State ex rel. Anderson v. Sheeran ( 2019 )

[Cite as State ex rel. Anderson v. Sheeran, 2019-Ohio-600.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Kim Anderson, :
Relator, :
v. : No. 18AP-613
Judge Patrick E. Sheeran, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on February 19, 2019
Kim Anderson, pro se.
Ron O'Brien, Franklin County Prosecuting Attorney, and
Bryan B. Lee, for respondent.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
BRUNNER, J.
{¶ 1} Relator, Kim Anderson, an inmate of the Marion Correctional Institution
("MCI"), commenced this original action requesting a writ of mandamus ordering
respondent, Judge Patrick E. Sheeran, trial court judge of the Franklin County Court of
Common Pleas, to modify the amount of restitution he is ordered to pay, to order his
immediate release from incarceration, and to order the money removed from his inmate
account be reimbursed. For the reasons that follow, we adopt the magistrate's decision and
sua sponte dismiss this action.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Anderson filed his complaint in mandamus on August 13, 2018. At the time
Anderson filed this action, he submitted an affidavit of indigency and attached a certified
statement of MCI's cashier setting forth the balance in his inmate account for the period of
November 1, 2017 through May 10, 2018. On August 24, 2018, Judge Sheeran filed a
No. 18AP-613 2
motion to dismiss this action pursuant to Civ.R. 12(B)(6) for failure to state a claim upon
which relief can be granted. On September 28, 2018, Anderson filed a motion for leave to
reply to the motion to dismiss.
{¶ 3} This Court referred this matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. On September 27, 2018, the magistrate
issued a decision, including findings of fact and conclusions of law. The magistrate
concluded the inmate account statement Anderson had filed failed to satisfy the mandatory
filing requirements of R.C. 2969.25(C), which requires a statement setting forth the balance
in Anderson's inmate account for each of the six months preceding the filing of his
complaint. The magistrate concluded Anderson had failed to satisfy the mandatory filing
requirements of R.C. 2969.25(C)(1) and recommended sua sponte dismissal of this action.
The magistrate further recommended that, inasmuch as Anderson did not prevail and did
not establish indigency, this Court should order him to pay the costs of the proceedings.
{¶ 4} On October 2, 2018, the magistrate issued an order denying as moot Judge
Sheeran's August 24, 2018 motion to dismiss and Anderson's September 28, 2018 motion
for leave to file a reply to Judge Sheeran's motion to dismiss.
{¶ 5} Anderson filed no objections to the magistrate's decision.
II. LAW AND DISCUSSION
{¶ 6} It is well-settled that compliance with the requirements of R.C. 2969.25 is
mandatory and cannot be cured after the fact. State ex rel. Hall v. Mohr, 140 Ohio St.3d
297, 2014-Ohio-3735, ¶ 4. Failure to comply fully with R.C. 2969.25(C)(1) warrants
dismissal of the complaint. State ex rel. Pamer v. Collier, 108 Ohio Std.3d 492, 2006-Ohio-
1507, ¶ 5.
{¶ 7} While Anderson did provide an affidavit of indigency and a certified cashier
statement of his inmate account, the statement does not set forth the account balance for
each of the six months preceding the filing of this action, as required by the statute.
Specifically, the cashier statement covers only through May 10, 2018, while Anderson filed
his petition in August 2018. This renders his petition fatally defective. "When the
petitioner's cashier statement does not set forth the account balance for the month
immediately preceding [petitioner's] mandamus complaint, his failure to comply with R.C.
2969.25(C)(1) warrants dismissal of the complaint." Al'Shahid v. Cook, 144 Ohio St.3d 15,
No. 18AP-613 3
2015-Ohio-2079, ¶ 10, citing State ex rel. Pamer at ¶ 5, citing State ex rel. Foster v. Belmont
Cty. Court of Common Pleas, 107 Ohio St.3d 195, 2005-Ohio-6184, ¶ 5.
{¶ 8} Anderson failed to comply with the mandatory requirements of R.C.
2969.25(C)(1), and his petition for a writ of mandamus warrants dismissal.
III. CONCLUSION
{¶ 9} Finding no error of law or other defect on the face of the magistrate's decision,
we adopt the decision as our own, including the findings of fact and conclusions of law
contained therein. On review of the magistrate's decision, an independent review of the
record and the applicable law, we dismiss this action sua sponte. Inasmuch as Anderson
did not prevail and did not establish indigency, this Court orders him to pay the costs of the
proceedings.
Petition for writ of mandamus dismissed;
respondent's motion to dismiss moot;
relator's motion to file a reply to motion to dismiss moot.
KLATT, P.J., and McGRATH, J., concur.
McGRATH, J., retired, formerly of the Tenth Appellate District,
assigned to active duty under authority of the
Ohio Constitution, Article IV, Section 6(C).
____________________
No. 18AP-613 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Kim Anderson, :
Relator, :
v. : No. 18AP-613
Judge Patrick E. Sheeran, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on September 27, 2018
Kim Anderson, pro se.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
{¶ 10} Relator, Kim Anderson, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Patrick E. Sheeran, trial court judge of the
Franklin County Court of Common Pleas, to modify the amount of restitution he is ordered
to pay, order his immediate release from incarceration, and order that money removed
from his inmate account be reimbursed.
Findings of Fact:
{¶ 11} 1. Relator is an inmate currently incarcerated at Marion Correctional
Institution. On August 13, 2018, relator filed the instant mandamus action.
{¶ 12} 2. At the time he filed this mandamus action, relator submitted an affidavit
of indigency and attached a certified copy which includes the amount in his inmate account
for the months November 1, 2017 through May 10, 2018.
No. 18AP-613 5
Conclusions of Law:
{¶ 13} The magistrate recommends that this court sua sponte dismiss this action
because relator has failed to comply with the requirements of R.C. 2969.25(C).
{¶ 14} In regard to filing fees, R.C. 2969.25(C) and 2969.22distinguish between
paying the full amount of filing fees upon filing (referred to as "prepayment" of fees) and
paying the fees pursuant to periodic deductions from the inmate's account maintained by
the prison.1 Under R.C. 2969.25(C), an inmate who seeks waiver of prepayment on grounds
of indigency must file 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.
{¶ 15} 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. 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); State ex rel. Alford v. Winters, 80 Ohio St.3d
285 (1997).
{¶ 16} In State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, the
Supreme Court of Ohio affirmed the judgment of the court of appeals from Medina County
which had dismissed the complaint of George D. Pamer, an inmate at Mansfield
Correctional Institution, for his failure to comply with the requirements of R.C. 2969.25(C).
Specifically, the court stated:
Pamer's cashier statement did not set forth the account balance
for the month immediately preceding his mandamus
complaint - August 2005. See R.C. 2969.25(C)(1), which
requires an inmate filing a civil action against a government
employee seeking waiver of prepayment of court filing fees to
file a "statement that sets forth the balance in the inmate
account for each of the preceding six months, as certified by the
institutional cashier." Pamer's failure to comply with R.C.
2969.25(C)(1) warranted dismissal of the complaint. State ex
rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio
St.3d 195, 2005-Ohio-6184, 837 N.E.2d 777, ¶ 5.
1Under the statute, when the inmate has submitted the requisite affidavit of indigency, the clerk charges the
inmate's account for funds in excess of ten dollars. Following that payment, all income in the inmate's account
(excluding the ten dollars) is forwarded to the clerk each month until the fees are paid.
No. 18AP-613 6
In addition, nothing in R.C. 2969.25required the court of
appeals to afford Pamer the opportunity to pay the requisite
filing fee before dismissing the case when Pamer expressly
requested waiver of prepayment of those fees.
Finally, because Pamer did not prevail and did not establish his
indigency, the court of appeals did not abuse its discretion in
ordering him to pay the costs of the proceeding. See State ex
rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750 N.E.2d
164; Civ.R. 54(D).
Id. at ¶ 5-7.
{¶ 17} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-
Ohio-854, the Supreme Court affirmed the judgment of the Ross County Court of Appeals
which had dismissed the complaint filed by William L. Ridenour because of his failure to
comply with R.C. 2969.25(C). In that case, Ridenour had filed a motion for reconsideration
attaching a statement setting forth his inmate account balance for the six months preceding
the filing of his complaint; however, the statement was not certified by the institutional
cashier.
{¶ 18} In affirming the judgment of the appellate court, the Supreme Court stated:
"The requirements of R.C. 2969.25are mandatory, and failure
to comply with them subjects an inmate's action to dismissal."
State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-
2262, 788 N.E.2d 634, ¶ 5. Ridenour failed to comply with
R.C. 2969.25(C)(1), which requires an inmate filing a civil
action against a government employee seeking waiver of
prepayment of court filing fees to file with the complaint a
"statement that sets forth the balance in the inmate account
of the inmate for each of the preceding six months, as certified
by the institutional cashier."
Moreover, although Ridenour claims that the court erred in
failing to grant him leave to amend his complaint to comply
with R.C. 2969.25(C)(1), he never filed a motion to amend his
complaint. Instead, he filed a motion for reconsideration,
which was "a nullity because his mandamus action was filed
originally in the court of appeals, rendering App.R. 26(A)
inapplicable." State ex rel. Washington v. Crush, 106 Ohio
St.3d 60, 2005-Ohio-3675, 831 N.E.2d 432, ¶ 5.
Id. at ¶ 5-6.
No. 18AP-613 7
{¶ 19} Just as Pamer's cashier statement did not set forth the account balance for
the month immediately preceding the filing of his mandamus complaint, relator's cashier's
statement here does not set forth the account balance for the two months immediately
preceding the filing of his mandamus complaint: August 2018. Because the requirements
of R.C. 2969.25are mandatory, relator's failure to comply with R.C. 2969.25(C) subjects his
action to dismissal. Further, pursuant to the above-cited authority, inasmuch as relator did
not prevail and did not establish indigency, this court should order relator to pay the costs
of the proceedings.
/S/ MAGISTRATE
STEPHANIE BISCA
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).