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State of Ohio Ex Rel. v. Ohio Department of Rehabilitation

October 20, 2011

STATE OF OHIO EX REL.
STEVEN S. BROWN, RELATOR,
v.
OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, RESPONDENT.



The opinion of the court was delivered by: Bryant, P.J.

Cite as State ex rel. Brown v. Ohio Dept. of Rehab. & Corr.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO MAGISTRATE'S DECISION

{¶1} Relator, Steven S. Brown, commenced this original action requesting a writ of mandamus that not only orders respondent, Ohio Department of Rehabilitation and Correction, to send him certain documents he requested under Ohio's public records statute, but also awards him damages.

I. Facts and Procedural History

{¶2} Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision, appended here, including findings of fact and conclusions of law. After denying the parties' cross-motions for summary judgment, the magistrate determined respondent replied to relator's public records request in a timely fashion. Moreover, the magistrate further noted relator failed to comply with the terms of R.C. 2969.25(C). Accordingly, the magistrate determined

(1) relator is not entitled to a writ of mandamus, and (2) the action properly may be dismissed for relator's failure to comply with the mandatory provisions of R.C. 2969.25.

II. Disposition

{¶3} Relator's case suffers at least two fatal deficiencies.

A. R.C. 2969.25

{¶4} R.C. 2969.25(A) specifies that "[a]t the time an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit" describing "each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court." R.C. 2969.25(C) provides that "[i]f an inmate who files a civil action * * * against a government entity or employee seeks a waiver of the prepayment of the full filing fees assessed by the court in which the action or appeal is filed," then "the inmate shall file with the complaint * * * an affidavit that the inmate is seeking a waiver of the prepayment of the court's full filing fees and an affidavit of indigency." The affidavit of waiver and indigency must contain a statement setting forth (1) the balance in the inmate's account "for each of the preceding six months, as certified by the institutional cashier," and (2) "all other cash and things of value owned by the inmate at that time."

{¶5} When relator filed his complaint, he also filed an "Affidavit of Prior Action," to which relator swore before a notary public. The affidavit lists by name and case number the actions relator filed against governmental entities or employees in federal or state court and states the outcome, though its description of the cases is minimal. The affidavit may comport minimally with the statutory requirements of R.C. 2969.25.

{¶6} Relator's affidavit of indigency does not. Relator's affidavit of indigency, though ultimately inadequate, satisfies a portion of R.C. 2969.25(C) in that he avers he has no means of financial support and no assets of value. R.C. 2969.25(C)(1), however, also requires that the affidavit include a statement setting forth the balance in the inmate's account for each of the preceding six months, along with the institutional cashier's certification of the statement. Relator's filings failed to include the necessary statement of his account and the cashier's certification.

{¶7} The Supreme Court of Ohio stated "[i]t is well settled that ' "[t]he requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate's action to dismissal." ' " State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶4, quoting State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-Ohio-854, ¶5, quoting State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio- 2262, ¶5. Even an attempt to later correct the deficiencies with the documents necessary to satisfy R.C. 2969.25(C) fails, documents must be filed at the time the complaint is filed. Brown v. Ohio Adult Parole Auth., 10th Dist. No. 09AP-797, 2010-Ohio-872, ¶11.

Relator's failure to comply fully with the requirements of R.C. 2969.25 when he filed his complaint subjects his complaint to dismissal.

{¶8} Relying on State ex rel. Holloman v. Collins, 10th Dist. No. 09AP-1184, 2010-Ohio-3034, relator suggests this court determined R.C. 2969.25 does not apply to actions under R.C. 149.43. Contrary to relator's contentions, Holloman did not address the issue. The magistrate's decision determined Holloman complied with the requirements of R.C. 2969.25, so the magistrate determined dismissal was unwarranted. The court adopted the magistrate's decision and thus never reached the issue of whether a failure to comply with R.C. 2969.25 warrants dismissal in an action initiated pursuant to R.C.149.43. Moreover, relator points to no statutory provision excepting him from the requirements of R.C. 2969.25 in this action. Indeed, authority indicates to the contrary. See State v. Norman, 2d Dist. No. 23106, 2009-Ohio-165 and Watson v. Foley, 2d Dist. No. CA 20970, 2005-Ohio-2761.

{¶9} Accordingly, we dismiss relator's complaint for failure to comply with the mandatory provisions of R.C. 2969.25.

B. Objections

{¶10} Even if we were to consider the merits of relator's complaint, we would not grant the relief he seeks. Relator sought an extension of time to file objections to the magistrate's decision, and this court granted his motion to the extent that any objections be filed no later than July 29, 2011. Relator sought a further extension, which this court denied. Relator nonetheless attempted to file untimely objections to the magistrate's decision on September 6, 2011, which we strike pursuant to respondent's motion. If no objections are timely filed, the court may adopt the magistrate's decision unless it determines an error of law or other defect is evident from the face of the decision. Civ.R. 53(D)(4)(c). Because this magistrate's decision reflects no error of law of other defect evident on the face of the decision, we would not grant the requested relief.

{¶11} Accordingly, we dismiss relator's action for failure to comply with the requirements of R.C. 2969.25(C).

Motion to strike granted;

action dismissed.

FRENCH and DORRIAN, JJ., ...


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