Mallory v. Gallagher

2024 Ohio 1684

• Court: Ohio Court of Appeals
• Decided: April 26, 2024
• Docket: 113761
• Status: Published

Opinion

[Cite as Mallory v. Gallagher, 2024-Ohio-1684.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO EX REL. : VICTOR L. MALLORY, : Relator, : No. 113761 v. : JUDGE KELLY ANN GALLAGHER, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED DATED: April 26, 2024

Writ of Mandamus Motion No. 573530 Order No. 573749

Appearances:

Victor L. Mallory, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.

MICHAEL JOHN RYAN, J.:

Relator Victor L. Mallory (“Mallory”) has filed a complaint for a writ

of mandamus. Mallory seeks an order from this court that requires respondent Judge Kelly Ann Gallagher (“Judge Gallagher”) to grant his motion for discovery, to

provide exculpatory evidence, and order a copy of the trial transcript in State v.

Mallory, Cuyahoga C.P. No. CR-21-666510-A. Judge Gallagher has filed a motion

for summary judgment that is granted.

We find that Mallory’s complaint for mandamus is procedurally

defective for failure to comply with R.C. 2969.25(A) and (C). Specifically, Mallory

failed to file an affidavit of prior civil actions as required by R.C. 2969.25(A). In

addition, Mallory has failed to provide a certified copy of the institutional cashier’s

statement, where he is incarcerated, setting forth the balance in this inmate account

as required by R.C. 2969.25(C).

The requirements of R.C. 2969.25 are mandatory, and the failure to

provide this court with an affidavit of prior civil actions and a certified institutional

cashier’s statement requires dismissal of Mallory’s complaint for mandamus. State

ex rel. Townsend v. Gaul, Slip Opinion No. 2024-Ohio-1128, ¶ 7, citing State ex rel.

Ellis v. Wainwright, 157 Ohio St.3d 279, 2019-Ohio-2853, 135 N.E.3d 761, ¶ 6;

Westerfield v. Bracy, 171 Ohio St.3d 803, 2023-Ohio-499, 220 N.E.3d 799. In

Townsend, the Supreme Court of Ohio recently reiterated that the requirements of

R.C. 2969.25 are mandatory. Id. at ¶ 8. The failure to strictly comply with this

statute means that relator cannot prevail, and this action is subject to dismissal. See

also Robinson v. McConahay, 171 Ohio St.3d 235, 2023-Ohio-498, 216 N.E.3d 660;

State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 719 N.E.2d

544 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 696 N.E.2d 594 (1998). Finally, the failure to comply with R.C. 2969.25(A) or (C) cannot be

cured by later filings. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797

N.E.2d 982.

Accordingly, we grant Judge Gallagher’s motion for summary

judgment. Costs to Mallory. The court directs the clerk of courts to serve all parties

with notice of this judgment and the date of entry upon the journal as required by

Civ.R. 58(B).

Writ denied.

________________________ MICHAEL JOHN RYAN, JUDGE

MICHELLE J. SHEEHAN, P.J., and ANITA LASTER MAYS, J., CONCUR