[Cite as Freed v. Bova, 2013-Ohio-4378.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99908




                               CURTIS FREED #140799

                                                            RELATOR
                                               vs.

                                       SHERIFF BOVA

                                                            RESPONDENT




                                        JUDGMENT:
                                       WRIT DISMISSED


                                    Writ of Mandamus
                  Motion Nos. 465844, 465869, 466153, 466154, and 467075
                                    Order No. 467826

        RELEASE DATE:              September 30, 2013
FOR RELATOR

Curtis Freed, Pro se
#140799
Cuyahoga County Jail
P.O. Box 5600
Cleveland, Ohio 44101


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: James E. Moss
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} On May 20, 2013, the relator, Curtis Freed, commenced this mandamus

action against the respondent, Cuyahoga County Sheriff Frank Bova, to compel the

sheriff to provide access to the courts by providing notary services, writing materials, and

access to legal materials. Freed stated that he wishes to contest the conditions of his

confinement by commencing an action under 42 U.S.C. 1983. On June 14, 2013, the

sheriff filed a motion to dismiss based on pleading deficiencies and adequate remedy at

law.

       {¶2} On June 26, 2013, Freed moved to amend his petition for mandamus by

submitting an “affidavit” specifying the details of the claim and an “affidavit” of

indigency.   On the same day, he also filed a motion to grant petition for writ of

mandamus that is actually a brief in opposition to the respondent’s motion to dismiss.

On August 1, 2013, Freed filed a motion to amend caption on the writ of mandamus that

attached an “affidavit” of prior civil actions. For the following reasons, this court grants

the sheriff’s motion to dismiss, dismisses the application for a writ of mandamus, and

denies Freed’s various motions.

       {¶3} Freed’s petition suffers from multiple, fatal procedural defects. First, the

petition is defective because it is improperly captioned. Freed styled this petition as

“Curtis Freed #140799 v. Sheriff Bova.” R.C. 2731.04 requires that an application for a

writ of mandamus “must be by petition, in the name of the state on the relation of the

person applying.”    This failure to properly caption a mandamus action is sufficient
grounds for dismissing the petition. Maloney v. Court of Common Pleas of Allen Cty.,

173 Ohio St. 226, 181 N.E.2d 270 (1962).

       {¶4} Loc.App.R. 45(B)(1)(a) requires all complaints for original actions to be

supported by an affidavit specifying the details of the claim. R.C. 2969.25 requires an

affidavit that describes each civil action or appeal filed by the petitioner within the

previous five years in any state or federal court.       R.C. 2969.25(C) requires that an inmate

file a certified statement from the prison cashier setting forth the balance in the

petitioner’s private account for each of the preceding six months.           The failure to comply

with these pleading requirements is cause to dismiss the writ action, deny indigency

status, and assess costs against the relator.      State ex rel. Leon v. Cuyahoga Cty. Court of

Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402; State ex rel.

Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594; State ex

rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; and State ex

rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176,

2000-Ohio-285, 724 N.E.2d 420.

       {¶5} Freed, through his attachments and his motions to amend, endeavors to

supply these affidavits. 1       However, none of them are notarized.                Moreover, for

purposes of a motion to dismiss, the court will accept as true his allegation that the sheriff


       1
          In his prior lawsuit “affidavit,” Freed states that he has not filed a civil action against a
government entity or employee within the last five years. However, this court notes from its own
docket that a Curtis Freed has filed two writ actions within five years of May 20, 2013: State ex rel.
Curtis Freed v. Judge Timothy McMonagle, 8th Dist. Cuyahoga No. 91758, filed July 7, 2008, and
Curtis Freed v. Judge Timothy McMonagle, 8th Dist. Cuyahoga No. 94643, filed February 8, 2010.
does not provide notary services.

       {¶6} Nevertheless, the failure to submit properly notarized affidavits renders those

efforts futile. In Chari v. Vore, 91 Ohio St.3d 323, 2001-Ohio-49, 744 N.E.2d 763, the

Supreme Court of Ohio ruled:

       “Verification” means a “formal declaration made in the presence of an
       authorized officer, such as a notary public, by which one swears to the truth
       of the statement in the document.” Garner, Black’s Law Dictionary (7
       Ed.1999) 1556 * * *.

The Supreme Court of Ohio then reversed the court of appeals’ granting of the writ and

awarding of relief and held that the cause should have been summarily dismissed

because the petition was procedurally defective.        Freed’s   “affidavits” in which he

stated per 28 U.S.C. 1746 that his statements were made under penalty of perjury are

ineffective and not proper affidavits under Ohio law. Griffin v. McFaul, 116 Ohio St.3d

30, 2007-Ohio-5506, 876 N.E.2d 527.          These deficiencies alone provide sufficient

reason to dismiss the application.

       {¶7} The requisites for mandamus are well established: (1) the relator must have a

clear legal right to the requested relief, (2) the respondent must have a clear legal duty to

perform the requested relief, and (3) there must be no adequate remedy at law. State ex

rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978).       Moreover, mandamus

is an extraordinary remedy that is to be exercised with caution and only when the right is

clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d

165, 364 N.E.2d 1 (1977). Furthermore, for purposes of mandamus, “the creation of the

legal duty that a relator seeks to enforce is the distinct function of the legislative branch
of government, and courts are not authorized to create legal duty.”           State ex rel.

Bardwell v. Cleveland, 126 Ohio St.3d 195, 2009-Ohio-3267, 931 N.E.2d 1080, ¶ 5.

Finally, a relator must establish that his right to a writ of mandamus is plain, clear, and

convincing before a court is justified in using the strong arm of the law by way of

granting the writ. State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141,

161, 228 N.E.2d 31 (1967).

       {¶8} In the present case, Freed has cited no legal authority for his proposition that

the sheriff of a city jail must provide notary services, writing materials, and access to

legal materials.   Thus, Freed has not sustained his burden to show entitlement to

mandamus.

       {¶9} In State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 637 N.E.2d 306 (1994),

the relator commenced mandamus actions to compel the warden to provide, inter alia,

access to adequate prison libraries, legal supplies, and notary services.    The Supreme

Court of Ohio ruled a 42 U.S.C. 1983 action provided an adequate remedy at law

precluding relief in mandamus.         The court also ruled that the relator’s vague and

conclusory allegations were insufficient to sustain his claim.      Douglas v. Money, 85

Ohio St.3d 348, 1999-Ohio-381, 708 N.E.2d 697.             Thus, mandamus will not issue

because Freed has an adequate remedy at law.

       {¶10} This court denies Freed’s motions to amend to submit complying affidavits

because his affidavits are not notarized and, thus, ineffective.

       {¶11} In conclusion, this court grants the respondent’s motion to dismiss and

dismisses the application for a writ of mandamus. Relator to pay costs. This court
directs the clerk of court to serve all parties notice of this judgment and its date of entry

upon the journal as required by Civ.R. 58(B).

       {¶12} Writ dismissed.




LARRY A. JONES, SR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
