Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State ex rel. Perotti v. Ohio Adult Parole Authority

Court of Appeals of Ohio, Tenth District

March 7, 2017

The State ex rel. John W. Perotti, Relator,
v.
Ohio Adult Parole Authority, Respondent.

         IN MANDAMUS AND HABEAS CORPUS ON SUA SPONTE DISMISSAL

          John W. Perotti, pro se.

          Michael DeWine, Attorney General, and Kelly N. Brogan, for respondent.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Relator John W. Perotti commenced this original action requesting a writ of mandamus and habeas corpus issue against respondent Ohio Adult Parole Authority.

         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this court referred the matter to a magistrate. As the magistrate noted, Perotti filed his original action on October 12, 2016 along with (1) an affidavit of indigency executed in August 2016; (2) an "Affidavit of Prior Actions" executed by relator on August 16, 2016; (3) a document captioned "Combined Affidavit of Inmate Per R.C. 2969.21, et seq." indicating relator has $6.18 in his inmate account, signed by relator and notarized on September 14, 2016; and (4) a document captioned "Mansfield Correctional Institution, Inmate Demand Statement" setting forth the transactions in relator's inmate account for the period of February 1 to August 20, 2016. Neither the combined affidavit of inmate nor the inmate demand statement is certified by the institutional cashier. The magistrate found relator failed to comply with R.C. 2969.25(C) because the statement of account he filed did not include the second half of August or any of September 2016, and, since relator filed his original action on October 12, 2016, he did not show the balance in his inmate account "for each of the preceding six months." R.C. 2969.25(C)(1). Thus, the magistrate recommended that this court sua sponte dismiss the action.

         {¶ 3} Relator filed objections to the magistrate's decision arguing he did supply a statement accounting for a period of six months and that his failure to provide a statement that did not cover the second half of August or any of September was not fatal to his claim. The record reflects that along with his objections, relator filed an updated statement of his inmate account covering the six month period of May 1 to November 2, 2016.

         {¶ 4} Though the magistrate and relator focus on the contents of the statement of account and whether it covers the proper time period, our review of the record indicates the document relator filed with his complaint suffers from a more fundamental flaw: it is not certified by the institutional cashier. Pursuant to R.C. 2969.25(C), an inmate seeking waiver of prepayment of the filing fee on the grounds of indigency must file along with the complaint an affidavit that includes (1) a statement of the amount in the inmate's account for each of the preceding six months as certified by the institutional cashier, and (2) a statement of all other cash and things of value owned by the inmate. The magistrate noted in its decision that the statement of account relator provided was not certified by the institutional cashier, and this failure alone renders relator's filing noncompliant with R.C. 2969.25. Therefore, we need not address the merits of relator's arguments regarding the proper time frame of the six-month statement because the document was not certified by the institutional cashier.

         {¶ 5} As the Supreme Court of Ohio has held, "[t]he requirements of R.C. 2969.25 are mandatory and failure to comply with them requires dismissal of an inmate's complaint." State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, ¶ 4, citing State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259 (1999). Additionally, as this court has recently reiterated, both the affidavit of waiver and the certified statement of account must be filed at the time the inmate files the complaint, and " 'an inmate may not cure the defect by later filings.' " State ex rel Anderson v. Wilson, 10th Dist. No. 15AP-1060, 2016-Ohio-1191, ¶ 5, quoting Hall at ¶ 4. Thus, the updated statement of account relator filed along with his objections does not operate to retroactively comply with the requirements of R.C. 2969.25(C). State ex rel. Swain v. Ohio Adult Parole Auth., 10th Dist. No. 16AP-519, 2017-Ohio-517, ¶ 5. Though we agree with the magistrate's recommendation to sua sponte dismiss relator's complaint due to his failure to comply with R.C. 2969.25(C), we modify the magistrate's decision to reflect relator's failure to provide a certified statement of account as the basis for dismissal.

         {¶ 6} Following an independent review of this matter, we overrule relator's objections to the magistrate's decision. We adopt the magistrate's findings of facts and conclusions of law, with the exception of the modification noted regarding the basis for dismissal under R.C. 2969.25(C). In accordance with the modifications to the magistrate's decision, we sua sponte dismiss this action.

         Case dismissed.

          SADLER and DORRIAN, JJ., concur.

         APPENDIX

...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.