State ex rel. Bryant v. Thompson , 2011 Ohio 5281 ( 2011 )

[Cite as State ex rel. Bryant v. Thompson, 2011-Ohio-5281.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97057
STATE OF OHIO, EX REL.,
WILLIAM BRYANT
RELATOR
vs.
WILLIAM W. THOMPSON, IV, ET AL.
RESPONDENTS
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus
Motion No. 447101
Order No. 448244
RELEASE DATE: October 12, 2011
FOR RELATOR
William Bryant, pro se
Inmate No. A584-123
Mansfield Correctional Institution
1150 North Main Street
P.O. Box 788
Mansfield, Ohio 44901-0788
ATTORNEYS FOR RESPONDENT
William W. Thompson, IV
Assistant Public Defender
BY: John Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
Ralph T. DeFranco, pro se
55 Public Square
Suite 1600
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} William Bryant has filed a complaint for a writ of mandamus. Bryant
seeks an order from this court, which requires William W. Thompson, IV, an
attorney employed by the Cuyahoga County Public Defenders Office, and Ralph T.
DeFranco, an attorney in private practice licensed to practice law within the state of
Ohio, to produce copies of “journal/judgment entries, discovery packets,
indictments, bill of particulars, and transcripts of all pretrial, preliminary and trial
hearings” with regard to the criminal actions of State v. Bryant, Cuyahoga County
Court of Common Pleas Case Nos. CR-491840 and CR-518876. For the following
reasons, we dismiss Bryant’s complaint for a writ of mandamus.
{¶ 2} Initially, we find that Bryant’s complaint for a writ of mandamus is
procedurally defective. Loc.App.R. 45(B)(1)(a) mandates that a complaint for an
extraordinary writ must be supported by a sworn affidavit that specifies the details
of Bryant’s claim. The failure of Bryant to comply with the supporting affidavit
requirement of Loc.App.R. 45(B)(1)(a) requires the dismissal of the complaint for a
writ of mandamus. State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas,
Cuyahoga App. No. 92826, 2009-Ohio-1612, affirmed, 123 Ohio St.3d 124,
2009-Ohio-4688, 914 N.E.2d 402; State ex rel. Smith v. McMonagle (Jul. 17,
1996), Cuyahoga App. No. 70899; State ex rel. Wilson v. Calabrese (Jan. 18, 1996),
Cuyahoga App. No. 70077.
{¶ 3} In addition, 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.
{¶ 4} The Supreme Court of Ohio, with regard to the mandatory affidavit
and institutional cashier statement requirements of R.C. 2969.25(C), has recently
established that:
{¶ 5} “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 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.)
{¶ 6} Herein, Bryant 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, Bryant is unable to cure the defective complaint for a writ
of mandamus vi-a-vis an amended complaint. See Hazel, supra.{¶ 7} Finally, mandamus will not lie to enforce a private right against a
private person. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141,
228 N.E.2d 632. A client seeking to obtain records from his lawyer concerns a
private right against a private person. Claytor v. Tricarichi, Cuyahoga App. No.
92745, 2009-Ohio-953. Mandamus may not be employed to obtain documents or
records from an attorney that is in private practice. State ex rel. Grahek v.
McCafferty, Cuyahoga App. No. 88614, 2006-Ohio-4741; State ex rel. Jones v.
Luskin, Cuyahoga App. No. 87185, 2006-Ohio-3686; Booker v. Christman,
Cuyahoga App. No. 84330, 2004-Ohio-6572; State ex rel. Tierney v. Jamieson,
Cuyahoga App. No. 80302, 2001-Ohio-4148; State ex rel. Rodgers v. Riley (Aug. 9,
2001), Cuyahoga App. No. 79977.
{¶ 8} Accordingly, we dismiss Bryant’s complaint for a writ of mandamus.
Costs to Bryant. 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.
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, A.J., and
PATRICIA A. BLACKMON, J., CONCUR