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State of Ohio, Ex Rel., John Elias v. Terry Tibbals

October 28, 2011

STATE OF OHIO, EX REL., JOHN ELIAS RELATOR
v.
TERRY TIBBALS, WARDEN, ET AL. RESPONDENTS



Writ of Mandamus Motion No. 447025 Order No. 448492

The opinion of the court was delivered by: Patricia Ann Blackmon, P.J.:

Cite as State ex rel. Elias v. Tibbals,

JOURNAL ENTRY AND OPINION

JUDGMENT:

COMPLAINT DISMISSED

{¶1} John Elias has filed a complaint for a writ of mandamus. Elias seeks an order from this court, which requires the Warden of the Mansfield Correctional Institution, Terry Tibbals, and the Ohio Bureau of Sentence Computation to recalculate the date of his release from prison.*fn1 The complaint for mandamus is dismissed because it is defective.

{¶2} R.C. 2969.25(C) mandates that an inmate, who files a civil action or appeal against a government entity or employee and seeks a waiver of the prepayment of the filing fees assessed by the court in which the action or appeal is filed, shall file with the complaint or notice of appeal an affidavit of indigency that includes a statement setting forth the balance in his inmate account for each of the preceding six months, as certified by the institutional cashier.

{¶3} The Supreme Court of Ohio, with regard to the mandatory affidavit/institutional cashier statement requirements of R.C. 2969.25(C), has recently established that:

{¶4} "We affirm the judgment of the court of appeals dismissing the petition of appellant, * * *, for a writ of habeas corpus to compel his release from prison. As the court of appeals correctly held, [appellant's] petition was defective because although he filed an affidavit of indigency and sought waiver of prepayment of the court's filing fees, he failed to include in his affidavit of indigency a statement setting forth the balance in his inmate account for each of the preceding six months, as certified by the institutional cashier, in violation of R.C. 2969.25(C). 'The requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate's action to dismissal.' State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634, ¶5. [Appellant's] subsequent filing of the statement did not cure the defect. See R.C. 2969.25(C); see also Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶9. * * *." Hazel v. Knab, Ohio Supreme Court Slip Opinion No. 2011-Ohio-4608, ¶1. (Emphasis added.)

{¶5} Herein, Elias has failed to comply with the mandatory requirements of R.C. 2969.25(C) because he has not provided this court with a sworn affidavit that sets forth the balance in his inmate account for each of the preceding six months, as certified by the institutional cashier of the Mansfield Correctional Institution. In addition, Elias is unable to cure the defective complaint for a writ of mandamus vis-a-vis an amended complaint. See Hazel, supra.

{¶6} Accordingly, we dismiss the complaint for a writ of mandamus. Costs to Elias. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 58(B).

Complaint dismissed.

PATRICIA ANN BLACKMON, PRESIDING JUDGE

JAMES J. SWEENEY, J., and KENNETH A. ...


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