Miller-El v. State

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[Cite as Miller-El v. State, 2021-Ohio-3466.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA MICHAEL MILLER-EL, : Relator, : No. 110727 v. : STATE OF OHIO, : Respondent. : JOURNAL ENTRY AND OPINION JUDGMENT: COMPLAINT DISMISSED DATED: September 24, 2021 Writ of Mandamus Motion No. 549080 Order No. 549174 Appearances: Michael Miller-El, pro se Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent. EILEEN T. GALLAGHER, J.: Michael Miller-El, the relator, has filed a complaint for a writ of mandamus. Miller-El seeks dismissal of the criminal complaint filed in State v. Miller-El, Cuyahoga C.P. No. CR-19-641058-A. The complaint for a writ of mandamus is premised upon various allegations of violations of Miller-El’s constitutional rights and federal law. The Cuyahoga County Prosecuting Attorney has filed a Civ.R. 12(B)(6) motion to dismiss that is granted for the following reasons. I. Procedural Defects Initially, we find that the complaint for a writ of mandamus is procedurally defective. A. Failure to comply with R.C. 2969.25(A) Pursuant to R.C. 2969.25(A), an inmate that commences a civil action against a government entity or employee must file a sworn affidavit that contains a description of each civil action or appeal of a civil action filed in the previous five years in any state or federal court. State ex rel. McGrath v. McDonnell, 126 Ohio St.3d 511, 2010-Ohio-4726, 935 N.E.2d 830. Miller-El has failed to comply with R.C. 2969.25(A). B. Failure to comply with R.C. 2969.25(C)(1) R.C. 2969.25(C)(1) requires that Miller-El file a statement setting forth his inmate account balance for each of the preceding six months as certified by the institutional cashier. Miller-El has failed to provide this court with a certified statement setting forth the balance in his inmate account. Freed v. Bova, 8th Dist. Cuyahoga No. 99908, 2013-Ohio-4378; Turner v. Russo, 8th Dist. Cuyahoga No. 87852, 2006-Ohio-4490. C. Failure to comply with Civ.R. 10(A) Miller-El has failed to comply with Civ.R. 10(A), which requires that the complaint must include the addresses of all parties in the caption of the complaint for a writ of mandamus. Bandy v. Villanueva, 8th Dist. Cuyahoga No. 96866, 2011-Ohio-4831. D. Improper Caption We also find that Miller-El’s complaint is defective because it is improperly captioned. Miller-El styled this action as “State of Ohio vs. Michael Miller-El.” Pursuant to R.C. 2731.04, a complaint for a writ of mandamus must be brought in the name of the state on relation of the person applying for the writ of mandamus. Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio5795, 841 N.E.2d 766; State ex rel. Simms v. Sutula, 81 Ohio St.3d 110, 689 N.E.2d 564 (1998); Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270 (1962). II. Mandamus Requirements and Analysis Finally, the complaint for a writ of mandamus fails to state a claim upon which relief can be granted. For this court to issue a writ of mandamus, MillerEl must demonstrate: (1) that Miller-El possesses a clear legal right to the relief prayed for, (2) that the trial judge presiding over State v. Miller-El, Cuyahoga C.P. No. CR-19-641058 possesses a clear legal duty to perform the requested act, and (3) there exists no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 451 N.E.2d 225 (1983); State ex rel. Westchester v. Bacon, 61 Ohio St.2d 42, 399 N.E.2d 81 (1980); State ex rel. Heller, v. Miller, 61 Ohio St.2d 6, 399 N.E.2d 66 (1980); State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978) A thorough review of the complaint for mandamus fails to reveal that Miller-El has established a clear legal right or that the trial court judge possesses any legal duty that must be enforced. State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510; State ex rel. Woods v. Gagliardo, 49 Ohio St.2d 196, 360 N.E.2d 705 (1977). Of greater importance is the fact that Miller-El pled guilty to one count of retaliation (R.C. 2921.05) and was sentenced to time served on July 26, 2021, in State v. Miller-El, Cuyahoga C.P. No. CR-19-641058-A. Miller-El possesses an adequate remedy in the ordinary course of the law through an appeal of his plea of guilty. State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003; State ex rel. Kuczak v. Safford, 67 Ohio St.3d 123, 616 N.E.2d 230 (1993); Henderson v. Saffold, 8th Dist. Cuyahoga No. 100406, 2014-Ohio-306. Miller-El has failed to state a claim upon which relief can be granted and dismissal is appropriate pursuant to Civ.R. 12(B)(6). State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966. Accordingly, we grant the motion to dismiss filed by the Cuyahoga County Prosecuting Attorney. Costs to Miller-El. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B). Complaint dismissed. ___________________________ EILEEN T. GALLAGHER, JUDGE MARY J. BOYLE, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR

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