Bandy v. Villanueva , 2011 Ohio 4831 ( 2011 )


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  • [Cite as Bandy v. Villanueva, 
    2011-Ohio-4831
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96866
    WILLIE BANDY
    RELATOR
    vs.
    JUDGE JOSE A. VILLANUEVA
    RESPONDENT
    JUDGMENT:
    WRIT DENIED
    Writ of Procedendo
    Motion No. 445730
    Order No. 447790
    RELEASE DATE: September 20, 2011
    FOR RELATOR
    Willie Bandy, pro se
    Inmate No. 431-465
    Grafton Correctional Institution
    2500 South Avon Belden Road
    Grafton, OH 44044
    ATTORNEYS FOR RESPONDENT
    William D. Mason
    Cuyahoga County Prosecutor
    By: James E. Moss
    Assistant Prosecuting Attorney
    Justice Center - 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    SEAN C. GALLAGHER, J.:
    {¶ 1} Relator, Willie Bandy, is the defendant in State v. Bandy, Cuyahoga County
    Court of Common Pleas Case No. CR-417888, which has been assigned to Judge Jose A.
    Villanueva. In the body of his complaint in procedendo, Bandy requests that Judge
    Villanueva rule on Bandy’s motion to withdraw guilty plea filed on August 9, 2010.1
    1
    In the caption of the complaint, Bandy named the State of Ohio as the respondent. By a
    previous entry in this action, this court instructed the clerk to substitute Judge Jose A. Villanueva for
    {¶ 2} Respondent has filed a motion for summary judgment attached to which is a
    copy of the journal entry received for filing by the clerk on June 28, 2011 denying
    Bandy’s motion to withdraw guilty plea.                Respondent argues that this action in
    procedendo is, therefore, moot.       We agree.
    {¶ 3} We also note that Bandy has not complied with the requirement of R.C.
    2969.25 that he provide an affidavit describing “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.”
    R.C. 2969.25(A). Failure to comply with this provision provides a basis for dismissal of
    an action in procedendo. State ex rel. Huffman v. Ambrose, Cuyahoga App. No. 95546,
    
    2010-Ohio-5376
    . Bandy also failed to support his complaint with a statement setting
    forth the balance in his inmate account as certified by the institutional cashier.          See R.C.
    2969.25(C). “This also is sufficient reason to deny the writ, deny indigency status, and
    assess costs against the relator.” Id. ¶9.
    {¶ 4} Additionally, Loc.App.R. 45(B)(1)(a) requires that a complaint in an
    original action be verified and supported by an affidavit specifying the details of the
    claims.    Bandy’s “Verification” states, in part, that “all the facts in this petition are true
    and accurate to the best of my personal knowledge and belief.”                 It is well-established
    that a relator’s conclusory statement in an affidavit does not comply with the requirement
    of Loc.App.R. 45(B)(1)(a) that an affidavit specify the details of the claim. Failure to do
    the State of Ohio as the respondent and to change the caption in this action accordingly.
    so is a basis for denying relief. See, e.g., State ex rel. Castro v. Corrigan, Cuyahoga
    App. No. 96488, 
    2011-Ohio-1701
    .
    {¶ 5} Furthermore, Bandy has not included the addresses of the parties in the
    caption as required by Civ.R. 10(A), which may also be a ground for dismissal.   Clarke
    v. McFaul, Cuyahoga App. No. 89447, 
    2007-Ohio-2520
    , at ¶5.
    {¶ 6} 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.
    SEAN C. GALLAGHER, JUDGE
    FRANK D. CELEBREZZE, JR., P.J., and
    EILEEN A. GALLAGHER, J., CONCUR