State ex rel. Elias v. Tibbals

2012 Ohio 1210

• Court: Ohio Court of Appeals
• Decided: March 19, 2012
• Docket: 97979
• Status: Published

Opinion

[Cite as State ex rel. Elias v. Tibbals, 2012-Ohio-1210.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97979

STATE OF OHIO EX REL., JOHN ELIAS RELATOR

vs.

TERRY TIBBALS, ET AL. RESPONDENTS

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus Motion No. 452854 Order No. 452879

RELEASE DATE: March 19, 2012 FOR RELATOR

John Elias, pro se Inmate No. 512-026 Mansfield Correctional Inst. P. O. Box 788 Mansfield, OH 44901

ATTORNEY FOR RESPONDENTS

Michael Dewine Ohio Attorney General 30 East Broad Street State Office Tower, 17th Fl. Columbus, OH 43215 EILEEN A. GALLAGHER, J.:

{¶1} Relator, John Elias, is incarcerated at Mansfield Correctional Institution

where respondent, Terry Tibbals, is warden. Elias complains that respondent, Bureau of

Sentence Computation, has failed to acknowledge 805 days jail-time credit authorized by

the court of common pleas. Elias requests that this court compel respondents to adjust

the date of his release from prison to reflect the 805 days jail-time credit.

{¶2} In State ex rel. Elias v. Tibbals, 8th Dist. No. 96832, 2011-Ohio-5678, Elias

filed (almost verbatim) the same complaint against the same respondents seeking the

same relief. This court dismissed that action due to Elias’s failure to comply with

mandatory procedural requirements. Likewise, we must dismiss this action.

{¶3} In Case No. 96832, this court dismissed Elias’s complaint because he failed

to support it with an affidavit and cashier statement reflecting his prisoner account as

required by R.C. 2969.25(C). In this case, Elias has attached to the complaint the

cashier statement but the affidavit of indigency is not notarized. An affidavit must be

notarized to comply with R.C. 2969.25. State ex rel. Jerninghan v. Russo, 8th Dist. No.

95573, 2010-Ohio-5377, at ¶ 5.

{¶4} Additionally, R.C. 2969.25(A) requires that an inmate commencing a civil

action support his complaint with “an affidavit that contains a description of each civil

action or appeal of a civil action that the inmate has filed in the previous five years in any

state or federal court.” Elias has not provided this information to this court in any form. {¶5} “The requirements of R.C. 2969.25 are mandatory, and failure to comply

with them subjects an inmate’s action to dismissal.” (Citations omitted.) State ex rel.

White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634, at ¶ 5. Elias’s

failure to comply with R.C. 2969.25(A) and (C) provide a sufficient basis for dismissing

this action.

{¶6} Additionally, Loc.App.R. 45(B)(1)(a) requires that a relator support the

complaint with an affidavit specifying the details of the claim. Elias has not filed an

affidavit specifying the details of the claim. Failure to file the affidavit required by

Loc.App.R. 45(B)(1)(a) is also grounds for dismissal. Mays v. Judges of the Cleveland

Mun. Court, 8th Dist. No. 97667, 2011-Ohio-6303 (dismissing an action in prohibition

sua sponte).

{¶7} We also take judicial notice of the fact that respondents filed a motion for

summary judgment in Case No. 96832 on August 19, 2011. Attached to the motion for

summary judgment is the affidavit of the Correction Record Management Supervisor of

the Bureau of Sentence Computation (“BOSC”). The affidavit explains the basis on

which the BOSC determined Elias’s release date after including his 805 days jail-time

credit. Although this court’s dispositive journal entry and opinion in Case No. 96832 was

not released until more than two months after the filing of the motion for summary

judgment, Elias did not file a response to that motion.

{¶8} Accordingly, we dismiss this action sua sponte.

The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). Relator to pay costs.

EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., AND MARY J. BOYLE, J., CONCUR