State ex rel. Joseph v. Perry Cty. Court

2014 Ohio 4717

• Court: Ohio Court of Appeals
• Decided: October 23, 2014
• Docket: 14 CA 15
• Status: Published

Opinion

[Cite as State ex rel. Joseph v. Perry Cty. Court, 2014-Ohio-4717.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel. JUDGES: DAVID A. JOSEPH, SR. Hon. John W. Wise, P. J. Hon. Patricia A. Delaney, J. Relator Hon. Craig R. Baldwin, J.

-vs- Case No. 14 CA 15

PERRY COUNTY COURT OPINION Respondent

CHARACTER OF PROCEEDING: Petition for Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 23, 2014

APPEARANCES:

For Relator For Respondent

DAVID A. JOSEPH, SR., PRO SE No Appearance A626391 Grafton Correctional Institution 2500 South Avon Beldon Road Grafton, OHio 44044 Perry County, Case No. 14 CA 15 2

Wise, P. J.

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

requesting this Court cause the charges against him in the Perry County Court to be

dismissed and expunged. He argues he has not received a speedy trial, and the

charge should be dismissed for failure to prosecute.

{¶2}. 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.

{¶3}. 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; Perry County, Case No. 14 CA 15 3

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.

Ohio Rev. Code Ann. § 2969.25.

{¶4}. “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.

{¶5}. Because Relator did not file the required affidavit, we must dismiss the

petition. Perry County, Case No. 14 CA 15 4

{¶6}. Even had we addressed the merits of the complaint, a claim for denial of

speedy trial is not cognizable in an extraordinary-writ action. State ex rel. Barr v.

Pittman, 2010-Ohio-4989, 127 Ohio St. 3d 32, 33, 936 N.E.2d 43.

{¶7}. Based upon the foregoing, this cause is dismissed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

JWW/d 0929 Perry County, Case No. 14 CA 15 5