State Ex Rel. Collins v. Gallagher, Unpublished Decision (11-4-2005)

Ohio Court of Appeals

State Ex Rel. Collins v. Gallagher, Unpublished Decision (11-4-2005)

2005 Ohio 6009

CourtOhio Court of Appeals

DecidedNovember 4, 2005

DocketNo. 87010.

StatusUnpublished

This text of 2005 Ohio 6009 (State Ex Rel. Collins v. Gallagher, Unpublished Decision (11-4-2005)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Collins v. Gallagher, Unpublished Decision (11-4-2005), 2005 Ohio 6009 (Ohio Ct. App. 2005).

Pincite

Opinion

ORIGINAL ACTION JOURNAL ENTRY AND OPINION {¶ 1} Larry Collins seeks a writ of mandamus to order Judge Eileen T. Gallagher to rule on the following motions filed in the underlying action, State v. Collins, Cuyahoga County Court of Common Pleas Case No. CR-462434: (1) "motion objecting to continuances passing speedy trial deadline" filed on April 4, 2005; (2) "motion objecting to continuances in this matter" filed on April 22, 2005; (3) "motion for discovery of DNA evidence" filed on May 27, 2005; (4) "motion to dismiss counsel" filed on June 9, 2005; (5) "motion compelling discovery of grand jury testimony" filed on July 6, 2005; (6) "motion to dismiss for failure to provide statutory speedy trial" filed on July 15, 2005; and (7) "motion to suppress" filed on August 12, 2005. Judge Gallagher has filed a motion for summary judgment, which we grant for the following reasons.

{¶ 2} Initially, we find that Collins' complaint for a writ of mandamus is procedurally defective because he has failed to comply with the mandatory requirements of R.C. 2969.25(A). When filing a civil action against a government entity or employee, an inmate must also file an affidavit which contains a description of each civil action or appeal of a civil action that has been docketed in the previous five years in either state or federal court. State ex rel. Akbar-El v. Cuyahoga Cty.Court of Common Pleas, 94 Ohio St.3d 210, 2002-Ohio-475, 761 N.E.2d 624;State ex rel. Sherrills v. Franklin Cty. Clerk of Courts,92 Ohio St.3d 402, 2001-Ohio-211, 750 N.E.2d 94. In addition, Collins has failed to comply with Loc.App.R. 45(B)(1)(a), which mandates that the complaint in an original action be supported by an affidavit specifying the details of the claim. The failure of Collins to comply with the supporting affidavit requirement of Loc.App.R. 45(B)(1)(a) prevents consideration of the complaint for a writ of mandamus. State ex rel.Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899; State exrel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077.

{¶ 3} Finally, the complaint for a writ of mandamus is moot. On October 19, 2005, Judge Gallagher denied each of the motions filed by Collins in the underlying criminal action. This court will not command a vain act. State ex rel. Kirk v. Burcham, 82 Ohio St.3d 407, 1998-Ohio-224,696 N.E.2d 1042; State ex rel. Snider v. Stapelton (1992),65 Ohio St.3d 40, 600 N.E.2d 240.

{¶ 4} Accordingly, we grant Judge Gallagher's motion for summary judgment. Costs to Collins. Clerk of the Eighth District Court of Appeals is ordered to serve a copy of this judgment upon all parties as required by Civ.R. 58(B).

Writ denied.

Blackmon, A.J., concurs. Corrigan, J., concurs.

Free access — add to your briefcase to read the full text and ask questions with AI

ORIGINAL ACTION JOURNAL ENTRY AND OPINION {¶ 1} Larry Collins seeks a writ of mandamus to order Judge Eileen T. Gallagher to rule on the following motions filed in the underlying action, State v. Collins, Cuyahoga County Court of Common Pleas Case No. CR-462434: (1) "motion objecting to continuances passing speedy trial deadline" filed on April 4, 2005; (2) "motion objecting to continuances in this matter" filed on April 22, 2005; (3) "motion for discovery of DNA evidence" filed on May 27, 2005; (4) "motion to dismiss counsel" filed on June 9, 2005; (5) "motion compelling discovery of grand jury testimony" filed on July 6, 2005; (6) "motion to dismiss for failure to provide statutory speedy trial" filed on July 15, 2005; and (7) "motion to suppress" filed on August 12, 2005. Judge Gallagher has filed a motion for summary judgment, which we grant for the following reasons.

{¶ 2} Initially, we find that Collins' complaint for a writ of mandamus is procedurally defective because he has failed to comply with the mandatory requirements of R.C. 2969.25(A). When filing a civil action against a government entity or employee, an inmate must also file an affidavit which contains a description of each civil action or appeal of a civil action that has been docketed in the previous five years in either state or federal court. State ex rel. Akbar-El v. Cuyahoga Cty.Court of Common Pleas, 94 Ohio St.3d 210, 2002-Ohio-475, 761 N.E.2d 624;State ex rel. Sherrills v. Franklin Cty. Clerk of Courts,92 Ohio St.3d 402, 2001-Ohio-211, 750 N.E.2d 94. In addition, Collins has failed to comply with Loc.App.R. 45(B)(1)(a), which mandates that the complaint in an original action be supported by an affidavit specifying the details of the claim. The failure of Collins to comply with the supporting affidavit requirement of Loc.App.R. 45(B)(1)(a) prevents consideration of the complaint for a writ of mandamus. State ex rel.Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899; State exrel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077.

{¶ 3} Finally, the complaint for a writ of mandamus is moot. On October 19, 2005, Judge Gallagher denied each of the motions filed by Collins in the underlying criminal action. This court will not command a vain act. State ex rel. Kirk v. Burcham, 82 Ohio St.3d 407, 1998-Ohio-224,696 N.E.2d 1042; State ex rel. Snider v. Stapelton (1992),65 Ohio St.3d 40, 600 N.E.2d 240.

{¶ 4} Accordingly, we grant Judge Gallagher's motion for summary judgment. Costs to Collins. Clerk of the Eighth District Court of Appeals is ordered to serve a copy of this judgment upon all parties as required by Civ.R. 58(B).

Writ denied.

Blackmon, A.J., concurs. Corrigan, J., concurs.

Cite This Page — Counsel Stack

Bluebook (online)

2005 Ohio 6009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-collins-v-gallagher-unpublished-decision-11-4-2005-ohioctapp-2005.

Opinion

Related

Cite This Page — Counsel Stack