[Cite as State ex rel. El v. Butler, 2012-Ohio-3969.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98419 

S/O EX REL., AMUN HONDO EL, 

a.k.a. MARIO HERRING 

RELATOR 

vs. 

COURT OF COMMON PLEAS JUDGE 

 ANNETTE BUTLER, ET AL. 

RESPONDENTS 

JUDGMENT: 

WRIT DENIED 

Writ of Mandamus 

Motion No. 456581 

Order No. 457606 

RELEASE DATE: August 29, 2012 
FOR RELATOR

Amun Hondo El 

C/O Mario Herring #593-580 

Belmont Correctional Institution 

P.O. Box 540 

68518 Bannock Road 

St. Clairsville, Ohio 43950 

ATTORNEYS FOR RESPONDENTS

William D. Mason 

Cuyahoga County Prosecutor 

James E. Moss 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.: 

{¶1} On May 31, 2012, the relator, Amun Hondo El, a.k.a. Mario Herring, 

commenced this mandamus action against the respondents, Judge Annette G. Butler and 

Assistant Prosecuting Attorney Norm Schroth.1

 The relator seeks to compel Schroth to 

respond to his motions to release property and to compel both of the respondents “to lift 

the hold on relator’s seized property to wit motor vehicle and send the court order to 

relator so that he can obtain his seized property from the county impound lot.” 

(Complaint — demand for judgment.) On July 5, 2012, the respondents moved for 

summary judgment on the grounds of mootness. The relator did not file a response. For 

the following reasons, this court grants the respondents’ motion for summary judgment. 

{¶2} The relator alleges that the police seized his motor vehicle on February 6, 

2008. In the underlying case, State v. Herring, Cuyahoga C.P. No. CR-508614, in 

November 2010, the relator pleaded guilty to attempted tampering with evidence, assault 

of a police officer, and trafficking, and the trial court sentenced him to two years in prison. 

 1 The relator originally named former Judge Timothy McGinty as a respondent. However, 

Judge Butler has succeeded to Judge McGinty’s position, and this court previously ordered her 

substitution as a respondent. See App.R. 29(C)(1). 
 On March 9, 2011, the relator filed a demand for the release of his motor vehicle. In 

early April 2011, the trial court referred the matter to Schroth for a response. When 

nothing else was done, the relator commenced this mandamus action. 

{¶3} On June 26, 2012, Schroth filed a response in the underlying case, a certified 

copy of which is attached to the motion for summary judgment. This response states that 

the state of Ohio did not oppose the release of the automobile. Indeed, on January 27, 

2011, the Cleveland Police released the vehicle, and it was available or pick up. Police 

policy is to store the vehicle for 21 days while awaiting retrieval. When the car was not 

retrieved within that period, the car was destroyed on March 25, 2011. In a July 3, 2012 

journal entry, a certified copy of which is attached to the summary judgment motion, Judge 

Butler denied the relator’s motion for release of his motor vehicle; she noted that the 

vehicle was destroyed and no longer exists. 

{¶4} 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. 

Additionally, although mandamus may be used to compel a court to exercise judgment or 

to discharge a function, it may not control judicial discretion, even if that discretion is 

grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). 

 Moreover, mandamus will not issue to compel a vain act. State ex rel. Cotton v. Ghee, 

84 Ohio St.3d 54, 1998-Ohio-679, 701 N.E.2d 989. 

{¶5} In the present case, the respondents have fulfilled their duties. Schroth 
responded to the relator’s motion, and the judge ruled on that motion. To the extent that 

the relator sought to compel the judge to grant his motion, mandamus would not lie. 

Such a ruling would control judicial discretion, and mandamus may not issue for that 

purpose. Furthermore, because the car was destroyed, issuing a mandamus to release the 

car would be a vain act. Accordingly, this mandamus action is moot. 

{¶6} Additionally, under Loc.App.R. 45, a relator must support his complaint 

with an affidavit specifying the details of the claim. R.C. 2969.25 requires prisoners to 

attach affidavits listing lawsuits they have filed for the last five years and to attach poverty 

affidavits with a prison cashier’s statement. The relator in this case tried to submit those 

affidavits, but they were not notarized. Thus, they are ineffective, and the court denies 

the writ on the grounds of procedural deficiencies. Chari v. Vore, 91 Ohio St.3d 323, 

2001-Ohio-49, 744 N.E.2d 763. 

{¶7} Accordingly, this court grants the respondents’ motion for summary 

judgment and denies 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). 

{¶8} Writ denied. 

 

MARY EILEEN KILBANE, JUDGE 

MARY J. BOYLE, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR