Turner v. Kelly

2015 Ohio 3414

• Court: Ohio Court of Appeals
• Decided: August 24, 2015
• Docket: 2015-L-050
• Status: Published

Opinion

[Cite as Turner v. Kelly, 2015-Ohio-3414.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

JOHN L. TURNER, JR., : PER CURIAM OPINION

Relator, : CASE NO. 2015-L-050 - vs - :

MAUREEN G. KELLY, CLERK OF : COURTS, LAKE COUNTY COURT OF COMMON PLEAS, :

Respondent. :

Original Action for Writ of Mandamus.

Judgment: Petition dismissed.

John L. Turner, Jr., pro se, c/o Lake County Jail, 104 East Erie Street, Painesville, OH 44077 (Relator).

Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent).

PER CURIAM.

{¶1} This matter is before the court pursuant to a petition for a writ of

mandamus filed by relator, John L. Turner, Jr., against respondent, Maureen G. Kelly,

Clerk of Courts, Lake County Court of Common Pleas. For the reasons that follow, the

petition is dismissed.

{¶2} In his petition for a writ of mandamus, relator correctly states that on

November 25, 2014, Ms. Kelly misfiled his previous petition for a writ of habeas corpus in his criminal case, which is pending in the Lake County Court of Common Pleas,

although he intended to file it in this court. After relator brought this matter to the

attention of Judge Eugene Lucci of the Lake County Court of Common Pleas, on

February 5, 2015, the Judge ordered Ms. Kelly to file the petition in this court, which she

did. Subsequently, this court dismissed that habeas petition in Turner v. Coulson, 11th

Dist. Lake No. 2015-L-014, 2015-Ohio-1224. Relator now seeks a writ of mandamus to

require Ms. Kelly to file his future filings in the proper court.

{¶3} Ms. Kelly has filed a motion to dismiss for failure to state a claim, arguing

that relator's petition is procedurally defective and also defective on its merits.

{¶4} A court may dismiss a petition for an extraordinary writ when it is

improperly captioned. Hill v. Kelly, 11th Dist. Trumbull No. 2011-T-0094, 2011-Ohio-

6341, ¶4, citing Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 227

(1962). “The failure to caption an original action properly constitutes sufficient grounds

for dismissing the petition.” Barry v. Galvin, 8th Dist. Cuyahoga No. 85990, 2005-Ohio-

2324, ¶2.

{¶5} R.C. 2731.04 states, in part, that an “[a]pplication for the writ of

mandamus must be by petition, in the name of the state on the relation of the person

applying, and verified by affidavit.”

{¶6} The caption of relator’s petition does not indicate that the request is made

in the name of the state on the relation of Turner. Instead, the petition was filed by

Turner in his individual capacity. For this reason alone, relator's petition for a writ of

mandamus must be dismissed. Hill, supra.

2 {¶7} Further, pursuant to Civ.R. 10(A), the caption of a complaint must “include

the names and addresses of all the parties.” Hill, supra, at ¶8. Here, relator has failed

to include his address in the caption. For this additional reason, the petition for a writ of

{¶8} In addition, relator’s affidavit identifying civil actions previously filed is

legally insufficient because it does not include a “brief description of the nature of the

civil action or appeal” and “[t]he name of each party to the civil action or appeal.” R.C.

2969.25(A)(1) and (3). “The requirements of R.C. 2969.25 are 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, ¶5.

{¶9} Further, relator has failed to comply with R.C. 2969.25(C). This section

requires an inmate, who files a civil action against a government entity and seeks a

waiver of the filing fee, to file an affidavit of indigency along with a certified statement of

the inmate's account balance for each of the previous six months. Relator has also

failed to comply with this requirement. Bechtel, supra. Failure to file a statement of the

inmate’s account balance in compliance with R.C. 2969.25(C) at the time of the initial

filing of the petition results in dismissal of the petition. Hazel v. Knab, 130 Ohio St.3d 22,

2011-Ohio-4608, ¶1. In Hazel, supra, the Ohio Supreme Court held that the error

cannot be corrected after the initial filing and is fatal to the petition.

{¶10} In any event, even if relator had complied with the foregoing procedural

requirements and if we were to assume the truth of the facts as alleged in his petition,

he has failed to state any facts that would entitle him to a writ of mandamus against Ms.

Kelly. This is because she filed his prior habeas petition in this court long before relator

3 filed the instant petition. It is well settled that mandamus does not lie to compel an act

that has already been performed. State ex rel. Jerninghan v. Cuyahoga Cty. Court of

Common Pleas, 74 Ohio St. 3d 278, 279 (1996).

{¶11} Further, because no writ of habeas corpus was allowed and Ms. Kelly has

not refused to issue a writ of habeas corpus, relator is not entitled to the monetary

award he seeks against her pursuant to R.C. 2725.21 and R.C. 2725.22.

{¶12} Accordingly, we dismiss relator’s petition for a writ of mandamus.

TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur.