State ex rel. Foster v. Foley , 2022 Ohio 35 ( 2022 )

[Cite as State ex rel. Foster v. Foley, 2022-Ohio-35.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO EX REL. EZRA C.
FOSTER
C.A. No. 21CA011812
Petitioner
v.
ORIGINAL ACTION IN
KEITH FOLEY, WARDEN HABEAS CORPUS
Respondent
Dated: January 10, 2022
PER CURIAM.
{¶1} Petitioner Ezra Foster has filed a petition for writ of habeas corpus asking this
Court to order Respondent Keith Foley, Warden of Grafton Correctional Institution, to release
him from prison. Because Mr. Foster’s petition does not comply with the mandatory filing
requirements of R.C. 2969.25, and the requirements of R.C. 2725.04, this Court must dismiss
this action.
Mandatory filing requirements
{¶2} R.C. 2969.25 sets forth specific filing requirements for inmates who file a civil
action against a government employee or entity. Warden Foley is a government employee and
Mr. Foster, incarcerated in the Grafton Correctional Institution, is an inmate. R.C. 2969.21(C)
and (D). A case must be dismissed if the inmate fails to comply with the mandatory requirements
of R.C. 2969.25 in the commencement of the action. State ex rel. Graham v. Findlay Mun. Court,
C.A. No. 21CA011812
Page 2 of 4
106 Ohio St.3d 63, 2005-Ohio-3671, ¶ 6 (“The requirements of R.C. 2969.25 are mandatory, and
failure to comply with them subjects an inmate’s action to dismissal.”).
{¶3} Mr. Foster did not pay the cost deposit for filing this action. He did file with his
petition an affidavit of prior actions and waiver of prepayment pursuant to R.C. 2969.25. R.C.
2969.25(C) applies when an inmate seeks a waiver of the prepayment of the filing fees, as Mr.
Foster did here. This section requires the inmate to file an affidavit of indigency. The affidavit
must include, among other things, “[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[.]”
(Emphasis added) R.C. 2969.25(C)(1). Mr. Foster included the form affidavit of indigency and
statement of inmate account. That statement does not show the balance for each of the preceding
six months, as required by R.C. 2969.25. Instead, the statement covers the period from March
through August, but Mr. Foster did not file his complaint until November.
{¶4} As noted above, the requirements of R.C. 2969.25 are mandatory. Boles v. Knab,
129 Ohio St.3d 222, 2011-Ohio-2859, ¶ 1. The Supreme Court has “consistently held that ‘“[t]he
requirements of R.C. 2969.25 are mandatory and failure to comply with them requires dismissal
of an inmate’s complaint.”’” (citations omitted) State ex rel. Sands v. Culotta, 158 Ohio St.3d
238, 2019-Ohio-4741, ¶ 8. The Supreme Court has upheld the dismissal of an inmate’s action
where the inmate statement covered a period ending in October, but the complaint was not filed
until several months later. Russell v. Duffey, 142 Ohio St.3d 320, 2015-Ohio-1358, ¶ 12. Like
the inmate in Russell, Mr. Foster’s statement of his inmate account covered the period ending in
August, but he did not file his complaint until November. Therefore, Mr. Foster failed to comply
with the mandatory requirements of R.C. 2969.25(C), requiring dismissal of this action.
C.A. No. 21CA011812
Page 3 of 4
Statutory Habeas Corpus requirements
{¶5} Mr. Foster also failed to comply with the statutory requirements for filing a
petition for habeas corpus. R.C. 2725.04 imposes requirements on a petition for habeas corpus,
including that the commitment papers be attached and that the petition be verified. In this case,
we focus on the verification requirement.
{¶6} The Ohio Supreme Court has held that a petition filed without any verification
must be dismissed. Chari v. Vore, 91 Ohio St.3d 323, 328 (2001). “Verification” means a
“formal declaration made in the presence of an authorized officer, such as a notary public, by
which one swears to the truth of the statements in the document.” Id. at 327. To meet the
verification requirement, Mr. Foster must have expressly sworn to the truth of the facts contained
in the petition. Id. at 328.
{¶7} Here, however, Mr. Foster simply signed the petition. This does not rise to the
level of a “formal act or presence calculated to bring to bear upon the declarant’s conscience the
full meaning of what he does.” Id. at 327, citing Youngstown Steel Door Co. v. Kosydar, 33 Ohio
App.2d 277 (8th Dist.1973). Mr. Foster did not make a formal declaration by which he swore to
the truth of the statements in the document. See Watkins v. Collins, 111 Ohio St.3d 425, 2006-
Ohio-5082, ¶ 35. Because the petition is not verified, it is defective and must be dismissed.
Conclusion
{¶8} Because Mr. Foster did not comply with the mandatory requirements of R.C.
2969.25, or the requirements of R.C. 2725.04, this case is dismissed. Costs are taxed to Mr.
C.A. No. 21CA011812
Page 4 of 4
Foster. The clerk of courts is hereby directed to serve upon all parties not in default notice of
this judgment and its date of entry upon the journal. See Civ.R. 58.
DONNA J. CARR
FOR THE COURT
CALLAHAN, J.
SUTTON, J.
CONCUR.
APPEARANCES:
EZRA C. FOSTER, Pro se, Petitioner.