State ex rel. Battigaglia v. Bur. of Sentence Computation , 2021 Ohio 3008 ( 2021 )

[Cite as State ex rel. Battigaglia v. Bur. of Sentence Computation, 2021-Ohio-3008.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Romero A. Battigaglia, :
Relator, :
v. : No. 20AP-520
Bureau of Sentence Computation, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on August 31, 2021
Romero A. Battigaglia, pro se.
Dave Yost, Attorney General, and George Horvath, for
respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Romero A. Battigaglia, an inmate incarcerated at the London
Correctional Institution, commenced this action in mandamus seeking an order compelling
respondent, Bureau of Sentence Computation ("bureau"), to correct its computation of
relator's jail-time credit. In response, the bureau filed a motion to dismiss, or, in the
alternative, to revoke or deny in forma pauperis status.1
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate found that the affidavit
1 Relator also filed a motion for default judgment and a motion to take judicial notice.
No. 20AP-520 2
relator filed with his complaint failed to contain all of the information required by R.C.
2969.25(A). Specifically, the magistrate found that relator's affidavit did not contain a brief
description of the nature of the civil action referenced as required by R.C. 2969.25(A)(1).
Nor did the affidavit include the case name and the court in which the referenced case was
brought as required by R.C. 2969.25(A)(2), or the name of each party to the civil action
identified, as required by R.C. 2969.25(A)(3). Lastly, the magistrate determined that
relator failed to comply with the requirements of R.C. 2969.25(A)(4) because relator's
affidavit inaccurately described the outcome of the case referenced. For these reasons, the
magistrate has recommended that we dismiss this case for relator's failure to comply with
the mandatory requirements of R.C. 2969.25(A).
{¶ 3} Relator has filed objections to the magistrate's decision. Relator makes three
arguments in support of his objections. Relator's first argument addresses the underlying
merits of his mandamus action but does not address the deficiencies in his affidavit, which
is the basis for the magistrate's decision. Therefore, that argument is inapplicable to the
issue before us.
{¶ 4} In his second argument, relator contends that his description of the case
identified in his affidavit was sufficient to satisfy the requirements of R.C. 2969.25(A)(1).
However, the requirement set forth in R.C. 2969.25(A)(1) is only one of four requirements
that must be complied with under the statute. Therefore, regardless of relator's alleged
compliance with R.C. 2969.25(A)(1), he makes no argument that he complied with the
remaining three requirements of R.C. 2969.25(A). Nor do we find any error in the
magistrate's determination that relator did not comply with all the statutory requirements.
{¶ 5} Lastly, relator essentially argues that it is unfair to require him to strictly
comply with all of the statutory requirements. However, it is well-established that R.C.
2969.25(A) requires strict compliance. State ex rel. Swanson v. Ohio Dept. of Rehab. &
Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6. Compliance with the provisions of R.C.
2969.25 is mandatory and failure to satisfy the statutory requirements is grounds for
dismissal of the action. Id.; State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio
St.3d 258 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 (1998).
{¶ 6} Because relator's affidavit did not strictly comply with all the requirements of
R.C. 2969.25(A), we overrule relator's objections.
No. 20AP-520 3
{¶ 7} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, 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 the bureau's
motion to dismiss relator's complaint for a writ of mandamus. This dismissal renders moot
relator's motion for default judgment, relator's motion to take judicial notice, and the
bureau's alternative motion to revoke or deny in forma pauperis status.
Objections overruled; case dismissed.
SADLER and JAMISON, JJ., concur.
No. 20AP-520 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Romero A. Battigaglia, :
Relator, :
v. : No. 20AP-520
Bureau of Sentence Computation, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on March 26, 2021
Romero A. Battigaglia, pro se.
Dave Yost, Attorney General, and George Horvath, for
respondent.
IN MANDAMUS
ON MOTIONS
{¶ 8} Relator, Romero A. Battigaglia, has filed this original action requesting that
this court issue a writ of mandamus ordering respondent, Bureau of Sentence Computation
("bureau"), to correct its computation of his jail-time credit. The bureau has filed a
February 5, 2021, motion to dismiss, or, in the alternative, motion to revoke or deny in
forma pauperis status. Relator has also filed a January 6, 2021, motion for default
judgment, and a March 3, 2021, motion to take judicial notice.
Findings of Fact:
{¶ 9} 1. Relator is an inmate incarcerated at London Correctional Institution.
No. 20AP-520 5
{¶ 10} 2. The bureau is a governmental agency responsible for computing release
dates for Ohio inmates.
{¶ 11} 3. On November 12, 2020, relator filed the instant mandamus action asking
this court to order the bureau to correct its computation of his jail-time credit.
{¶ 12} 4. At the time relator filed this mandamus action, he filed an affidavit of prior
civil actions as required by R.C. 2969.25(A). The affidavit provided, in pertinent part:
[Ten]. I have filed the following civil actions:
A). Writ of mandamus Case No. 2020 CA 00125, Respondent
provided what was requested and Relator voluntarily
dismissed the action.
{¶ 13} 5. On January 6, 2021, relator filed a motion for default judgment, seeking a
default judgment because the bureau had not filed an answer to the complaint.
{¶ 14} 6. On January 15, 2021, relator filed a motion to amend his complaint to
change the address upon which the bureau should be served. The magistrate granted the
motion to amend on January 20, 2021, and service upon the bureau was completed on
February 2, 2021.
{¶ 15} 7. On February 5, 2021, the bureau filed a motion to dismiss pursuant to
Civ.R. 12(B)(1) and/or (6) based upon relator's failure to comply with R.C. 2969.25(A),
asserting that relator's affidavit of prior civil actions was insufficient because it did not
include all of the information required by statute. Alternatively, the bureau moved to revoke
or deny in forma pauperis status, if the court were to deny the motion to dismiss.
{¶ 16} 8. On February 22, 2021, relator filed a memorandum contra, claiming that,
although it is not perfectly drawn, the affidavit was sufficient to demonstrate that he was
not a vexatious litigator.
{¶ 17} 9. On March 3, 2021, relator filed a motion to take judicial notice of certain
pleadings filed in the trial court that he claims demonstrate the bureau improperly
calculated his jail-time credit.
No. 20AP-520 6
Conclusions of Law:
{¶ 18} The magistrate recommends that this court grant the bureau's motion to
dismiss this action because relator has failed to comply with the requirements of
R.C. 2969.25(A).
{¶ 19} Civ.R. 12(B)(1) provides a party may seek to dismiss a cause of action based
on lack of jurisdiction over the subject matter of the litigation. When reviewing a judgment
on a motion to dismiss under Civ.R. 12(B)(1), a court must determine whether the
complaint alleges any cause of action cognizable to the forum. T & M Machines, LLC v. Yost,
10th Dist. No. 19AP-124, 2020-Ohio-551, ¶ 9. "[S]ubject-matter jurisdiction involves 'a
court's power to hear and decide a case on the merits and does not relate to the rights of the
parties.' " Lowery v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-730, 2015-Ohio-
869, ¶ 6, quoting Vedder v. Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶ 14.
{¶ 20} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the
complaint. "In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6) 'it must appear
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him
to recovery.' " T & M Machines, LLC at ¶ 10, quoting O'Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. In construing a complaint upon a Civ.R.
12(B)(6) motion, a court must presume that all factual allegations in the complaint are true
and make all reasonable inferences in the plaintiff's favor. LeRoy v. Allen, Yurasek &
Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14.
{¶ 21} R.C. 2969.25(A) requires an inmate to file, at the time he commences a civil
action against a governmental entity or employee, an affidavit listing each civil action or
appeal of a civil action that he filed in the past five years. R.C. 2969.25(A) provides:
At 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 of a civil action that the inmate has filed
in the previous five years in any state or federal court. The
affidavit shall include all of the following for each of those civil
actions or appeals:
(1) A brief description of the nature of the civil action or
appeal;
No. 20AP-520 7
(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;
(4) The outcome of the civil action or appeal, including
whether the court dismissed the civil action or appeal as
frivolous or malicious under state or federal law or rule of
court, whether the court made an award against the inmate or
the inmate's counsel of record for frivolous conduct under
section 2323.51 of the Revised Code, another statute, or a rule
of court, and, if the court so dismissed the action or appeal or
made an award of that nature, the date of the final order
affirming the dismissal or award.
R.C. 2969.25 (A)(1) through (4).
{¶ 22} R.C. 2969.25 requires strict compliance. State ex rel. Swanson v. Ohio Dept.
of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6. Compliance with the provisions
of R.C. 2969.25 is mandatory and the failure to satisfy the statutory requirements is
grounds for dismissal of the action. State ex rel. Washington v. Ohio Adult Parole Auth.,
87 Ohio St.3d 258 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421(1998). Nothing in R.C. 2969.25 permits substantial compliance. State ex rel. Manns v.
Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4, citing Martin v. Ghee, 10th Dist. No.
01AP-1380, 2002-Ohio-1621. Furthermore, the failure to comply with R.C. 2969.25 cannot
be cured at a later date by belatedly attempting to file a compliant affidavit. State ex rel.
Young v. Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9.
{¶ 23} In the present case, a review of relator's affidavit filed with his complaint in
mandamus reveals that relator has failed to file an affidavit of prior actions that contains
all of the information required by R.C. 2969.25(A). Although relator indicated in the
affidavit that the prior action was a "[w]rit of mandamus," such does not comply with the
requirement in R.C. 2969.25(A)(1) that the affidavit contain a brief description of the nature
of the civil action. See State ex rel. Bey v. [Ohio] Bur. of Sentence Computation, 10th Dist.
No. 19AP-46, 2021-Ohio-70, ¶ 6-11 (dismissal of mandamus action appropriate when the
affidavit indicated the general type of action filed in most of the cases, e.g., original action
in mandamus or writ of habeas corpus, but it did not actually describe the nature of the
actions, such as describing that the cases are original actions in mandamus to compel
No. 20AP-520 8
compliance with a public records request or to compel the judge to vacate relator's guilty
pleas to the offense of murder). Relator's affidavit fails to actually describe the nature of the
action, beyond the general description of "[w]rit of mandamus." This vague description is
insufficient to comply with R.C. 2969.25(A) under the court's holding in Bey.
{¶ 24} Furthermore, the affidavit in the present case does not include the case name
and the court in which the civil action was brought, as required by R.C. 2969.25(A)(2), or
the name of each party to the civil action, as required by R.C. 2969.25(A)(3). Therefore,
dismissal of relator's action is also warranted on these bases. See State ex rel. Russell v.
Ohio Dept. of Rehab. & Corr., 161 Ohio St.3d 312, 2020-Ohio-4788, ¶ 8 (affidavit was
deficient because it did not identify the courts in which the cases were brought or the names
of all of the parties); Taylor v. Harris, 159 Ohio St.3d 564, 2020-Ohio-1046, ¶ 10 (although
inmate filed an affidavit listing the civil actions that he had filed in the previous five years,
the failure to provide its case name and the court in which it was brought, as well as other
deficiencies, rendered the petition fatally defective under R.C. 2969.25(A)); Bey at ¶ 9
(affidavit wholly deficient because it was missing the name of the opposing party in the
cases listed).
{¶ 25} It appears that relator attempted to comply with R.C. 2969.25(A)(4) by
indicating, "Respondent provided what was requested and Relator voluntarily dismissed
the action[,]" but this description is vague and, based upon a review of the actual case to
which relator is referring, inaccurate. See State ex rel. Nyamusevya v. Hawkins, 10th Dist.
No. 19AP-199, 2020-Ohio-2690, ¶ 33, citing Evid.R. 201(B) (the magistrate may take
judicial notice of the pleadings and orders in related cases when these are not subject to
reasonable dispute, at least insofar as they affect the present original action); Draughon v.
Jenkins, 4th Dist. No. 16CA3528, 2016-Ohio-5364, ¶ 26, citing State ex rel. Everhart v.
McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, ¶ 8, 10 (a court may take judicial notice of
pleadings that are readily accessible on the internet). In State ex rel. Battigaglia v. Kubilus,
5th Dist. No. 2020CA00125, 2020-Ohio-5015, relator did file an action in mandamus
requesting that a common pleas court judge issue a decision on his motion to vacate costs
and fines related to two previous cases; however, the trial court dismissed the action after
the judge subsequently issued a ruling denying the motion. Relator inaccurately described
No. 20AP-520 9
the outcome. He did not voluntarily dismiss the action. Therefore, dismissal is also
warranted based upon relator's failure to strictly comply with R.C. 2969.25(A)(4).
{¶ 26} Furthermore, given the above disposition, relator's motion for default
judgment, relator's motion to take judicial notice, and the bureau's alternative motion to
revoke or deny in forma pauperis status are denied.
{¶ 27} Accordingly, it is the magistrate's decision that, based upon relator's failure
to comply with the mandatory filing requirements of R.C. 2969.25(A), this court should
grant the bureau's motion to dismiss relator's complaint for writ of mandamus. The court
should also deny relator's motion for default judgment, relator's motion to take judicial
notice, and the bureau's alternative motion to revoke or deny in forma pauperis status.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).