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State ex rel. Harsh v. Mohr

Court of Appeals of Ohio, Tenth District

September 26, 2013

State of Ohio, ex rel. Robert Harsh, Relator,
v.
Gary Mohr, Director, Respondent.

IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

Robert Harsh, pro se.

Michael DeWine, Attorney General, and Zachary T. Brumfield, for respondent.

DECISION

CONNOR, J.

(¶ 1} Relator, Robert Harsh, an inmate incarcerated at the London Correctional Institution, commenced this original action requesting this court to issue a writ of mandamus ordering respondent, Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, to stop removing funds from relator's institutional inmate account and to return such funds to relator's account.

(¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommended that this court grant respondent's motion to dismiss relator's complaint due to relator's failure to comply with the requirements of R.C. 2969.25. Specifically, the magistrate determined that relator failed to file an affidavit listing each civil action or appeal of a civil action filed by relator in the past five years. The magistrate independently confirmed, by reference to the dockets of other courts, that relator failed to provide this court with a complete list of the civil actions which he has filed in the preceding five years.

(¶ 3} On June 26, 2013, relator filed an objection to the magistrate's decision. In his objection, relator asserts that this court should refuse to adopt the magistrate's decision, as courts should generally attempt to decide cases on their merits. Relator asserts that he attempted to list all of his previously filed cases to the best of his abilities, noting that he is currently in prison and thus has limited access to a law library or the "PACER files." (Relator's Objection, ¶ 2.) Relator asks this court to allow him to amend his complaint so he may provide the information required by R.C. 2969.25.

(¶ 4} R.C. 2969.25(A) provides that "[a]t the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit that contains a description of each civil action or appeal * * * that the inmate has filed in the previous five years." The affidavit must include the following information for each of those civil actions or appeals: (1) a brief description of the nature of the civil action or appeal, (2) the case name, case number, and the court in which the civil action or appeal was brought, (3) the name of each party to the civil action or appeal, and (4) the outcome of the civil action or appeal. R.C. 2969.25(A)(1) through (4).

(¶ 5} "It is well-settled that compliance with the requirements of R.C. 2969.25 is mandatory, and that the failure to comply with R.C. 2969.25 requires dismissal of the action." State ex rel. Evans v. Ohio Adult Parole Auth., 10th Dist. No. 10AP-730, 2011-Ohio-2871, ¶ 4, citing State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258 (1999). "[T]he affidavit required by R.C. 2969.25(A) must be filed at the time an inmate commences the civil action or appeal [and] [t]he belated attempt to file the required affidavit does not excuse noncompliance." Evans at ¶ 4, citing Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9. See also Hall v. Collins, 10th Dist. No. 10AP-73, 2010-Ohio-3845, ¶ 10 (documents required under R.C. 2969.25 "must be filed at the time the complaint is filed, " and plaintiffs failure to comply with the statutory requirements "when he filed his complaint subjects his complaint to dismissal"). Because relator failed to file an affidavit at the commencement of this action containing the information required by R.C. 2969.25(A), his objection lacks merit and is overruled.

(¶ 6} We further note that relator filed an "Application to Proceed Pursuant to R.C. 2323.52(D)(3)/(F)(2)" on August 8, 2013. In the application, relator requests leave to proceed, certifying that "nothing frivolous has ever been filed by him or is pending in any court." (Application to Proceed, ¶ 1.) R.C. 2323.52 concerns vexatious litigators. The statute prevents an individual subject to a vexatious litigator order from instituting legal proceedings without first obtaining leave to proceed. Our independent review of the Supreme Court of Ohio's publication of vexatious litigators reveals that relator is not subject to a vexatious litigator order. As such, relator's application to proceed pursuant to R.C. 2323.52(D)(3)/(F)(2) is denied.

(¶ 7} Based upon this court's independent review of the matter, we find that the magistrate has properly determined the facts and applied the pertinent law to them. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we grant respondent's motion to dismiss and dismiss relator's complaint for a writ of mandamus.

Motion to dismiss granted; complaint dismissed.

KLATT, P.J., and TYACK, J., concur

APPENDIX

Rendered on June ...


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