Banks v. Rocco

[Cite as Banks v. Rocco, 2013-Ohio-4048.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100076
JUAN BANKS
RELATOR
vs.
ANDREA ROCCO
RESPONDENT
JUDGMENT:
WRIT DISMISSED
Writ of Mandamus
Motion No. 466842
Order No. 467724
RELEASE DATE: September 16, 2013
FOR RELATOR
Juan Banks, pro se
Inmate No. 603-214
878 Coitsville-Hubbard Road
Youngstown, Ohio 44505
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} On July 2, 2013, the relator, Juan Banks, commenced this mandamus action
against the respondent, Cuyahoga County Clerk of Courts Gerald Fuerst,1 to compel the
clerk to send him records relating to his criminal conviction, including (1) all criminal
complaints, (2) all original police statements, (3) all witness statements, (4) all
summonses, (5) all subpoenas, (6) all affidavits, (7) all jurats, (8) the verdict form, (9)
jury notes, (10) judgment entries, and (11) all trial and pretrial transcripts.2 On July 23,
2013, the respondent clerk filed a motion to dismiss. Banks never filed a response.
For the following reasons, this court grants the motion to dismiss and dismisses the
application for a writ of mandamus.
{¶2} Banks did not fulfill a statutory prerequisite for obtaining records from his
criminal case. The Ohio Public Records statute, R.C. 149.43(B)(8), provides that a
person responsible for public records is not required to permit a person who is
incarcerated pursuant to a criminal conviction to inspect or obtain copies of any public
records concerning a criminal investigation or prosecution unless the judge who imposed
the sentence or the judge’s successor in office finds that the information sought in the
public records is necessary to support what appears to be a justiciable claim of the person.
1
In a prior entry, we recognized that Andrea Rocco has succeeded Gerald E. Fuerst as Clerk
of Courts and instructed the clerk to substitute Andrea Rocco as the respondent and to change the
caption accordingly. See Civ.R. 25(D)(1).
2
In State v. Banks, Cuyahoga C.P. No. CR-546456, a jury found Banks guilty of murder with
firearm specifications.
Although Banks states in his complaint that the records are sought to support habeas
corpus petitions, he does not aver, much less establish, that he has obtained the required
permission from the judge. Accordingly, the respondent has no duty to provide access
or copies to Banks.
{¶3} Moreover, a mandamus petition, especially one filed by a prisoner, must
have certain formal elements in order to be effective and not subject to summary
dismissal. R.C. 2731.04 requires that an application for a writ of mandamus “must be by
petition, in the name of the state on the relation of the person applying.” In other words,
a petitioner must begin his mandamus caption with “State ex rel.” Additionally, Civ.R.
10(A) requires that the caption include the addresses of all the parties.
{¶4} When an inmate commences a civil action or appeal against a government
entity or employee, R.C. 2969.25(A) requires 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. However, the Supreme Court of Ohio has indicated that the affidavit need
not be filed, if the inmate has not commenced any such actions. State ex rel.
Wickensimer v. Bartleson, 123 Ohio St.3d 154, 2009-Ohio-4695, 914 N.E.2d 1045.
Similarly, pursuant to R.C. 2969.25(C), if an inmate seeks waiver of the filing fee, the
poverty affidavit must contain a certified statement from the prison cashier setting forth
the balance in the inmate’s private account for each of the preceding six months. The
failure to comply with this statute subjects an inmate’s action to dismissal. Indeed,
belated attempts to cure these deficiencies may be ineffective. State ex rel. Manns v.
Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, 894 N.E.2d 47.
{¶5} For writ actions filed in the Eighth District, Loc.App.R. 45(B)(1)(a)
requires the petitioner to support the complaint with an affidavit “specifying the details
of the claim.” A “swear to everything” affidavit is insufficient to fulfill this
requirement. State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio
St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402. This court notes that Banks’s petition did
not comply with many, if not all, of these requirements. Potential petitioners are well
advised to comply with the special rules of writ pleading to avoid summary dismissal.
{¶6} Accordingly, this court grants the respondent’s motion to dismiss and
dismisses the application for a writ of mandamus. Relator to pay costs. This court
directs the clerk of court to serve all parties notice of this judgment and its date of entry
upon the journal as required by Civ.R. 58(B).
{¶7} Writ dismissed.
MARY EILEEN KILBANE, JUDGE
MELODY J. STEWART, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR