State ex rel. Elias v. Tibbals , 2012 Ohio 1210 ( 2012 )

[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