State ex rel. McAfee v. Cocroft ( 2022 )

[Cite as State ex rel. McAfee v. Cocroft, 2022-Ohio-3335.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Rodney L. McAfee, :
Relator, : No. 21AP-489
v. : (REGULAR CALENDAR)
Judge Kimberly Cocroft, :
Respondent. :
D E C I S I O N
Rendered on September 22, 2022
On brief: Rodney L. McAfee, pro se.
On brief: G. Gary Tyack, Prosecuting Attorney, and
Thomas W. Ellis, for respondent.
IN MANDAMUS AND/OR PROCEDENDO
ON RESPONDENTS' MOTION TO DISMISS
MENTEL, J.
{¶ 1} Relator, Rodney L. McAfee, brought this original action seeking a writ of
mandamus and/or procedendo ordering respondent, Judge Kimberly Cocroft of the
Franklin County Court of Common Pleas, to appoint appellate counsel for him. Respondent
has filed a motion to dismiss the action, arguing that this court lacks jurisdiction because
Mr. McAfee failed to file the affidavit required by R.C. 2969.25 disclosing all civil actions he
has filed in the past five years.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate. The magistrate recommends that we grant the
motion.
No. 21AP-489 2
{¶ 3} Mr. McAfee filed no objection to the magistrate's decision. "If no timely
objections are filed, the court may adopt a magistrate's decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate's decision."
Civ.R. 53(D)(4)(c). Our review of the magistrate's decision reveals no error of law or other
evident defect. See, e.g., State ex rel. Alleyne v. Indus. Comm., 10th Dist. No. 03AP-811,
2004-Ohio-4223 (adopting the magistrate's decision where no objections were filed). We
agree with the magistrate's conclusion that Mr. McAfee's failure to file the affidavit
mandated by R.C. 2969.25 requires dismissal of this action. Accordingly, we adopt the
decision of the magistrate, grant respondent's motion, and dismiss the complaint for lack
of jurisdiction.
Motion granted; complaint dismissed.
BEATTY BLUNT and JAMISON, JJ., concur.
_________________
No. 21AP-489 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State ex rel. Rodney L. McAfee, :
Relator, :
v. : No. 21AP-489
Judge Kimberly Cocroft, : (REGULAR CALENDAR)
Respondent.] :
MAGISTRATE'S DECISION
Rendered on February 24, 2022
Rodney L. McAfee, pro se.
G. Gary Tyack, Prosecuting Attorney, Thomas W. Ellis, for
respondent.
IN MANDAMUS AND/OR PROCEDENDO
ON RESPONDENT'S MOTION TO DISMISS
{¶ 4} Relator, Rodney L. McAfee, has filed this original action requesting that this
court issue a writ of mandamus and/or procedendo ordering respondent, Judge Kimberly
Cocroft, to compel respondent to appoint relator appellate counsel. Respondent has filed
an October 26, 2021, motion to dismiss.
No. 21AP-489 4
Findings of Fact:
{¶ 5} 1. Relator is an inmate incarcerated at Lorain Correctional Institution.
{¶ 6} 2. Respondent is a judge in the Franklin County Court of Common Pleas.
{¶ 7} 3. On September 30, 2021, relator filed the instant mandamus and/or
procedendo action asking this court to order respondent to appoint relator appellate
counsel in Franklin C.P. No. 17CR-5750, over which respondent presided.
{¶ 8} 4. At the time relator filed this mandamus action, he did not file an affidavit
of prior actions as required by R.C. 2969.25(A).
{¶ 9} 5. On October 26, 2021, respondent filed a motion to dismiss pursuant to
Civ.R. 12(B)(6) based upon relator's failure to comply with R.C. 2969.25(A).
Conclusions of Law:
{¶ 10} The magistrate recommends that this court grant respondent's motion to
dismiss this action because relator has failed to comply with the requirements of
R.C. 2969.25(A).
{¶ 11} 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 v. Yost, 10th Dist. No. 19AP-124, 2020-Ohio-551, ¶ 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.
{¶ 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. 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
No. 21AP-489 5
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;
(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).
{¶ 13} 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.
{¶ 14} In the present case, relator failed to file an affidavit as required by
R.C. 2969.25(A).
{¶ 15} 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 respondent's motion to dismiss relator's complaint for writ of mandamus and/or
procedendo.
No. 21AP-489 6
/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).