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State ex rel Nelms v. Franklin County Court of Common Pleas

December 9, 2008

STATE EX REL. TONY L. NELMS, SR., RELATOR,
v.
FRANKLIN COUNTY COURT OF COMMON PLEAS, RESPONDENT.



The opinion of the court was delivered by: Sadler, J.

(REGULAR CALENDAR)

DECISION

IN MANDAMUS

{¶1} Relator, Tony L. Nelms, Sr. ("relator"), an inmate of the Ross Correctional Institution ("RCI") at the time of filing this action, commenced this original action requesting this court to issue a writ of mandamus ordering respondent, Franklin County Court of Common Pleas, through an unnamed judge on the Franklin County Court of Common Pleas, to rule on a motion filed by relator on February 8, 2008, in which relator sought to terminate post-release control placed upon him. The Honorable John Bender ("Judge Bender"), a judge on the Franklin County Court of Common Pleas, has filed a motion to dismiss.

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth Appellate District, this matter was referred to a magistrate who considered the action on its merits and issued a decision, including findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate found that on April 15, 2008, the date of filing the instant action, relator was an inmate at RCI and was required to comply with the statutory mandates of R.C. 2969.25. The magistrate further determined that relator failed to file a statement of the balance in his inmate account for the preceding six months, as certified by the institutional cashier, as required by R.C. 2969.25(C). Finally, the magistrate determined that relator also failed to comply with the statutory requirement that he file an affidavit that listed the civil actions or appeals filed by him within the last five years. The magistrate recommended that the court grant Judge Bender's motion to dismiss based on relator's failure to satisfy the mandatory statutory requirements of R.C. 2969.25.

{¶3} No objections have been filed to the magistrate's decision.

{¶4} Finding no error of law in the magistrate's decision, we modify finding of fact No. 4 to reflect R.C. 2969.25(A) as the statutory section requiring the filing of an affidavit listing the civil actions or appeals filed by an applicant, and adopt, as modified, the magistrate's decision as our own, including the findings of fact and conclusions of law therein. In accordance with the magistrate's decision, the motion to dismiss is granted and this action is dismissed.

Motion to dismiss granted; action dismissed.

McGRATH, P.J., and TYACK, J., concur.

APPENDIX A

MAGISTRATE'S DECISION

IN MANDAMUS ON RESPONDENT'S MOTION TO DISMISS

{ΒΆ5} In this original action, relator, Tony L. Nelms, Sr., an inmate of the Ross Correctional Institution ("RCI") at the time of filing of this action, requests a writ of mandamus ordering respondent, the Honorable John Bender ("Judge Bender"), a Judge of the Franklin County Court of ...


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