Thomas v. Coyne, Unpublished Decision (11-20-2003) , 2003 Ohio 6164 ( 2003 )

JOURNAL ENTRY AND OPINION {¶ 1} Relator requests that this court compel respondent judge to rule on the motion for finding of fact on verbal motion to withdraw guilty plea and motion of recusal filed in State v.Thomas, Cuyahoga County Court of Common Pleas Case No. CR-428257 on March 26 and 31, 2003, respectively.

{¶ 2} Respondent has filed a motion for summary judgment attached to which is a copy of a journal entry issued by respondent and received for filing by the clerk on June 23, 2003 in which respondent disposes of both motions. Relator has not opposed the motion. Respondent argues that he has discharged his duty. We agree.

{¶ 3} The complaint is also defective. Although R.C. 2731.04 requires that actions in mandamus must be on relation of the state in the name of the person bringing the action, the caption reads "Phillip V. Thomas, III vs. Judge William Coyne." Furthermore, R.C. 2969.25 requires that a prisoner file an affidavit describing each civil action or appeal of a civil action which the prisoner filed in the previous five years in any state or federal court and that a prisoner file a certified statement by the prison cashier setting forth the balance in the prisoner's private account for each of the preceding six months. Relator has failed to comply with both of these requirements. Compare Anderson v. Cleveland Common Pleas Court, Cuyahoga App. No. 83003, 2003-Ohio-4352. Similarly, relator has failed to comply with Loc.App.R. 45(B)(1)(a) which requires that complaints in original actions be supported by an affidavit from the plaintiff or relator specifying the details of the claim. Stateex rel. Hightower v. Russo, Cuyahoga App. No. 82321,2003-Ohio-3679. Each of these defects provides a basis for dismissal of the complaint in mandamus.

{¶ 4} Accordingly, respondent's motion for summary judgment is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).

Writ denied.

Timothy E. McMonagle, J., and Sean C. Gallagher, J., Concurs