[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
