[Cite as State ex rel. Whitt v. Given, 2020-Ohio-1351.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                                  JUDGES:
STATE EX REL.                                             :       Hon. William B. Hoffman, P.J.
STEPHEN H. WHITT                                          :       Hon. W. Scott Gwin, J.
                                                          :       Hon. Earle E. Wise, Jr., J.
                                       Relator            :
                                                          :
-vs-                                                      :       Case No. 2020CA0002
                                                          :
JASON GIVEN,                                              :
PROSECUTOR OF COSHOCTON                                   :       OPINION
OHIO,
COSHOCTON COUNTY, OHIO,
AND STATE OF OHIO

                               Respondents




CHARACTER OF PROCEEDING:                                      Writ of Mandamus and Prohibition



JUDGMENT:                                                     Dismissed


DATE OF JUDGMENT ENTRY:                                       April 3, 2020


APPEARANCES:

For Relator                                                   For Respondents

STEPHEN H. WHITT                                              JASON W. GIVEN
#A629461                                                      Prosecuting Attorney
Chillocothe Correctional Institute                            318 Chestnut Street
P.O.Box 5500                                                  Coshocton, OH 43812
15802 SR 104
North Chillicothe, OH 45601
[Cite as State ex rel. Whitt v. Given, 2020-Ohio-1351.]


Gwin, J.,

        {¶1}     On March 13, 2020, Stephen H. Whitt filed a Petition for a Writ of Mandamus

and Prohibition against Jason Given, Coshocton County Prosecutor, and the state of

Ohio. Although it is not entirely clear the relief Mr. Whitt requests, he concludes his

Petition by stating: “I ask this court to impeach the testimony of [a witness] and grant this

defendant the right to have a fair trial under the United States Constitution, Bill of Rights,

and the Ohio Constitution * * *” [Petition, p. 10] Mr. Whitt bases this request on several

grounds. First, at trial Mr. Whitt claims there was no evidence, witnesses, or proof to

establish beyond a reasonable doubt where any of the crimes occurred and therefore, the

trial court did not have jurisdiction over him. [Id., pp. 2-3] Second, Mr. Whitt argues a

witness admitted to lying to impede and hinder an investigation, and the prosecutor

withheld this information until trial. [Id., p. 4] But for these errors, Mr. Whitt concludes he

would have been acquitted of all charges. [Id., p. 7]

        {¶2}     In response, Prosecutor Given filed a memorandum opposing the Petition

and requests dismissal. Although Prosecutor Given does not specifically reference Civ.R.

12(B)(6) in support of his request for dismissal, “[a] court can dismiss a mandamus action

under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted if, after

all factual allegations of the complaint are presumed true and all reasonable inferences

are made in relator’s favor, it appears beyond doubt that he can prove no set of facts

entitling him to the requested writ of mandamus.” State ex rel. Russell v. Thornton, 111

Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 9. Further, “[a] court ‘may dismiss a

complaint sua sponte and without notice when the complaint is frivolous or the claimant

obviously cannot prevail on the facts alleged in the complaint. State ex rel. Brooks v.
Coshocton County, Case No. 2020CA0002                                                      3


O'Malley, 117 Ohio St.3d 385, 2008-Ohio-1118, 884 N.E.2d 42, ¶ 5.’ ” State ex rel. Allen

v. Goulding, 156 Ohio St.3d 337, 2019-Ohio-858, 126 N.E.3d 1104, 1106, ¶ 6.

       {¶3}    We grant Mr. Given’s request for dismissal because Mr. Whitt cannot prove

any set of facts entitling him to the requested relief. Mr. Whitt previously filed essentially

the identical Petition for a Writ of Mandamus and Prohibition on February 14, 2020. See

State ex rel. Stephen H. Whitt v. Jason Givens (sic), Prosecutor of Coshocton Ohio,

Coshocton County, Ohio & State of Ohio, 5th Dist. Coshocton No. 2020CA0001, 2020-

Ohio-750. [Hereinafter referred to as Whitt I]. In Whitt I, we sua sponte dismissed Mr.

Whitt’s Petition because he failed to comply with the procedural requirements for a

mandamus/prohibition complaint as set forth in R.C. 2969.25. Id. at ¶¶ 2-6.

       {¶4}    Although in his present Petition Mr. Whitt attached a statement setting forth

the balance in his inmate account for the preceding six months, as required by R.C.

2969.25(C), he still has not complied with the mandates of section (A)(1)-(4) of the statute.

These sections require an inmate to file an affidavit that contains a description of each

civil action or appeal action the inmate filed in the previous five years in any state or

federal court. Mr. Whitt failed to include Whitt I in his list of civil actions. Further, the statute

requires not only that an inmate identify the civil actions, but there must also be included

a brief description of the nature of the civil action or appeal; the case name and number,

and the court in which the civil action or appeal was filed; the name of each party to the

civil action or appeal; and the outcome of the civil action or appeal. R.C. 2969.25(A)(1)-

(4).

       {¶5}    Not one of the actions listed in Mr. Whitt’s affidavit satisfies all of these

statutory requirements. This reason alone serves as a basis to sua sponte dismiss Mr.
Coshocton County, Case No. 2020CA0002                                                  4


Whitt’s Petition. See State ex rel. Norris v. Giavasis, 100 Ohio St.3d 371, 2003-Ohio-

6609, 800 N.E.2d 365, ¶¶ 2, 4 (Ohio Supreme Court affirmed sua sponte dismissal of writ

of mandamus for failure to comply with R.C. 2969.25(A)).

       {¶6}   A second ground that supports dismissal of Mr. Whitt’s Petition is the fact

that to be entitled to mandamus relief, relator must show a clear legal right to the relief

prayed for, the respondent must be under a clear legal duty to perform the requested act,

and relator must have no plain and adequate remedy in the ordinary course of law.

(Citations omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d

225 (1983). A writ of mandamus commands “an inferior tribunal, a corporation, board, or

person” to perform an act. R.C. 2731.01. Here, the state of Ohio is not a party identified

in R.C. 2731.01 and therefore, is not under a clear legal duty to perform the acts

requested by Mr. Whitt.

       {¶7}   Finally, a third ground that supports dismissal of Mr. Whitt’s Petition

requesting prohibition relief against Prosecutor Given and the state of Ohio is the fact that

a writ of prohibition is used to limit judicial authority. In order for a writ of prohibition to

issue, petitioner must prove that: (1) the trial court is about to exercise judicial authority;

(2) the exercise of judicial authority is not authorized by law; and (3) the petitioner has no

other adequate remedy in the ordinary course of law if a writ of prohibition is denied.

(Citation omitted.) State ex rel. Smith v. Hall, 145 Ohio St.3d 473, 2016-Ohio-1052, 50

N.E.3d 524, ¶ 7. Here, the named respondents are the Coshocton County Prosecutor and

the state of Ohio. Neither party is a judge or in any way acts in a judicial capacity. A writ

of prohibition cannot lie to prevent the prosecutor or the state of Ohio from acting. See
Coshocton County, Case No. 2020CA0002                                               5


Bank of New York Mellon v. Chrzan, 5th Dist. Fairfield No. 17 CA 48, 2018-Ohio-508, ¶¶

3-4.

       {¶8}    For the above reasons, we dismiss Mr. Whitt’s Petition for a Writ of

Mandamus and Prohibition.

       {¶9}    The clerk of courts is hereby direct to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

       {¶10} PETITION DISMISSED.

       {¶11} COSTS TO RELATOR.

       {¶12} IT IS SO ORDERED.



By Gwin, J.,

Hoffman, P.J., and

Wise, Earle, J., concur




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