State ex rel. Ware v. Pureval (Slip Opinion) ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Pureval, Slip Opinion No. 2020-Ohio-4024.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4024
THE STATE EX REL. WARE, APPELLANT, v. PUREVAL, CLERK, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Pureval, Slip Opinion No.
2020-Ohio-4024.]
Mandamus—A complaint should not be dismissed based on a clerk’s error not
caused by party that filed complaint—Court of appeals’ dismissal of
complaint for inmate’s alleged failure to file affidavit of prior actions
required by R.C. 2969.25(A) reversed and cause remanded.
(No. 2020-0162—Submitted May 12, 2020—Decided August 12, 2020.)
APPEAL from the Court of Appeals for Hamilton County, No. C-190563.
________________
Per Curiam.
{¶ 1} Appellant, Kimani Ware, appeals the dismissal of his complaint for a
writ of mandamus against appellee, Hamilton County Clerk of Courts Aftab
Pureval, to compel the production of various public records. For the reason stated
SUPREME COURT OF OHIO
below, we reverse the judgment of the court of appeals and remand the case for
further proceedings.
Background and procedural history
{¶ 2} Ware is an inmate at the Trumbull Correctional Institution. On
January 23, 2019, he sent ten separate public-records requests by certified mail to
Pureval. All ten requests indicated that they were “public records request[s]
pursuant to R.C. 149.43.”
{¶ 3} The office responded separately to each request with the same form
letter stating that the request was “subject to approval from the judge who sentenced
[Ware] (or their successor) according to Section 149.43(B)(8) of the Ohio Revised
Code.” On February 22, 2019, Ware wrote back to the office, arguing that his
requests were not subject to R.C. 149.43(B)(8). The office responded by sending
back the same form letter.
{¶ 4} On October 1, 2019, Ware filed a complaint for a writ of mandamus
in the First District Court of Appeals. The court of appeals granted Pureval’s
motion to dismiss based on Ware’s alleged failure to file an affidavit of prior
actions, as required by R.C. 2969.25(A).
Legal analysis
{¶ 5} The court of appeals dismissed Ware’s complaint for noncompliance
with R.C. 2969.25(A). That statute requires an inmate who commences in the court
of appeals a civil action against a government entity or employee to file 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.” The affidavit must include (1)
a brief description of the nature of the civil action or appeal, (2) the case name, case
number, and court in which the action or appeal was brought, (3) the name of each
party to each action or appeal, and (4) the outcome of each action or appeal. Id.
Compliance with R.C. 2969.25(A) is mandatory, and the failure to comply warrants
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January Term, 2020
dismissal of the action. State v. Henton, 146 Ohio St. 3d 9, 2016-Ohio-1518, 50
N.E.3d 553, ¶ 3.
{¶ 6} In his motion to dismiss, Pureval alleged that Ware had not filed an
affidavit of prior civil actions as required by R.C. 2969.25(A). Ware filed a brief
in opposition to the motion, claiming that he did comply with R.C. 2969.25(A). In
its decision, the court of appeals concluded that although Ware “insists that he did
file an affidavit of prior actions, no such affidavit appears in the record.”
{¶ 7} On appeal, Ware has presented his affidavit of prior civil actions,
which was date-stamped on October 1, 2019, by the First District. The time-
stamped affidavit supports Ware’s allegation that he complied with the statute and
that the clerk’s office failed to place the affidavit in the court file. See Zanesville
v. Rouse, 126 Ohio St. 3d 1, 2010-Ohio-2218, 929 N.E.2d 1044, ¶ 8-9 (endorsement
by the clerk of the fact and date of the filing is evidence of the filing), vacated in
part on reconsideration on other grounds, 126 Ohio St. 3d 1227, 2010-Ohio-3754,
933 N.E.2d 260; Sup.R. 44(E) (“ ‘file’ means to deposit a document with a clerk of
court, upon the occurrence of which the clerk time or date stamps and dockets the
document”).
{¶ 8} This case involves an original action instituted in the court of appeals,
and it appears that the court’s sole basis for dismissing the complaint may have
been the result of a docketing error. A complaint should not be dismissed based on
a clerk’s error that was not caused by the party that filed the complaint. See
Columber v. Kenton, 111 Ohio St. 211, 145 N.E. 12 (1924) (holding that appeal
should not have been dismissed for failure to file a transcript, because error had
been made by clerk of the common pleas court, not the appellant). We therefore
reverse the judgment of the court of appeals dismissing Ware’s complaint, and we
remand for the court to review in the first instance whether the affidavit was filed
and otherwise complies with the requirements of R.C. 2969.25(A).
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SUPREME COURT OF OHIO
Conclusion
{¶ 9} We reverse the judgment of the court of appeals, and we remand the
case for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Kimani Ware, pro se.
_________________
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