[Cite as State ex rel. Jones v. Cassidy,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL. SAMUEL S. JONES, :

Relator, : No. 110176 v. :

JUDGE MARILYN B. CASSIDY, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: February 12, 2021

Writ of Mandamus Motion No. 543802 Order No. 544017

Appearances:

Samuel S. Jones, pro se.

Barbara A. Langhenry, Cleveland Director of Law, and Craig J. Morice and Amy K. Habinski, Assistant Directors of Law, for respondent.

MARY EILEEN KILBANE, J.:

Relator, Samuel S. Jones, seeks a writ of mandamus directing

respondent, Judge Marilyn B. Cassidy, to vacate all orders entered in Cleveland v.

Jones, Cleveland M.C. No. 2013 CRA 022885. Jones’s complaint for writ of mandamus is dismissed because the charges in that municipal court case have been

dismissed and any interlocutory orders have terminated by operation of law.

Therefore, there is nothing for respondent to vacate. Also, Jones’s complaint is

fatally defective.

I. Procedural and Factual History

Jones filed a complaint for writ of mandamus on December 21, 2020.

There, he asserted that respondent is the judge that presided over the

aforementioned municipal court case. Jones alleged that he was in the hospital

when the case was initiated and never made an appearance, waived his presence, or

was represented by counsel. Jones claims that court proceedings were improperly

conducted in his absence. He asserts that any orders entered in the case are void

and must be vacated.

On January 27, 2021, respondent filed a motion to dismiss. There,

she argued that, among other things, the charges in the municipal court case were

dismissed, and she had no duty to take further action. Jones responded by filing an

amended complaint on January 28, 2021, 28 days after service of his original

complaint and within 28 days of the service of respondent’s Civ.R. 12(B) motion.

See Civ.R. 15(A). This rendered respondent’s motion to dismiss moot. The amended

complaint attached a brief portion of a purported transcript from a July 31, 2013

hearing conducted by respondent. The amended complaint also contained an

affidavit of prior civil actions filed by Jones, which the initial complaint lacked. With

the exception of the addition of a brief statement of the relief requested added to the third page of the complaint, the allegations in the complaint and amended

complaint were the same.

II. Sua Sponte Dismissal

Jones seeks a writ of mandamus. Therefore, he has the burden of

showing by clear and convincing evidence that (1) he has a clear legal right to the

request relief, (2) that respondent has a clear legal duty to provide the requested

relief, and (3) that Jones lacks an adequate remedy in the ordinary course of the law.

State ex rel. Bunting v. Styer,

,

,

, citing State ex rel. Waters v. Spaeth,

,

,

, ¶ 6.

A complaint in an original action before the court of appeals is subject

to dismissal, sua sponte, where the complaint is frivolous or the “claimant obviously

cannot prevail on the facts alleged in the complaint.” State ex rel. Harris v. Toledo,

,

(1995), citing State ex rel. Edwards v. Toledo

City School Dist. Bd. of Edn.,

,

(1995). An

appellate court must presume as true all factual allegations made in the complaint

and must draw all reasonable inferences in favor of the relator. State ex rel. Scott v.

Cleveland,

,

,

, ¶ 14, citing State

ex rel. Brady v. Pianka,

,

,

, ¶ 6.

Jones requests a writ directing respondent to vacate every order

entered in a criminal municipal court case because he was not present or

represented by counsel at any hearing. Jones alleges that respondent lacked jurisdiction to enter orders or hold a hearing. Jones’s chief complaint appears to be

that respondent conducted a hearing on July 31, 2013, without his presence. Jones

has attached an excerpt of a transcript, which we will presume accurately reflects

what occurred in court on that day. The transcript indicates that an arraignment

hearing was scheduled but continued because Jones was in the hospital. The docket

attached to Jones’s amended complaint also shows that proceedings were continued

because Jones was in the hospital. However, the few pages of purported transcript

indicate that respondent set a bail amount on that date. Jones points to this as

actions taken without jurisdiction or authority.

Regardless, the docket attached to the complaint shows that the

charges against Jones were nolled and the case was dismissed on August 16, 2013,

because a county grand jury returned an indictment against him on related charges.

We previously recognized that the municipal court case against Jones

was dismissed as a result of Jones’s grand jury indictment that was returned before

Jones could be arraigned in the municipal court case due to his hospitalization.

State v. Jones, 8th Dist. Cuyahoga No. 107743,

. In that appeal,

Jones argued that errors that occurred in the same municipal court case required

the dismissal of charges in the related common pleas court case. This court

determined that any defect related to the failure to hold a preliminary hearing within

a statutorily prescribed period of time in the municipal court was rendered moot by

the subsequent indictment handed down by grand jury. Id. at ¶ 19, citing State v.

Washington,

,

(8th Dist. 1986). No judgment was rendered against Jones in the underlying municipal

court case because those charges were nolled and dismissed. Therefore, Jones’s

citation to case law indicating that a judgment entered without jurisdiction must be

vacated is inapposite. 1 See, e.g., State ex rel. Tod v. Court of Common Pleas,

(1864). Crim.R. 48 provides for the dismissal of an indictment, information,

or complaint. Pursuant to this rule, once a case is dismissed it is terminated. State

ex rel. Flynt v. Dinkelacker,

,

,

(1st Dist.). Once terminated, the interlocutory orders entered in the case also

terminate. State ex rel. Stifel v. Stokes, 8th Dist. Cuyahoga No. 89466, 2007-Ohio-

997, ¶ 4. After this occurs, with limited exception, “the court loses jurisdiction and

the case ends.” State v. Dare, 7th Dist. Belmont No. 16 BE 0011,

,

¶ 14, citing State v. Sutton,

,

(9th Dist. 1979).

Therefore, there is nothing for respondent to vacate. Any order that

Jones claims is void because it was improperly entered without jurisdiction and

without his presence has already terminated by operation of law. Respondent has

no duty to do what has already been done and mandamus may not be used to compel

a vain act. State ex rel. Bona v. Orange,

,

(1999),

citing State ex rel. Thomas v. Ghee,

,

(1998).

1 Crim.R. 32(C) defines a judgment in a criminal case, and does not include any of the interlocutory orders that were entered in Jones’s case prior to dismissal of the criminal case. Jones’s claims are moot in light of the dismissal of the criminal case, and he

obviously cannot prevail in the instant action.

III. Affidavit of Prior Civil Actions

Finally, Jones’s attempt to amend his complaint to add an affidavit of

prior civil actions in order to comply with R.C. 2969.25(A) is unavailing.

An inmate commencing a civil action against a government entity or

employee must file an affidavit that described each civil action commenced within

the previous five years. The affidavit must include a brief description of each action;

the case name, number, and court; the name of each party; and the outcome. R.C.

2969.25(A)(1)-(A)(4). The statute requires that the affidavit be filed at the time the

action is commenced. R.C. 2969.25(A). “[T]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.” State ex rel. Hall v. Mohr,

, 2014-

Ohio-3735,

, citing Fuqua v. Williams,

, 2003-

Ohio-5533,

, ¶ 9. Strict compliance is required. State ex rel.

Swanson v. Ohio Dept. of Rehab. & Corr.,

,

,

, citing State v. Henton,

,

,

. Jones’s failure to file the required affidavit at the time he filed his initial

complaint, and the inclusion of the affidavit with his amended complaint, means

that Jones has filed prior civil actions within the previous five years that he failed to

disclose when he filed his complaint. This demonstrates that his complaint is fatally

defective, and his later attempt to correct the defect is improper. For all these reasons, the complaint is sua sponte dismissed. Costs to

relator. 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, JUDGE

SEAN C. GALLAGHER, P.J., and EILEEN A. GALLAGHER, J., CONCUR