State ex rel. Johnson v. State ( 2022 )

[Cite as State ex rel. Johnson v. State, 2022-Ohio-1253.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State ex rel. Brandon Johnson, :
Relator, :
v. : No. 21AP-390
State of Ohio, (REGULAR CALENDAR)
Respondent.] :
D E C I S I O N
Rendered on April 14, 2022
On brief: Brandon Johnson, pro se.
IN PROCEDENDO
ON SUA SPONTE DISMISSAL
MENTEL, J.
{¶ 1} Relator, Brandon Johnson, brought this original action seeking a writ of
procedendo ordering respondent, a judge of the Franklin County Court of Common Pleas,
to rule on a motion for jail-time credit pending in his criminal case. Relator's complaint
alleges that "after nearly a year of delay," he reminded the judge of the pending motion
during a June 22, 2021 hearing. (Aug. 5, 2021 Compl. at 3.) We take judicial notice of the
fact that relator, represented by the Office of the Ohio Public Defender, filed the motion on
July 31, 2020, as well as the fact that the trial court has yet to rule on the motion. "A court
may take judicial notice of a document filed in another court 'not for the truth of the matters
asserted in the other litigation, but rather to establish the fact of such litigation and related
filings.' " Woods Cove III, LLC v. Straight, 10th Dist. No. 17AP-340, 2018-Ohio-2906, ¶ 22,
quoting State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, ¶ 20 (further
citations omitted). See also State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-
No. 21AP-390 2
Ohio-4798, ¶ 10 (holding that in an appeal of an original action, it was "appropriate" to
"take judicial notice" of a dismissal entry in another action by the court of appeals, although
not in the record before it, to decide whether dismissal of the action "was warranted").
{¶ 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 dismiss
relator's complaint for a writ of procedendo because he failed to file an affidavit disclosing
his litigation history pursuant to R.C. 2969.25(A), as well as an affidavit of indigency, as
required by R.C. 2969.25(C). (Dec. 3, 2021 Mag.'s Decision, App'x at 5-6.) The magistrate
also provided notice to the relator of the opportunity under Ohio Civil Rule 53(D)(3) to
object to the findings of fact and conclusions of law in the decision. Id. at 7.
{¶ 3} Relator 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 filed).
{¶ 4} We note that relator did file an affidavit of indigency with some information
about his indigent status. (Aug. 5, 2021 Aff. of Indigency.) However, the affidavit did not
contain either "[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" or "[a]
statement that sets forth all other cash and things of value owned by the inmate at that
time." R.C. 2969.25(C). Both disclosures are mandatory, as is the affidavit disclosing
relator's litigation history under R.C. 2969.25(A).
{¶ 5} For the foregoing reasons, we adopt the decision of the magistrate and
dismiss the complaint for a writ of procedendo.
Writ of procedendo dismissed.
KLATT and BEATTY BLUNT, JJ., concur.
_________________
No. 21AP-390 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State ex rel. Brandon Johnson, :
Relator, :
v. : No. 21AP-390
State of Ohio, : (REGULAR CALENDAR)
Respondent.] :
MAGISTRATE'S DECISION
Rendered on December 3, 2021
Brandon Johnson, pro se.
IN PROCEDENDO
ON SUA SPONTE DISMISSAL
{¶ 6} Relator, Brandon Johnson, seeks a writ of procedendo ordering the Franklin
County Court of Common Pleas judge currently presiding over case No. 03CR-5039 to rule
on relator's long-pending motion for jail-time credit in that case.
Findings of Fact:
{¶ 7} 1. Relator filed his complaint in procedendo with this court on August 5,
2021. The complaint avers that he invoked the trial court's continuing jurisdiction in his
criminal case under R.C. 2929.19(B)(2)(g)(iii) and filed his motion for jail-time credit on
July 31, 2020. The complaint further avers that the trial court has yet to rule on the motion.
{¶ 8} 2. Attached to relator's complaint is an affidavit of indigency indicating that
he is currently incarcerated at Marion Correctional Institution.
No. 21AP-390 4
{¶ 9} 3. Relator's complaint does not include an affidavit pursuant to
R.C. 2969.25(A) listing his prior civil actions, if any, nor does it contain an affidavit under
R.C. 2969.25(C) providing inmate account balances and other financial information in
connection with his affidavit of indigency.
{¶ 10} 4. Respondent has not filed a responsive pleading in this matter.
Discussion and Conclusions of Law:
{¶ 11} Inmates commencing a civil action or appeal in Ohio courts are subject to
certain filing requirements. R.C. 2969.25(A) states:
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
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.
{¶ 12} Thus, R.C. 2969.25(A) requires an inmate to file an affidavit listing each civil
action or appeal of a civil action he has filed in the previous five years in any state or federal
court, as well as information regarding the outcome. This court has noted that
" '[c]ompliance with R.C. 2969.25(A) is mandatory and failure to comply subjects an
inmate's action to dismissal.' " Arega v. Coleman, 10th Dist. No. 15AP-629, 2015-Ohio-
No. 21AP-390 5
5242, ¶ 11, quoting Morris v. Franklin Cty. Court of Common Pleas, 10th Dist. No. 05AP-
596, 2005-Ohio-6306, ¶ 6. Further, "the affidavit required by R.C. 2969.25(A) must be filed
at the time an inmate commences the civil action or appeal," and the "belated attempt to
file the required affidavit does not excuse noncompliance." State ex rel. Evans v. Ohio Adult
Parole Auth., 10th Dist. No. 10AP-730, 2011-Ohio-2871, ¶ 4.
{¶ 13} The filing requirements for inmate litigants seeking a waiver of filing fees are
clear pursuant to R.C. 2969.25(C), which states as follows:
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 the time.
{¶ 14} Again, the requirements of R.C. 2969.25(C) are mandatory, State ex. rel.
Alford v. Winters, 80 Ohio St.3d 285 (1997), and dismissal of a complaint is proper when
the requirements of R.C. 2969.25(C) are not met. Whiteside v. Ohio Adult Parole Auth.,
10th Dist. No. 05AP-1265, 2006-Ohio-3145, ¶ 11-12; Watley v. Coval, 10th Dist. No. 03AP-
829, 2004-Ohio-1734.
{¶ 15} Because relator's complaint does not furnish affidavits and documents in
compliance with either of these statutory requirements for inmate litigants, the magistrate
concludes that the court must as a matter of law dismiss relator's complaint for a writ of
procedendo.
/S/ MAGISTRATE
MARTIN L. DAVIS
No. 21AP-390 6
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).