State ex rel. Byerly v. Frary

2011 Ohio 197

• Court: Ohio Court of Appeals
• Decided: January 19, 2011
• Docket: 10CA93
• Status: Published

Opinion

[Cite as State ex rel. Byerly v. Frary, 2011-Ohio-197.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO EX REL CHARLEY : Julie A. Edwards, P.J. R. BYERLY : W. Scott Gwin, J. : John W. Wise, J. Relator : : Case No. 10CA93 -vs- : : : OPINION LINDA H. FRARY

Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus Complaint

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: January 19, 2011

APPEARANCES:

For Relator For Respondent

CHARLEY R. BYERLY Inmate #551-820 Richland Correctional Institution 1001 Olivesburg Road P.O. Box 8107 Mansfield, Ohio 44901-8107 [Cite as State ex rel. Byerly v. Frary, 2011-Ohio-197.]

Edwards, P.J.

{¶1} Relator, Charley R. Byerly, has filed a Complaint requesting this Court

issue a writ of mandamus which orders Respondent, Linda Frary, Clerk of the Richland

County Court of Common Pleas, to stop collecting funds from Relator’s inmate account.

Further, Relator requests Respondent be ordered to provide Relator with an itemized

cost bill and subsequent reminders prior to collecting funds from Relator’s inmate

account.

{¶2} Respondent has filed a motion to dismiss to which Relator has not

responded.

{¶3} In his Complaint, Relator argues Respondent is required to provide an

itemized cost bill and issue three reminders prior to collecting funds from his inmate

account. Relator suggests this duty arises from R.C. 2335.19 and R.C. 2335.32.

Respondent counters these sections do not apply to Relator because he is a convicted

felon making R.C. 2949.14 and R.C. 2949.15 the applicable statutes governing inmate

accounts. Respondent further avers a writ would not issue because Relator has or had

an adequate remedy at law to challenge the seizure of funds from his inmate account.

{¶4} We find it unnecessary to determine which statute or statutes apply to the

seizure of Relator’s inmate account because we find Relator has or had an adequate

remedy at law to challenge any improper seizure of his inmate account by virtue of the

complaint procedure provided in Ohio Administrative Code 5120-9-31.

{¶5} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary Richland County App. Case No. 10CA93 3

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

{¶6} As we noted in Boylen v. Ohio Dept. of Rehab. And Corr. (2009), 182 Ohio

App.3d 265, 912 N.E.2d 624, Ohio Adm.Code 5120-9-31 sets forth the administrative

process that must be followed by an inmate in order to appeal the collection of costs.

{¶7} Because the Ohio Administrative Code provides an avenue to challenge

the improper collection of funds from an inmate account, we find this constitutes an

adequate remedy at law which bars the issuance of a writ of mandamus. For this

reason, Respondent’s motion to dismiss the complaint is granted, and the instant cause

of action is dismissed.

{¶8} CAUSE DISMISSED.

{¶9} COSTS TO RELATOR.

{¶10} IT IS SO ORDERED.

By: Edwards, P.J.

Gwin, J. and

Wise, J. concur

______________________________

JUDGES

JAE/as1029 [Cite as State ex rel. Byerly v. Frary, 2011-Ohio-197.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO EX REL CHARLY : R. BYERLY : : Relator : : : -vs- : JUDGMENT ENTRY : LINDA H. FRARY : : Respondent : CASE NO. 10CA93

For the reasons stated in our accompanying Memorandum-Opinion on file, the

complaint is dismissed. Costs assessed to Relator.

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