[Cite as Henderson v. State, 2011-Ohio-5679.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97042



                         PAUL S. HENDERSON, ET AL.
                                                              RELATORS

                                                 vs.

                                      STATE OF OHIO
                                                              RESPONDENT




                                    JUDGMENT:
                                COMPLAINT DISMISSED


                                          Writ of Mandamus
                                          Motion No. 446380
                                          Order No. 448501

RELEASE DATE: October 28, 2011
FOR RELATORS

Paul S. Henderson
Inmate No. 573-468
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301-0057


ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113



ALSO LISTED

Patricia L. Casey
Inmate No. 80099
1479 Collins Avenue
Marysville, Ohio 43040
MARY EILEEN KILBANE, A.J.:

       {¶ 1} Relator, Paul S. Henderson, is the defendant in State v. Henderson,

Cuyahoga Cty. Court of Common Pleas Case Nos. CR-520709 and CR-530899.

Henderson avers in the body of his complaint that the prosecuting attorney is “removing

money” from Henderson’s prison account. Complaint, ¶3. He requests that this court

issue a writ of mandamus to prevent the prosecuting attorney from removing funds from

Henderson’s prison account and to return to him funds that have already been removed.

       {¶ 2} Henderson also makes the same claim and requests the same relief on

behalf of Patricia L. Casey, whom he avers is in custody at the Ohio Reformatory for

Women in Marysville. Casey has not signed the complaint or any of the other filings

purportedly made on her behalf.

       {¶ 3} In Traywick v. Fuerst, Cuyahoga App. No. 96357, 2011-Ohio-947,

Benjamin J. Wherry signed the complaint in an original action in this court on behalf of

the relator, Taheim Traywick.        “Wherry’s attempt to commence this action on

Traywick’s behalf constitutes the unauthorized practice of law. Wherry concedes that he

is not admitted to practice law and he has not provided any other basis for exemption

from the requirements of R.C. Chapter 4705 and Gov.Bar.R XII. As a consequence, we

dismiss this action.” Id. ¶2.

       {¶ 4} In this action, Henderson does not provide this court with any basis for

concluding that he is admitted to the practice of law. As a consequence, we must dismiss

this action with respect to the claim asserted on behalf of Casey.
       {¶ 5} The complaint is also defective.      Henderson has titled this action as

“Henderson v. State.”      As noted above, however, in the body of the complaint he

requests that this court grant relief against the prosecuting attorney. Henderson has not,

therefore, identified the respondent in the caption. “Without properly identifying the

respondent it is impossible to determine whether or not there are rights and duties

enforceable in mandamus. This court has held that this deficiency alone also warrants

dismissal.” State ex rel. Sherrills v. State (Aug. 3, 2000), Cuyahoga App. No. 78261, at

1 (citations deleted), affirmed by State ex rel. Sherrills v. State, 91 Ohio St.3d 133,

2001-Ohio-299, 742 N.E.2d 651. (“As the court of appeals held, Sherrills’s complaint is

defective because he failed to name the proper respondents and did not include their

addresses.” ¶1, citations deleted).

       {¶ 6} Likewise, in this action, Henderson has not included the address of

respondent in the caption as required by Civ.R. 10(A). Additionally, the action is not on

relation of the state as required for an action in mandamus by R.C. 2731.04, which may

also be a ground for dismissal.       Clarke v. McFaul, Cuyahoga App. No. 89447,

2007-Ohio-2520, at ¶5.

       {¶ 7} Although Henderson failed to name the proper respondent in the caption,

we will dispose of this action on the merits of his claim that he is entitled to relief in

mandamus against the prosecuting attorney.

       {¶ 8} Henderson and Casey have filed a motion for summary judgment.

Respondent has filed a motion to dismiss. For the reasons stated below, we grant the
motion to dismiss Henderson’s claim for relief in mandamus and deny relators’ motion

for summary judgment.

       {¶ 9} Henderson contends that respondent lacks the authority to collect court

costs from Henderson’s prison account. In both of the underlying cases, the trial court

determined that Henderson was indigent and appointed counsel. He has also filed an

affidavit of indigency in this action.

       {¶ 10} In Collins v. State, Cuyahoga App. No. 97111, 2011-Ohio-4964 , the relator

requested this court to issue a writ of mandamus compelling the prosecuting attorney to

stop removing funds from his prison account. Collins argued that the United States

District Court had determined that the removal of funds without a garnishment hearing

was unconstitutional. Henderson relies on Clay v. Fisher (S.D.Ohio 1984), 584 F.Supp.

730 (followed in Hutchinson v. Cox (S.D.Ohio 1992), 784 F.Supp. 1339), the same

authorities cited by Collins. “* * * [B]oth Clay and Hutchinson arose from efforts to

collect judgments in civil actions. This action, however, arises from collection of court

costs resulting from a criminal conviction. We hold, therefore, that the district court’s

decisions in Clay and Hutchinson are not controlling in this action.”        Collins, ¶6.

(Emphasis in original.)

       {¶ 11} In Collins, we then examined the authorities: requiring the trial court to

include the costs of prosecution in the sentencing entry, R.C. 2947.23(A)(1); authorizing

the clerk to attempt the collection of court costs assessed against an indigent defendant,

State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393; and authorizing the
department of rehabilitation and correction to apply funds in a prisoner’s account to a

court judgment without proceedings in aid of execution, R.C. 5120.133(A).

         {¶ 12} We concluded in Collins that the relator did not have a clear legal right to

relief and that the prosecuting attorney did “not have a clear legal duty to stop notifying

the department of rehabilitation and correction of an outstanding obligation to pay court

costs.” Collins, ¶11. We also noted that a defendant in a criminal case may request at

sentencing that the trial court waive payment of costs. If the motion to waive costs is

denied, the defendant has an adequate remedy by way of appeal. See State v. Holloman,

Cuyahoga App. No. 95896, 2011-Ohio-4236, ¶41; State ex rel. Pless v. McMonagle

(2000), 139 Ohio App.3d 503, 744 N.E.2d 274.

         {¶ 13} Henderson requests the same relief as Collins did and asserts the same

rationale. In light of our holding in Collins, therefore, we hold that Henderson has failed

to state a claim in mandamus upon which relief can be granted.

         {¶ 14} Accordingly, we deny relators’ motion for summary judgment and grant

respondent’s motion to dismiss. Relators 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).

         Complaint dismissed.



MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
