State ex rel. Joseph v. Licking Cty. Common Pleas Court

2014 Ohio 4953

• Court: Ohio Court of Appeals
• Decided: November 4, 2014
• Docket: 14-CA-40
• Status: Published

Opinion

[Cite as State ex rel. Joseph v. Licking Cty. Common Pleas Court , 2014-Ohio-4953.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel., : JUDGES: DAVID JOSEPH, SR. : : Hon. William B. Hoffman, P.J. Relator : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : LICKING COUNTY COMMON : Case No. 14-CA-40 PLEAS COURT : : Respondent : OPINION

CHARACTER OF PROCEEDING: Petition for Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT: November 4, 2014

APPEARANCES:

For Respondent For Relator

ANTHONY W. STOCCO DAVID A. JOSEPH, SR., Pro Se Licking County Assistant Prosecutor A626-391 20 S. Second Street Marion Correctional Institution Newark, OH 43055 940 Marion-Williamsport road P. O. Box 57 Marion, OH 43302-0057 Licking County, Case No. 14-CA-40 2

Farmer, P.J.

{¶1} Relator, David A. Joseph, Sr., has filed a Petition for Writ of Mandamus

requesting Respondent be ordered to conduct an oral hearing on a motion for judicial

release filed by Relator in the trial court on December 12, 2013.

{¶2} Respondent has filed a motion to dismiss based upon Relator’s failure to

comply with R.C. 2969.25 and based upon mootness.

{¶3} 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

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

451 N.E.2d 225.

{¶4} Relator is an inmate at the Ohio Department of Corrections. He has not

filed an affidavit listing all prior civil actions as required by R.C. 2969.25 which provides,

(A) At the time that an inmate commences a civil action or appeal

against a government entity or employee, the inmate shall file with the

court 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. The affidavit shall include all of the following for

each of those civil actions or appeals:

(1) A brief description of the nature of the civil action or appeal;

(2) The case name, case number, and the court in which the civil

action or appeal was brought;

(3) The name of each party to the civil action or appeal; Licking County, Case No. 14-CA-40 3

(4) The outcome of the civil action or appeal, including whether the

court dismissed the civil action or appeal as frivolous or malicious under

state or federal law or rule of court, whether the court made an award

against the inmate or the inmate's counsel of record for frivolous conduct

under section 2323.51 of the Revised Code, another statute, or a rule of

court, and, if the court so dismissed the action or appeal or made an

award of that nature, the date of the final order affirming the dismissal or

award.

{¶5} Ohio Rev. Code Ann. § 2969.25 (West)

{¶6} “The requirements of R.C. 2969.25 are mandatory and failure to comply

with them requires dismissal of an inmate's complaint. State ex rel. Washington v. Ohio

Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999), citing State ex rel.

Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998). As held by

the court of appeals, the affidavit required by R.C. 2969.25(A) must be filed at the time

the complaint is filed, and an inmate may not cure the defect by later filings. Fuqua v.

Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶ 9 (an inmate's

“belated attempt to file the required affidavit does not excuse his noncompliance. See

R.C. 2969.25(A), which requires that the affidavit be filed ‘[a]t the time that an inmate

commences a civil action or appeal against a government entity or employee.’ ”

[emphasis sic] ).” State ex rel. Hall v. Mohr, 2014-Ohio-3735.

{¶7} Because Relator failed to file this affidavit of prior civil actions at the time

the petition was commenced, the petition must be dismissed. Further, as to the issue of Licking County, Case No. 14-CA-40 4

mootness, the Supreme Court has held, “Neither procedendo nor mandamus will

compel the performance of a duty that has already been performed.” State ex rel. Kreps

v. Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.

{¶8} Relator argues Respondent was required to hold an oral hearing on the

motion, however, the judicial release statute provides, “[T]he court may deny the motion

without a hearing or schedule a hearing on the motion. . .” R.C. 2929.20(D).

{¶9} Respondent issued a ruling on Relator’s third motion for judicial release

which is the subject of this action on May 20, 2014. Respondent was authorized by

statute to do so without holding a hearing, therefore, the complaint is moot.

{¶10} Because Relator did not file the required prior civil actions affidavit and

because the complaint has become moot, the motion to dismiss is granted, and this

cause is dismissed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

SGF/as