State ex rel. Elias v. Tibbals

2011 Ohio 5678

• Court: Ohio Court of Appeals
• Decided: October 28, 2011
• Docket: 96832
• Status: Published

Opinion

[Cite as State ex rel. Elias v. Tibbals, 2011-Ohio-5678.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96832

STATE OF OHIO, EX REL., JOHN ELIAS RELATOR

vs.

TERRY TIBBALS, WARDEN, ET AL. RESPONDENTS

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus Motion No. 447025 Order No. 448492

RELEASED DATE: October 28, 2011 -i- 2

FOR RELATOR

John Elias Inmate No. 512-026 Mansfield Correctional Inst. P. O. Box 788 Mansfield, Ohio 44901-0788

FOR RESPONDENTS Warden Terry Tibbals:

Peter L. Jamison Assistant Attorney General Criminal Justice Section 150 E. Gay Street, 16th Floor Columbus, Ohio 43215

Bureau of Sentence Computation:

Michael DeWine Ohio Attorney General 30 East Broad Street State Office Tower, 17th floor Columbus, Ohio 43215

PATRICIA ANN BLACKMON, P.J.:

{¶ 1} John Elias has filed a complaint for a writ of mandamus. Elias seeks an

order from this court, which requires the Warden of the Mansfield Correctional

Institution, Terry Tibbals, and the Ohio Bureau of Sentence Computation to recalculate 3

the date of his release from prison.1 The complaint for mandamus is dismissed because it

is defective.

{¶ 2} R.C. 2969.25(C) mandates that an inmate, who files a civil action or appeal

against a government entity or employee and seeks a waiver of the prepayment of the

filing fees assessed by the court in which the action or appeal is filed, shall file with the

complaint or notice of appeal an affidavit of indigency that includes a statement setting

forth the balance in his inmate account for each of the preceding six months, as certified

by the institutional cashier.

{¶ 3} The Supreme Court of Ohio, with regard to the mandatory

affidavit/institutional cashier statement requirements of R.C. 2969.25(C), has recently

established that:

{¶ 4} “We affirm the judgment of the court of appeals dismissing the petition of

appellant, * * *, for a writ of habeas corpus to compel his release from prison. As the

court of appeals correctly held, [appellant’s] petition was defective because although he

filed an affidavit of indigency and sought waiver of prepayment of the court’s filing fees,

he failed to include in his affidavit of indigency a statement setting forth the balance in

his inmate account for each of the preceding six months, as certified by the institutional

cashier, in violation of R.C. 2969.25(C). ‘The requirements of R.C. 2969.25 are

1Pursuantto Civ.R. 21, Mark Tibbals is replaced with Terry Tibbals, the present warden of the Mansfield Correctional Institution. 4

mandatory, and failure to comply with them subjects an inmate’s action to

dismissal.’ State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788

N.E.2d 634, ¶5. [Appellant’s] subsequent filing of the statement did not cure the

defect. See R.C. 2969.25(C); see also Fuqua v. Williams, 100 Ohio St.3d 211,

2003-Ohio-5533, 797 N.E.2d 982, ¶9. * * *.” Hazel v. Knab, Ohio Supreme Court Slip

Opinion No. 2011-Ohio-4608, ¶1. (Emphasis added.)

{¶ 5} Herein, Elias has failed to comply with the mandatory requirements of R.C.

2969.25(C) because he has not provided this court with a sworn affidavit that sets forth

the balance in his inmate account for each of the preceding six months, as certified by the

institutional cashier of the Mansfield Correctional Institution. In addition, Elias is

unable to cure the defective complaint for a writ of mandamus vis-a-vis an amended

complaint. See Hazel, supra.

{¶ 6} Accordingly, we dismiss the complaint for a writ of mandamus. Costs to

Elias. It is further ordered that the Clerk of the Eighth District Court of Appeals serve

notice of this judgment upon all parties as required by Civ.R. 58(B).

Complaint dismissed.

________________________________________________ PATRICIA ANN BLACKMON, PRESIDING JUDGE

JAMES J. SWEENEY, J., and KENNETH A. ROCCO, J., CONCUR