The Akron Legal News

Court rules amendment to complaint does not constitute following proper procedure

JESSICA SHAMBAUGH
Special to the Legal News
Published: February 2, 2012

A 10th District Court of Appeals panel this week denied a Toledo Correctional Institution inmate’s motion to amend his complaint and dismissed his request for a writ of mandamus.

Mustafa Muhammad’s action to compel the Franklin County Court of Common Pleas to hear his request for a writ of replevin was referred to a magistrate of the court and the panel adopted its findings.

“In accordance with the magistrate’s recommendation, relator’s motion for leave to amend his complaint is denied, and respondent’s motion to dismiss this action is hereby granted,” 10th District Presiding Judge Julia Bryant wrote for the court.

Muhammad filed a writ of replevin June 22, 2010 with the Franklin County Court of Common Pleas, according to case summary. He then filed for a writ of mandamus to require the common pleas court to hear his request for the writ of replevin on April 1, 2011.

Case summary states that with this request Muhammad failed to include any money as security for payment of costs as mandated by Local Rule 12(B) and an affidavit including a “description of each civil action or appeal of a civil action that the inmate has filed in the previous five years,” as required by Revised Code 2969.25(A).

The common pleas court moved to dismiss the action on May 4, 2011, but on May 24 Muhammad made a motion for leave to amend his complaint and add the affidavit which he claimed complied with the Revised Code 2969.25(A).

When reviewing the case, the magistrate cited Fuqua v. Williams, 100 Ohio St.3d 211, which addressed inmate Carlos Fuqua filing for a writ and failing to provide the affidavit required by Revised Code 2969.25(A). Fuqua’s action was dismissed and appealed to the Supreme Court of Ohio, case summary details.

The magistrate stated that the Ohio Supreme Court ruled “Fuqua’s belated attempt to file the required affidavit does not excuse his non-compliance. See R.C. 2969.25(A), which requires that the affidavit be filed ‘at the time an inmate commences a civil action or appeal against a government entity or employee.’”

After citing another similar case, the magistrate determined that Muhammad had failed to fulfill all requirements of the code as of his filing date, April 1, 2011, and only after filing had he sought to remedy the situation.

“But allowing relator to amend his complaint by adding the document will not satisfy Revised Code 2969.25(A)’s requirement,” 10th District Magistrate Kenneth Macke wrote for the court.

“Accordingly it is the magistrate’s decision that this court deny relator’s May 24, 2011 motion for leave to amend his complaint. It is further the magistrate’s decision that this court grant respondent’s motion to dismiss this action.”

The panel reviewed the magistrate’s findings and accepted them.

“Finding no error of law or other defect on the face of the magistrate’s decision, this court adopts the magistrate’s decision as our own, including the findings of fact and conclusions of law,” Bryant wrote.

Fellow 10th District judges Gary Tyack and Julia Dorriann joined Bryant to form the majority.

The case is cited State ex rel. Muhammad v. Franklin County Court of Common Pleas, case No. 11AP-296.

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