The State ex rel. John W. Perotti, Relator,
Ohio Adult Parole Authority, Respondent.
MANDAMUS AND HABEAS CORPUS ON SUA SPONTE DISMISSAL
W. Perotti, pro se.
Michael DeWine, Attorney General, and Kelly N. Brogan, for
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
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.
and DORRIAN, JJ., concur.