State v. Whitman

[Cite as State v. Whitman, 2019-Ohio-1854.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Respondent Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2019CA00024
RICHARD WHITMAN
Relator O P I N IO N
CHARACTER OF PROCEEDINGS: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: May 14, 2019
APPEARANCES:
For Respondent For Relator
JOHN D. FERRERO RICHARD WHITMAN, pro se
STARK COUNTY PROSECUTOR Belmont Correctional Institution #A694724
P.O. Box 540
KRISTINE W. BEARD St. Clairsville, Ohio 43950
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South, Ste. #510
Canton, Ohio 44702-1413
Stark County, Case No. 2019CA00024 2
Hoffman, P.J.
{¶1} Richard Whitman has filed a Verified Complaint for Writ of Mandamus. The
State of Ohio has filed a motion to dismiss. The complaint is procedurally defective in
several ways.
{¶2} Initially, we note the complaint is captioned as the State of Ohio v. Richard
Whitman. A writ of mandamus is required to be brought in the name of the state on
relation to the person seeking the writ. Revised Code 2731.04 provides an “[a]pplication
for the writ of mandamus must be by petition, in the name of the state on the relation of
the person applying, and verified by affidavit.” Further, Whitman has not named a
respondent in the caption. In the paragraph numbered 2 of the Petition, Whitman states
the Stark County Ohio Court of Common Pleas and the Honorable Judge Frank Forcione
are the intended respondents, however, neither is listed in the caption of the complaint.
The failure to properly caption a petition for a writ of mandamus warrants dismissal. See,
e.g., Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226 (1962).
{¶3} Additionally, the bottom of the petition indicates that there are 4 pages of
the petition, however, only the first two pages along with exhibits have been filed. The
petition ends abruptly making a thorough understanding of the petition impossible. The
complaint also lacks the required affidavit.
{¶4} Finally, Whitman has not complied with R.C. 2969.25(A) or (C)(1). Revised
Code Section 2969.25(A) governs the procedure for actions filed by inmates and provides
in relevant part, “(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.”
Stark County, Case No. 2019CA00024 3
{¶5} “[U]nder Ohio law, state writ actions are civil actions. See Henderson v.
James (1895), 52 Ohio St. 242, 259, 39 N.E. 805” Fuqua v. Williams, 100 Ohio St.3d 211,
2003–Ohio–5533, 797 N.E.2d 982, ¶ 7 (2003). The petition in this case did not contain
an affidavit of prior civil actions. The Supreme Court has approved the dismissal of a
petition where an inmate fails to file an affidavit in compliance with R.C. 2969.25. See
Fuqua v. Williams, 2003–Ohio–5533, 100 Ohio St.3d 211, 797 N.E.2d 982, HN 1.
{¶6} Whitman has not filed the required affidavit of prior civil actions.
{¶7} Whitman has also failed to comply with R.C. 2969.25(C)(1), which
mandates he file a statement setting forth his inmate account balance “for each of the
preceding six months, as certified by the institutional cashier.” State ex rel. Jackson v.
Calabrese, 143 Ohio St.3d 409, 2015–Ohio–2918, 38 N.E.3d 880; State ex rel. Castro v.
Corrigan, 129 Ohio St.3d 342, 2011–Ohio–4059, 952 N.E.2d 497.
{¶8} “‘The requirements of R.C. 2969.25 are mandatory, and failure to comply
with them subjects an inmate's action to dismissal.’ ” Boles v. Knab, 129 Ohio St.3d 222,
2011–Ohio–2859, 951 N.E.2d 389, ¶ 1, quoting State ex rel. White v. Bechtel, 99 Ohio
St.3d 11, 2003–Ohio–2262, 788 N.E.2d 634, ¶ 5; State ex rel. McGrath v. McDonnell, 126
Ohio St.3d 511, 2010–Ohio–4726, 935 N.E.2d 830, ¶ 1.
Stark County, Case No. 2019CA00024 4
{¶9} Based upon these procedural defects, we grant the motion to dismiss the
petition.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur