[Cite as Majid v. Sutula, 2011-Ohio-3993.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97019



                                             ARIF MAJID
                                                                RELATOR

                                                   vs.

                       JUDGE KATHLEEN A. SUTULA
                                                                RESPONDENT




                                    JUDGMENT:
                                COMPLAINT DISMISSED


                                             Writ of Mandamus

                                    Sua Sponte Order No. 446331

RELEASE DATE:                 August 9, 2011
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FOR RELATOR

Arif Majid, pro se
Inmate No. 492-322
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEY FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} On July 8, 2011, the relator, Arif Majid, commenced this mandamus action

to compel the respondent, Judge Kathleen Sutula, to rule upon and issue findings of fact

and conclusions of law for a motion for new trial that he filed on May 19, 2011 in the

underlying case, State of Ohio v. Arif Majid, Cuyahoga County Common Pleas Court

Case No. CR-474447. For the following reasons, this court dismisses the complaint for

a writ of mandamus, sua sponte.

      {¶ 2} First, an inordinate amount of time has not elapsed to warrant mandamus to

compel a ruling. Sup.R. 40(A)(3) provides that motions should be ruled upon within
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120 days from date of filing. Thus, a mandamus complaint to compel a ruling on a

motion that has been pending approximately two months is premature.            State ex rel.

Rodgers v. Cuyahoga Cty. Court of Common Pleas (1992), 83 Ohio App.3d 684, 615

N.E.2d 689, and State ex rel. Atkins v. Hoover, 97 Ohio St.3d 76, 2002-Ohio-5313, 776

N.E.2d 99.

       {¶ 3} Moreover, mandamus does not lie for prospective relief.      “Mandamus will

not lie to remedy the anticipated nonperformance of a duty.         ‘*** The function of

mandamus is to compel the performance of a present existing duty as to which there is a

default.     It is not granted to take effect prospectively, and it contemplates the

performance of an act which is incumbent on the respondent when the application for a

writ is made.’ State ex rel. Federal Homes Properties, Inc. v. Singer (1967), 9 Ohio St.2d

95, 96.” State ex rel. Home Care Pharmacy, Inc. v. Creasy (1981), 67 Ohio St.2d 342,

343-344, 423 N.E.2d 482. The Supreme Court reaffirmed this principle in Ohio Dept. of

Adm. Serv. v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 53, 562 N.E.2d 125 —

 “* * * we do not issue an anticipatory writ of mandamus.” See, also, Mihocka v.

Ziegler (1971), 28 Ohio Misc. 105, 109, 274 N.E.2d 583 — “Mandamus, of course, will

not lie in anticipation of an omission of duty, regardless how strong the presumption may

be that the person will refuse to perform their duty when the proper time arrives.”

       {¶ 4} Next, the petition is defective because it is improperly captioned.      Majid

styled this petition as “Arif Majid v. Kathleen A. Sutula.” R.C. 2731.04 requires that an
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application for a writ of mandamus “must be by petition, in the name of the state on the

relation of the person applying.”   This failure to properly caption a mandamus action is

sufficient grounds for denying the writ and dismissing the petition. Maloney v. Court of

Common Pleas of Allen Cty. (1962), 173 Ohio St. 226, 181 N.E.2d 270.

      {¶ 5} Relator also did not comply with R.C. 2969.25(C), which requires that an

inmate file a certified statement from his prison cashier setting forth the balance in his

private account for each of the preceding six months.    This also is sufficient reason to

deny the mandamus, deny indigency status, and assess costs against the relator.      State

ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842, and State

ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176,

2000-Ohio-285, 724 N.E.2d 420.

      {¶ 6} Accordingly, this court dismisses this complaint for a writ of mandamus,

sua sponte. Relator to pay costs. This court directs the Clerk of the Eighth District

Court of Appeals to serve upon the parties notice of this judgment and its date of entry

upon the journal. Civ.R. 58(B).

      Complaint dismissed.



EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN A. KEOUGH, J., CONCUR
