State ex rel. Byerly v. Frary , 2011 Ohio 197 ( 2011 )

[Cite as State ex rel. Byerly v. Frary, 2011-Ohio-197.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO EX REL CHARLEY : Julie A. Edwards, P.J.
R. BYERLY : W. Scott Gwin, J.
: John W. Wise, J.
Relator :
: Case No. 10CA93
-vs- :
:
: OPINION
LINDA H. FRARY
Respondent
CHARACTER OF PROCEEDING: Writ of Mandamus Complaint
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 19, 2011
APPEARANCES:
For Relator For Respondent
CHARLEY R. BYERLY
Inmate #551-820
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901-8107
[Cite as State ex rel. Byerly v. Frary, 2011-Ohio-197.]
Edwards, P.J.
{¶1} Relator, Charley R. Byerly, has filed a Complaint requesting this Court
issue a writ of mandamus which orders Respondent, Linda Frary, Clerk of the Richland
County Court of Common Pleas, to stop collecting funds from Relator’s inmate account.
Further, Relator requests Respondent be ordered to provide Relator with an itemized
cost bill and subsequent reminders prior to collecting funds from Relator’s inmate
account.
{¶2} Respondent has filed a motion to dismiss to which Relator has not
responded.
{¶3} In his Complaint, Relator argues Respondent is required to provide an
itemized cost bill and issue three reminders prior to collecting funds from his inmate
account. Relator suggests this duty arises from R.C. 2335.19 and R.C. 2335.32.
Respondent counters these sections do not apply to Relator because he is a convicted
felon making R.C. 2949.14 and R.C. 2949.15 the applicable statutes governing inmate
accounts. Respondent further avers a writ would not issue because Relator has or had
an adequate remedy at law to challenge the seizure of funds from his inmate account.
{¶4} We find it unnecessary to determine which statute or statutes apply to the
seizure of Relator’s inmate account because we find Relator has or had an adequate
remedy at law to challenge any improper seizure of his inmate account by virtue of the
complaint procedure provided in Ohio Administrative Code 5120-9-31.
{¶5} 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
Richland County App. Case No. 10CA93 3
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶6} As we noted in Boylen v. Ohio Dept. of Rehab. And Corr. (2009), 182 Ohio
App.3d 265, 912 N.E.2d 624, Ohio Adm.Code 5120-9-31 sets forth the administrative
process that must be followed by an inmate in order to appeal the collection of costs.
{¶7} Because the Ohio Administrative Code provides an avenue to challenge
the improper collection of funds from an inmate account, we find this constitutes an
adequate remedy at law which bars the issuance of a writ of mandamus. For this
reason, Respondent’s motion to dismiss the complaint is granted, and the instant cause
of action is dismissed.
{¶8} CAUSE DISMISSED.
{¶9} COSTS TO RELATOR.
{¶10} IT IS SO ORDERED.
By: Edwards, P.J.
Gwin, J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/as1029
[Cite as State ex rel. Byerly v. Frary, 2011-Ohio-197.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO EX REL CHARLY :
R. BYERLY :
:
Relator :
:
:
-vs- : JUDGMENT ENTRY
:
LINDA H. FRARY :
:
Respondent : CASE NO. 10CA93
For the reasons stated in our accompanying Memorandum-Opinion on file, the
complaint is dismissed. Costs assessed to Relator.
_________________________________
_________________________________
_________________________________
JUDGES