State ex rel. Joseph v. Perry Cty. Court , 2014 Ohio 4717 ( 2014 )

[Cite as State ex rel. Joseph v. Perry Cty. Court, 2014-Ohio-4717.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, ex rel. JUDGES:
DAVID A. JOSEPH, SR. Hon. John W. Wise, P. J.
Hon. Patricia A. Delaney, J.
Relator Hon. Craig R. Baldwin, J.
-vs- Case No. 14 CA 15
PERRY COUNTY COURT
OPINION
Respondent
CHARACTER OF PROCEEDING: Petition for Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 23, 2014
APPEARANCES:
For Relator For Respondent
DAVID A. JOSEPH, SR., PRO SE No Appearance
A626391
Grafton Correctional Institution
2500 South Avon Beldon Road
Grafton, OHio 44044
Perry County, Case No. 14 CA 15 2
Wise, P. J.
{¶1}. Relator, David A. Joseph, Sr., has filed a Petition for Writ of Mandamus
requesting this Court cause the charges against him in the Perry County Court to be
dismissed and expunged. He argues he has not received a speedy trial, and the
charge should be dismissed for failure to prosecute.
{¶2}. 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
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶3}. Relator is an inmate at the Ohio Department of Corrections. He has not
filed an affidavit listing all prior civil actions as required by R.C. 2969.25 which
provides,
(A) At the time that an inmate commences a civil action or appeal
against a government entity or employee, the inmate shall file with the
court 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. The affidavit shall include all of the following for
each of those civil actions or appeals:
(1) A brief description of the nature of the civil action or appeal;
(2) The case name, case number, and the court in which the civil
action or appeal was brought;
(3) The name of each party to the civil action or appeal;
Perry County, Case No. 14 CA 15 3
The outcome of the civil action or appeal, including whether the court
dismissed the civil action or appeal as frivolous or malicious under state
or federal law or rule of court, whether the court made an award against
the inmate or the inmate's counsel of record for frivolous conduct under
section 2323.51 of the Revised Code, another statute, or a rule of court,
and, if the court so dismissed the action or appeal or made an award of
that nature, the date of the final order affirming the dismissal or award.
Ohio Rev. Code Ann. § 2969.25.
{¶4}. “The requirements of R.C. 2969.25 are mandatory and failure to comply
with them requires dismissal of an inmate's complaint. State ex rel. Washington v. Ohio
Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999), citing State ex rel.
Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998). As held
by the court of appeals, the affidavit required by R.C. 2969.25(A) must be filed at the
time the complaint is filed, and an inmate may not cure the defect by later filings.
Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶ 9 (an
inmate's “belated attempt to file the required affidavit does not excuse his
noncompliance. See R.C. 2969.25(A), which requires that the affidavit be filed ‘[a]t the
time that an inmate commences a civil action or appeal against a government entity or
employee.’ [emphasis sic] ).” State ex rel. Hall v. Mohr, 2014-Ohio-3735.
{¶5}. Because Relator did not file the required affidavit, we must dismiss the
petition.
Perry County, Case No. 14 CA 15 4
{¶6}. Even had we addressed the merits of the complaint, a claim for denial of
speedy trial is not cognizable in an extraordinary-writ action. State ex rel. Barr v.
Pittman, 2010-Ohio-4989, 127 Ohio St. 3d 32, 33, 936 N.E.2d 43.
{¶7}. Based upon the foregoing, this cause is dismissed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 0929
Perry County, Case No. 14 CA 15 5