St.3d 348, 1999-Ohio-381, 708 N.E.2d 697. Thus, mandamus will not issue
because Freed has an adequate remedy at law.
{¶10} This court denies Freed’s motions to amend to submit complying affidavits
because his affidavits are not notarized and, thus, ineffective.
{¶11} In conclusion, this court grants the respondent’s motion to dismiss and
dismisses the application for a writ of mandamus. Relator to pay costs. This court directs the clerk of court to serve all parties notice of this judgment and its date of entry
upon the journal as required by Civ.R. 58(B).
{¶12} Writ dismissed.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and TIM McCORMACK, J., CONCUR