In re Collado , 2020 Ohio 5337 ( 2020 )

[Cite as In re Collado, 2020-Ohio-5337.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE: ANTHONY J. COLLADO, :
Relator. :
No. 110048
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED
DATED: November 18, 2020
Writ of Mandamus
Order No. 542100
Appearances:
Anthony J. Collado, pro se.
ANITA LASTER MAYS, P.J.:
Relator, Anthony J. Collado, seeks a writ of mandamus directing
respondent, the Cuyahoga County Clerk of Courts to accept for filing a document
Collado refers to as a notice of appeal. Collado’s complaint is procedurally defective
for a number of reasons. Therefore, it is sua sponte dismissed.
I. Procedural History
On October 22, 2020, Collado filed a complaint for writ of
mandamus. There, he alleged that he had attempted to file a document he identified
as “his affidavit” with respondent’s office. Collado indicates that this document was
not accepted for filing. He again attempted to file the document, but again, it was
refused. Collado did not attach the documents he purported to file to his complaint,
but he did attach correspondence he received from respondent’s office indicating
that his filing was rejected because it lacked a case number and a correct heading
indicating what the filing purported to be. This form was dated September 21, 2020.
Collado also attached a letter sent to respondent dated September 28, 2020. This
letter was not in the form of a court filing and did not correct the items identified as
lacking by respondent. The letter, it appears, mistakenly requests respondent to
supply him with a separate case number for a motion he filed with the trial court in
an underlying criminal case.1 He also attached a journal entry to his complaint that
contains the case number for his Cuyahoga County Common Pleas Court criminal
case ─ Cuyahoga C.P. No. CR-17-616143-A. So, even though Collado claims not to
have this case number, it appears to be in his possession. The complaint further
asks this court to assist him in filing a notice of appeal.2
II. Law and Analysis
“Mandamus is a writ, issued in the name of the state to an inferior
tribunal, a corporation, board, or person, commanding the performance of an act
1 A review of the publicly available docket in this case does not indicate a ruling
denying Collado’s motion has been properly journalized and posted to the docket.
2 The Ohio Eighth District Court of Appeals maintains several resources on its
website at https://appeals.cuyahogacounty.us/, including a self-representation guide, and
forms for pro se litigants.
which the law specially enjoins as a duty resulting from an office, trust, or station.”
R.C. 2731.01. Certain procedural requirements must be met, however, in order to
obtain relief in mandamus. Where those procedural requirements are not met, sua
sponte dismissal may be appropriate. “Dismissal of a complaint for failure to state
a claim upon which relief can be granted is appropriate if, after all factual allegations
of the complaint are presumed true and all reasonable inferences are made in
relator’s favor, it appears beyond doubt that relator can prove no set of facts entitling
relator to the requested extraordinary relief.” State ex rel. Woods v. Oak Hill
Community Med. Ctr., 91 Ohio St.3d 459, 461, 746 N.E.2d 1108 (2001), citing State
ex rel. Lanham v. Ohio Adult Parole Auth., 80 Ohio St.3d 425, 426, 687 N.E.2d 283(1997). Sua sponte dismissal is appropriate where a complaint is frivolous or the
claimant obviously cannot prevail. State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58,
2005-Ohio-3674, 831 N.E.2d 430, ¶ 7.
The complaint in this case is procedurally defective and subject to sua
sponte dismissal for the following reasons.
Collado’s complaint indicates that he is an incarcerated individual
currently serving a prison sentence. When an incarcerated person seeks to initiate
a civil action or appeal against a governmental entity or employee, the individual
must comply with R.C. 2969.25. This statute requires such a person to file an
affidavit describing each civil action or appeal filed within the previous five years.
R.C. 2969.25(A). “Compliance with R.C. 2969.25(A) is mandatory, and failure to
comply will warrant dismissal.” State v. Henton, 146 Ohio St.3d 9, 2016-Ohio-1518,
50 N.E.3d 553, ¶ 3, citing State ex rel. McGrath v. McDonnell, 126 Ohio St.3d 511,
2010-Ohio-4726, 935 N.E.2d 830, ¶ 1. Collado’s status as a pro se litigant does not
excuse him of this obligation. Id., citing State ex rel. Leon v. Cuyahoga Cty. Court
of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402, ¶ 1.
Further, the failure to comply with R.C. 2969.25 cannot be cured at a later date.
State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4,
citing Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982,
¶ 9. Collado cannot prevail, so sua sponte dismissal is appropriate.
Collado is also required to comply with R.C. 2969.25(C). This statute
provides,
If an inmate who files a civil action or appeal against a government
entity or employee seeks a waiver of the prepayment of the full filing
fees assessed by the court in which the action or appeal is filed, the
inmate shall file with the complaint or notice of appeal an affidavit that
the inmate is seeking a waiver of the prepayment of the court’s full filing
fees and an affidavit of indigency. The affidavit of waiver and the
affidavit of indigency shall contain all of the following:
(1) A statement that sets forth the balance in the inmate account of the
inmate for each of the preceding six months, as certified by the
institutional cashier;
(2) A statement that sets forth all other cash and things of value owned
by the inmate at that time.
Collado did not attach affidavits that comply with this statutory
provision or pay the filing fee required to file his complaint. As such, he has failed
to comply with R.C. 2969.25(C). This, too, requires dismissal of the complaint.
State ex rel. Roden v. Ohio Dept. of Rehab. & Corr., 159 Ohio St.3d 314, 2020-Ohio-
408, 150 N.E.3d 905, ¶ 8.
Further, an action for writ of mandamus shall be brought in the name
of the state on behalf of the individual seeking relief. R.C. 2731.04. The failure to
do so is grounds for dismissal. Maloney v. Court of Common Pleas of Allen Cty.,
173 Ohio St. 226, 181 N.E.2d 270 (1962); Everett v. Parma Hts., 8th Dist. Cuyahoga
No. 99611, 2013-Ohio-5314. While the failure to comply with this statute is not
jurisdictional, Salemi v. Cleveland Metroparks, 145 Ohio St.3d 408, 2016-Ohio-
1192, 49 N.E.3d 1296, ¶ 15, a court may dismiss the complaint for failure to comply
with the provisions of R.C. 2731.04. Shoop v. State, 144 Ohio St.3d 374, 2015-Ohio-
2068, 43 N.E.3d 432, ¶ 10, citing Blankenship v. Blackwell, 103 Ohio St.3d 567,
2004-Ohio-5596, 817 N.E.2d 382, ¶ 34.
Finally, Civ.R. 10(A) requires that a complaint caption include the
names and addresses of all the parties to the action. Here, Collado did not include
the name of the respondent in the case caption or include addresses for any of the
parties. The failure to comply with Civ.R. 10(A) warrants dismissal. Nikooyi v.
Cuyahoga Cty. Prosecuting Dept., 8th Dist. Cuyahoga No. 109716, 2020-Ohio-
3730, ¶ 6, citing Kneuss v. Sloan, 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d
1242, ¶ 11.
Sua sponte, the complaint is dismissed. Costs to relator. It is further
ordered that the clerk of courts serve notice of this judgment upon all parties as
required by Civ.R. 58(B).
Complaint dismissed.
_______________________________
ANITA LASTER MAYS, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR