[Cite as State ex rel. Joseph v. Licking Cty. Common Pleas Court , 2014-Ohio-4953.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, ex rel., : JUDGES:
DAVID JOSEPH, SR. :
: Hon. William B. Hoffman, P.J.
Relator : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
LICKING COUNTY COMMON : Case No. 14-CA-40
PLEAS COURT :
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Petition for Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT: November 4, 2014
APPEARANCES:
For Respondent For Relator
ANTHONY W. STOCCO DAVID A. JOSEPH, SR., Pro Se
Licking County Assistant Prosecutor A626-391
20 S. Second Street Marion Correctional Institution
Newark, OH 43055 940 Marion-Williamsport road
P. O. Box 57
Marion, OH 43302-0057
Licking County, Case No. 14-CA-40 2
Farmer, P.J.
{¶1} Relator, David A. Joseph, Sr., has filed a Petition for Writ of Mandamus
requesting Respondent be ordered to conduct an oral hearing on a motion for judicial
release filed by Relator in the trial court on December 12, 2013.
{¶2} Respondent has filed a motion to dismiss based upon Relator’s failure to
comply with R.C. 2969.25 and based upon mootness.
{¶3} 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.
{¶4} 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;
Licking County, Case No. 14-CA-40 3
(4) 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.
{¶5} Ohio Rev. Code Ann. § 2969.25 (West)
{¶6} “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.
{¶7} Because Relator failed to file this affidavit of prior civil actions at the time
the petition was commenced, the petition must be dismissed. Further, as to the issue of
Licking County, Case No. 14-CA-40 4
mootness, the Supreme Court has held, “Neither procedendo nor mandamus will
compel the performance of a duty that has already been performed.” State ex rel. Kreps
v. Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.
{¶8} Relator argues Respondent was required to hold an oral hearing on the
motion, however, the judicial release statute provides, “[T]he court may deny the motion
without a hearing or schedule a hearing on the motion. . .” R.C. 2929.20(D).
{¶9} Respondent issued a ruling on Relator’s third motion for judicial release
which is the subject of this action on May 20, 2014. Respondent was authorized by
statute to do so without holding a hearing, therefore, the complaint is moot.
{¶10} Because Relator did not file the required prior civil actions affidavit and
because the complaint has become moot, the motion to dismiss is granted, and this
cause is dismissed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
SGF/as