State ex rel. Davenport v. State , 2015 Ohio 3572 ( 2015 )

[Cite as State ex rel. Davenport v. State, 2015-Ohio-3572.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State ex rel. Carlos Davenport, :
Relator, :
v. : No. 14AP-1043
The State of Ohio, : (REGULAR CALENDAR)
Respondent.] :
D E C I S I O N
Rendered on September 1, 2015
Carlos Davenport, pro se.
Ron O'Brien, Prosecuting Attorney, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.
{¶ 1} Carlos Davenport filed this action in mandamus, seeking a writ to compel
the State of Ohio to appoint a special prosecutor to investigate activities in his criminal
case.
{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The magistrate, after
reviewing the file, issued a magistrate's decision, appended hereto, which recommended
that the case be dismissed because Davenport has not complied with R.C. 2969.25 which
requires among other things that inmates submit an affidavit which lists civil cases filed
by the inmate during the previous five years. Case law from the Supreme Court of Ohio
indicates that failure to comply with R.C. 2969.25 cannot be cured by a delayed filing of
the required affidavit.
No. 14AP-1043 2
{¶ 3} Davenport has filed objections to the magistrate's decision, acknowledging
that he did not comply with R.C. 2969.25, but arguing that our magistrate could have
used subpoenas to obtain the information required by R.C. 2969.25. Davenport also
notes how hard it is for an inmate to comply with the statute.
{¶ 4} The Ohio Legislature enacted R.C. 2969.25 in an effort to address a problem
the Ohio courts were having with inmates filing frivolous lawsuits. The statute is rigorous
and must be strictly followed. We are required to follow the statute and the Supreme
Court of Ohio's interpretation of law as to how the statute is to be applied.
{¶ 5} We overrule Davenport's objections to the magistrate's decision. We,
therefore, adopt the findings of fact and conclusions of law contained in the magistrate's
decision. As a result, we dismiss the lawsuit.
Objections overruled; case dismissed.
KLATT and HORTON, JJ., concur.
No. 14AP-1043 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State ex rel. Carlos Davenport, :
Relator, :
v. : No. 14AP-1043
The State of Ohio, : (REGULAR CALENDAR)
Respondent.] :
MAGISTRATE'S DECISION
Rendered on May 18, 2015
Carlos Davenport, pro se.
Ron O'Brien, Prosecuting Attorney, for respondent.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
{¶ 6} Relator, Carlos Davenport, has filed this original action requesting a writ of
mandamus ordering the appointment of a special prosecutor to investigate activities he
alleges occurred during the proceedings in a criminal case in which he is the named
defendant.
Findings of Fact:
{¶ 7} 1. Relator is an inmate currently incarcerated at Ross Correctional
Institution.
No. 14AP-1043 4
{¶ 8} 2. On December 17, 2014, relator filed this original action against a
government entity or employee.
{¶ 9} 3. At the time he filed this complaint, relator did not file the affidavit
required by R.C. 2969.25(A) requiring that he list any prior civil actions or appeals that he
may have filed.
{¶ 10} 4. At the time he filed his complaint, relator did file an affidavit of
indigency; however, relator has not filed a statement of the amount in his inmate account
for the preceding six months as certified by the institutional cashier pursuant to R.C.
2969.25(C).
Conclusions of Law:
{¶ 11} The magistrate recommends that the present action be dismissed. First,
relator has not paid filing fees, nor has he fulfilled the requirements in R.C. 2969.25 for
payment of fees from his inmate account in installments. In addition, relator has not
complied with other requirements of R.C. 2969.25.
{¶ 12} 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, providing specific information
regarding each civil action or appeal. In the present action, relator has not filed the
required affidavit.
{¶ 13} In regard to filing fees, R.C. 2969.25(C) and 2969.22 distinguish 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 the
grounds of indigency must file an affidavit that includes: (1) a statement of the amount in
his inmate 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.
{¶ 14} 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
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 $10) is forwarded to the clerk each month until the fees are paid.
No. 14AP-1043 5
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).
{¶ 15} In the present action, relator has not filed the required affidavit regarding
his other civil actions, if any. Nor has relator filed a cashier's statement which complies
with the requirements of R.C. 2969.25(C). Because relator cannot cure these deficiencies
at a later date, dismissal of the complaint is warranted.
{¶ 16} The magistrate, accordingly, recommends that the court dismiss the action.
/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).
No. 14AP-1043 6