State ex rel. Elias v. Tibbals , 2011 Ohio 5678 ( 2011 )

[Cite as State ex rel. Elias v. Tibbals, 2011-Ohio-5678.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96832
STATE OF OHIO, EX REL.,
JOHN ELIAS
RELATOR
vs.
TERRY TIBBALS, WARDEN, ET AL.
RESPONDENTS
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus
Motion No. 447025
Order No. 448492
RELEASED DATE: October 28, 2011
-i-
2
FOR RELATOR
John Elias
Inmate No. 512-026
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, Ohio 44901-0788
FOR RESPONDENTS
Warden Terry Tibbals:
Peter L. Jamison
Assistant Attorney General
Criminal Justice Section
150 E. Gay Street, 16th Floor
Columbus, Ohio 43215
Bureau of Sentence Computation:
Michael DeWine
Ohio Attorney General
30 East Broad Street
State Office Tower, 17th floor
Columbus, Ohio 43215
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} John Elias has filed a complaint for a writ of mandamus. Elias seeks an
order from this court, which requires the Warden of the Mansfield Correctional
Institution, Terry Tibbals, and the Ohio Bureau of Sentence Computation to recalculate
3
the date of his release from prison.1 The complaint for mandamus is dismissed because it
is defective.
{¶ 2} R.C. 2969.25(C) mandates that an inmate, who files a civil action or appeal
against a government entity or employee and seeks a waiver of the prepayment of the
filing fees assessed by the court in which the action or appeal is filed, shall file with the
complaint or notice of appeal an affidavit of indigency that includes a statement setting
forth the balance in his inmate account for each of the preceding six months, as certified
by the institutional cashier.
{¶ 3} The Supreme Court of Ohio, with regard to the mandatory
affidavit/institutional cashier statement requirements of R.C. 2969.25(C), has recently
established that:
{¶ 4} “We affirm the judgment of the court of appeals dismissing the petition of
appellant, * * *, for a writ of habeas corpus to compel his release from prison. As the
court of appeals correctly held, [appellant’s] petition was defective because although he
filed an affidavit of indigency and sought waiver of prepayment of the court’s filing fees,
he failed to include in his affidavit of indigency a statement setting forth the balance in
his inmate account for each of the preceding six months, as certified by the institutional
cashier, in violation of R.C. 2969.25(C). ‘The requirements of R.C. 2969.25 are
1Pursuantto Civ.R. 21, Mark Tibbals is replaced with Terry Tibbals, the
present warden of the Mansfield Correctional Institution.
4
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, 788
N.E.2d 634, ¶5. [Appellant’s] subsequent filing of the statement did not cure the
defect. See R.C. 2969.25(C); see also Fuqua v. Williams, 100 Ohio St.3d 211,
2003-Ohio-5533, 797 N.E.2d 982, ¶9. * * *.” Hazel v. Knab, Ohio Supreme Court Slip
Opinion No. 2011-Ohio-4608, ¶1. (Emphasis added.)
{¶ 5} Herein, Elias has failed to comply with the mandatory requirements of R.C.
2969.25(C) because he has not provided this court with a sworn affidavit that sets forth
the balance in his inmate account for each of the preceding six months, as certified by the
institutional cashier of the Mansfield Correctional Institution. In addition, Elias is
unable to cure the defective complaint for a writ of mandamus vis-a-vis an amended
complaint. See Hazel, supra.{¶ 6} Accordingly, we dismiss the complaint for a writ of mandamus. Costs to
Elias. It is further ordered that the Clerk of the Eighth District Court of Appeals serve
notice of this judgment upon all parties as required by Civ.R. 58(B).
Complaint dismissed.
________________________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
KENNETH A. ROCCO, J., CONCUR