[Cite as State ex rel. Joseph v. Licking Cty. Common Pleas Court , 2014-Ohio-4953.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO, ex rel.,                            :            JUDGES:
DAVID JOSEPH, SR.                                  :
                                                   :            Hon. William B. Hoffman, P.J.
        Relator                                    :            Hon. Sheila G. Farmer, J.
                                                   :            Hon. John W. Wise, J.
-vs-                                               :
                                                   :
LICKING COUNTY COMMON                              :           Case No. 14-CA-40
PLEAS COURT                                        :
                                                   :
        Respondent                                 :            OPINION




CHARACTER OF PROCEEDING:                                        Petition for Writ of Mandamus



JUDGMENT:                                                      Dismissed




DATE OF JUDGMENT:                                               November 4, 2014




APPEARANCES:

For Respondent                                                  For Relator

ANTHONY W. STOCCO                                              DAVID A. JOSEPH, SR., Pro Se
Licking County Assistant Prosecutor                            A626-391
20 S. Second Street                                            Marion Correctional Institution
Newark, OH 43055                                               940 Marion-Williamsport road
                                                               P. O. Box 57
                                                               Marion, OH 43302-0057
Licking County, Case No. 14-CA-40                                                            2

Farmer, P.J.

       {¶1}    Relator, David A. Joseph, Sr., has filed a Petition for Writ of Mandamus

requesting Respondent be ordered to conduct an oral hearing on a motion for judicial

release filed by Relator in the trial court on December 12, 2013.

       {¶2}    Respondent has filed a motion to dismiss based upon Relator’s failure to

comply with R.C. 2969.25 and based upon mootness.

       {¶3}    For a writ of mandamus to issue, the relator must have 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. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

       {¶4}    Relator is an inmate at the Ohio Department of Corrections. He has not

filed an affidavit listing all prior civil actions as required by R.C. 2969.25 which provides,

               (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. The affidavit shall include all of the following for

       each of those civil actions or appeals:

               (1) A brief description of the nature of the civil action or appeal;

               (2) The case name, case number, and the court in which the civil

       action or appeal was brought;

               (3) The name of each party to the civil action or appeal;
Licking County, Case No. 14-CA-40                                                            3


               (4) The outcome of the civil action or appeal, including whether the

      court dismissed the civil action or appeal as frivolous or malicious under

      state or federal law or rule of court, whether the court made an award

      against the inmate or the inmate's counsel of record for frivolous conduct

      under section 2323.51 of the Revised Code, another statute, or a rule of

      court, and, if the court so dismissed the action or appeal or made an

      award of that nature, the date of the final order affirming the dismissal or

      award.



      {¶5}     Ohio Rev. Code Ann. § 2969.25 (West)

      {¶6}     “The requirements of R.C. 2969.25 are mandatory and failure to comply

with them requires dismissal of an inmate's complaint. State ex rel. Washington v. Ohio

Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999), citing State ex rel.

Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998). As held by

the court of appeals, the affidavit required by R.C. 2969.25(A) must be filed at the time

the complaint is filed, and an inmate may not cure the defect by later filings. Fuqua v.

Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶ 9 (an inmate's

“belated attempt to file the required affidavit does not excuse his noncompliance. See

R.C. 2969.25(A), which requires that the affidavit be filed ‘[a]t the time that an inmate

commences a civil action or appeal against a government entity or employee.’ ”

[emphasis sic] ).” State ex rel. Hall v. Mohr, 2014-Ohio-3735.

      {¶7}     Because Relator failed to file this affidavit of prior civil actions at the time

the petition was commenced, the petition must be dismissed. Further, as to the issue of
Licking County, Case No. 14-CA-40                                                     4


mootness, the Supreme Court has held, “Neither procedendo nor mandamus will

compel the performance of a duty that has already been performed.” State ex rel. Kreps

v. Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.

      {¶8}   Relator argues Respondent was required to hold an oral hearing on the

motion, however, the judicial release statute provides, “[T]he court may deny the motion

without a hearing or schedule a hearing on the motion. . .” R.C. 2929.20(D).

      {¶9}   Respondent issued a ruling on Relator’s third motion for judicial release

which is the subject of this action on May 20, 2014. Respondent was authorized by

statute to do so without holding a hearing, therefore, the complaint is moot.

      {¶10} Because Relator did not file the required prior civil actions affidavit and

because the complaint has become moot, the motion to dismiss is granted, and this

cause is dismissed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.



SGF/as
