State ex rel. Hunt v. Ohio Adult Parole Auth. ( 2020 )

[Cite as State ex rel. Hunt v. Ohio Adult Parole Auth., 2020-Ohio-3261.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ricky Lee Hunt, :
Relator, :
v. : No. 20AP-35
Ohio Adult Parole Authority et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on June 9, 2020
On brief: Ricky Lee Hunt, pro se.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator, Ricky Lee Hunt, filed this mandamus action requesting this court to
issue a writ of mandamus ordering respondent, Ohio Adult Parole Authority ("OAPA"), to
reconsider his parole eligibility.
{¶ 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 who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate recommends this court
sua sponte dismiss relator's request for a writ of mandamus.
{¶ 3} Relator has filed the following objections to the magistrate's decision:
Relator specifically objects to the Magistrates factual findings
and legal conclusion to wit: That Relator Hunt, failed to
provide a certified statement of the amount in his inmate
account for each of the preceding six months prior to the filing
of his petition for Writ of Mandamus, and; that he failed to
provide a certified statement of all other cash and things of
value owned by Mr. Hunt.
No. 20AP-35 2
{¶ 4} R.C. 2969.25(C) requires:
If an inmate who files a civil action or appeal against a
government entity or employee seeks a waiver of the
prepayment of the full filing fees assessed by the court in
which the action or appeal is filed, the inmate shall file with
the complaint or notice of appeal an affidavit that the inmate
is seeking a waiver of the prepayment of the court's full filing
fees and an affidavit of indigency. The affidavit of waiver and
the affidavit of indigency shall contain all of the following:
(1) 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;
(2) A statement that sets forth all other cash and things of
value owned by the inmate at that time.
{¶ 5} The magistrate found that "[a]lthough relator indicated that he was going to
attach a certified statement of the amount in his inmate account for each of the preceding
six months, relator failed to do so." (Appended Mag. Decision at ¶ 15.) Relator objects to
this finding.
{¶ 6} Our review of the record reveals that relator did indeed attach to his
complaint, and file the same day as his complaint, a document titled "Inmate Demand
Statement" which reveals the balance in his account for each of the preceding six months
prior to filing his complaint. The date range indicated on the inmate demand statement is
"06/17/2019 Through 12/18/2019." The complaint was filed January 14, 2020. At the
upper right corner of the inmate demand statement is a stamped certification and a
signature which reads: " 'I certify this document is a true and accurate account of the
inmate's financial record on file in my office.' /s Rose West 12.17.19 account clerk cashier's
office." As relevant here, relator also filed with his complaint two affidavits. The affidavit
of indigency states:
I, Ricky Hunt, 159626, having been first duly sworn And
cautioned as to the penalties for perjury, hereby deposes and
says the following:
1. That I am incarcerated at the North Central Correctional
Complex (NCCC), 670 Marion-Williamsport Road East,
Marion [Marion County], Ohio 43301, pursuant to the
No. 20AP-35 3
conviction and sentence imposed upon me by the Court of
Common Pleas of Summit County, Ohio;
2. That I earn $20.00 monthly from my prison employment;
3. That as a result of this incarceration, I have no money to pay
for representation or secure costs in this matter;
4. That I have no bank accounts, bonds, real property or
equity therein which to satisfy the costs of maintaining this
action;
5. That I am a true pauper according to the laws of the State of
Ohio and of the United States of America;
6. And further, Ricky Hunt, 159626, Affiant herein, says not.
(Emphasis added.)
{¶ 7} The affidavit for waiver of prepayment of the court's full filing fee or costs
states:
I, Ricky Lee Hunt, am the Petitioner in the above captioned
Civil Action for Writ of Mandamus, and declare under penalty
of perjury that I am unable to pay the full filing fee and costs of
these proceedings and that I am entitled as a matter of law to
the relief requested in [t]his petition.
In support of this affidavit, I declare under the penalty of
perjury that:
1.) That I am an inmate incarcerated at the North Central
Correctional Complex located at Marion, Ohio.
2.) I have attached to this affidavit a certified Inmate Demand
Statement by the institutional cashier, Rose West, showing all
receipts, expenditures and balances for the past six (6) month
period beginning in June 2019 and ending in December 2019.
3.) That I earn $20.00 per month from my institutional job
assignment as a porter.
4.) That in the past 12 months I have occasionally received
small monetary gifts from a friend in various amounts. Please
see Inmate demand Statement.
No. 20AP-35 4
5.) That I do not receive any other income from any other
source and do not expect to receive any income from any
source in the future.
6.) That I do not own any assets of value; and
7.) That I have in my institutional account at this time $19.08.
Further, the Affiant sayeth naught.
(Emphasis added.)
{¶ 8} At paragraph 4 of the affidavit, relator refers to the inmate demand
statement. The inmate demand statement includes the following entries which appear to
reveal the "small monetary gifts from a friend in various amounts:"
Inmate Demand Statement
"I certify this document is a true and accurate account of the
inmates financial record on file in my office" Rose West
12.17.19 Account Clerk.
***
Date Range: 06/17/2019 Through 12/18/2019
***
07/18/2019 $40.00 OffConnect Kiosk Deposit [77820] /
burgess, kathy
***
08/14/2019 $50.00 JPay MoneyOrders [10456] / Harris,
Laverne
08/15/2019 $40.00 OffConnect Kiosk Deposit [78142] /
burgess, kathy
***
09/01/2019 $50.00 OffConnect Kiosk Deposit [78446] /
burgess, kathy
***
No. 20AP-35 5
09/22/2019 $100.00 OffConnect Kiosk Deposit [78755] /
burgess, kathy
***
11/05/2019 $40.00 OffConnect Kiosk Deposit [79129] /
burgess, kathy
***
12/03/2019 $50.00 OffConnect Kiosk Deposit [79549] /
burgess, kathy
***
12/10/2019 $40.00 OffConnect Kiosk Deposit [79627] /
burgess, kathy
***
12/11/2019 $50.00 JPay MoneyOrders [10938] / Harris,
Laverne
***
Earned Prisoner Compensation EPC Funds * * * $140.50
(Emphasis omitted.)
{¶ 9} Taking all this into consideration, we sustain relator's objections to the
magistrate's decision and find that relator has complied with the requirements of R.C.
2969.25(C). We do not adopt the magistrate's recommendation to sua sponte dismiss this
complaint on the grounds outlined by the magistrate for non-compliance with R.C.
2969.25(C).
{¶ 10} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objections, we do not find the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
sustain relator's objections to the magistrate's decision. We do not adopt the magistrate's
decision as our own. Rather, we enter the findings of fact and apply the law as indicated
No. 20AP-35 6
herein. Accordingly, we remand this case to the magistrate to permit respondent to file
motions, if any, and/or answers to the complaint and for further consideration of the same.
Objections sustained;
action remanded to the magistrate.
SADLER, P.J., and BEATTY BLUNT, J., concur.
No. 20AP-35 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ricky Lee Hunt, :
Relator, :
v. : No. 20AP-35
Ohio Adult Parole Authority et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on January 28, 2020
Ricky Lee Hunt, pro se.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
{¶ 11} Relator, Ricky Lee Hunt, has filed this original action requesting this court
issue a writ of mandamus ordering respondent the Ohio Adult Parole Authority ("OAPA")
to reconsider his eligibility for parole.
Findings of Fact:
{¶ 12} 1. Relator is an inmate currently incarcerated at North Central Correctional
Complex.
{¶ 13} 2. Relator filed this mandamus action on January 14, 2020.
{¶ 14} 3. At the time he filed this mandamus action, relator filed an affidavit of
indigency wherein he indicated that he earns $20 per month from his prison employment.
No. 20AP-35 8
{¶ 15} 4. At the time he filed this mandamus action, relator also filed an affidavit for
the waiver of prepayment of court costs. In that affidavit, relator indicated that he currently
had $19.08 in his inmate account and further that, in the past 12 months he occasionally
received small monetary gifts from a friend. Although relator indicated that he was going
to attach a certified statement of the amount in his inmate account for each of the preceding
six months, relator failed to do so.
Conclusions of Law:
{¶ 16} 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).
{¶ 17} 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 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.
{¶ 18} 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).
{¶ 19} 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
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. 20AP-35 9
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.
Id. at ¶ 5-7.
{¶ 20} 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.
{¶ 21} In affirming the judgment of the appellate court, the Supreme Court stated:
"The requirements of R.C. 2969.25 are 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.
{¶ 22} Pursuant to the above-cited authority and because relator cannot cure this
deficiency now or at a later date, it is the magistrate's decision that this court should dismiss
relator's complaint. Further, pursuant to the above-cited authority, inasmuch as relator did
No. 20AP-35 10
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).