State ex rel. Dehler v. Kelly , 123 Ohio St. 3d 297 ( 2009 )

[Cite as State ex rel. Dehler v. Kelly, 123 Ohio St. 3d 297, 2009-Ohio-5259.]
THE STATE EX REL. DEHLER, APPELLANT, v. KELLY, WARDEN, APPELLEE.
[Cite as State ex rel. Dehler v. Kelly, 123 Ohio St. 3d 297, 2009-Ohio-5259.]
Court of appeals’ judgment denying writ of mandamus affirmed — Mandamus
will not compel performance of an act that has already been performed —
Prisoner failed to prove a reasonable expectation that he would be subject
to the same action again.
(No. 2009-1121 — Submitted September 30, 2009 — Decided October 7, 2009.)
APPEAL from the Court of Appeals for Trumbull County, No. 2008-T-0062,
2009-Ohio-2534.
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Per Curiam.
{¶ 1} We affirm the judgment of the court of appeals denying a writ of
mandamus to compel a prison warden to provide properly fitting shoes to
appellant, Lambert Dehler. Mandamus will not compel the performance of an act
that has already been performed. State ex rel. Fontanella v. Kontos, 117 Ohio
St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220, ¶ 6.
{¶ 2} The court of appeals correctly restricted its holding to Dehler
himself because Dehler did not bring his mandamus case as a class action. See
State ex rel. Ogan v. Teater (1978), 54 Ohio St. 2d 235, 247, 8 O.O.3d 217, 375
N.E.2d 1233 (“Where, as in the instant cause, the party bringing suit does not
attempt to bring his cause of action within the provisions of Civ.R. 23, it is clear
that the court may properly limit its holding to that of the party alone”). With that
restriction, Dehler was unable to establish that his mandamus claim was not moot,
i.e., he failed to prove a reasonable expectation that he would be subject to the
same action again. See State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio St. 3d
165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 11.
SUPREME COURT OF OHIO
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
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Lambert Dehler, pro se.
Richard Cordray, Attorney General, and Ashley Dawn Rutherford,
Assistant Attorney General, for appellee.
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