Hogan v. Henderson ( 2023 )

[Cite as Hogan v. Henderson, 2023-Ohio-4680.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Tremain Hogan Court of Appeals No. L-23-1282
Petitioner
v.
Kim Henderson
DECISION AND JUDGMENT
Respondent
Decided: December 21, 2023
*****
Tremain Hogan, pro se.
*****
OSOWIK, J.
{¶ 1} In this original action, Relator, Tremain Hogan, has filed a petition seeking a
writ of habeas corpus ordering the respondent, Warden Kim Henderson, to release him
from the Toledo Correctional Institute, where he is incarcerated. Because relator’s
petition does not comply with the mandatory requirements of R.C. 2969.25, we dismiss
his case sua sponte.
I. The petition
{¶ 2} Attached to relator’s petition are two “Sanction Receipt and Prison Term
Orders” (“PRC No. 1” and “PRC No. 2”). They indicate that, following a “sentence of
confinement” in a state correctional institution, relator “was released to post-release
control on November 25, 2021 under the supervision of the Ohio Adult Parole
Authority.”
{¶ 3} According to PRC No. 1, relator was arrested on May 12, 2023—18 months
after his release—for violating the terms of his post-release control and placed on a
“hold” in the Montgomery County Jail. While incarcerated, relator allegedly committed
additional violation(s) of the terms of his post-release control. Following a hearing on
June 26, 2023, relator was found guilty and sanctioned to serve “a term of confinement
for up to 180 days to be served in MonDay CBCF,” a community-based correction
facility. Relator was further ordered to “successfully complete” programming there “on
or before 1/1/2024.”
{¶ 4} In his petition, relator alleges that he was “unsuccessfully terminated” from
the CBCF program. And, according to PRC No. 2, a hearing was held on October 4,
2023, after which relator was found to have violated the terms of his post-release control,
again, and ordered to serve 204 days in prison, effective October 5, 2023.
{¶ 5} In support of his request for a writ of habeas corpus, relator alleges that he
“was not properly notified” that he would receive additional prison time for failing to
complete CBCF. Relator alleges that he is being “illegally confined,” in violation of R.C.
2929.41(“Multiple sentences”) and 2967.28 (“Post-release control”).
II. Law and Analysis
{¶ 6} R.C. 2969.25 sets forth specific filing requirements for inmates who file a
civil action against a government employee or entity. “A case must be dismissed if the
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inmate fails to comply with the mandatory requirements of R.C. 2969.25 in the
commencement of the action.” State of Ohio ex rel. Cleavenger v. O’Brien, 9th Dist.
Summit No. 29723, 2020-Ohio-3010, ¶ 2, quoting State ex rel. Graham v. Findlay Mun.
Court, 106 Ohio St.3d 63, 2005-Ohio-3671, 831 N.E.2d 435, ¶ 6 (“The requirements of
R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate’s action
to dismissal.”). Here, because relator failed to comply with R.C. 2969.25, we dismiss his
petition, sua sponte.
{¶ 7} Pursuant to R.C. 2969.25(A), an inmate must “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.” As to “each of those”
cases, the affidavit “shall include” the following: a brief description of the nature of the
civil action or appeal; the case name, case number and the court in which the case was
brought; the name of each party to the case; and “the outcome of the civil action or
appeal * * * 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.”
{¶ 8} Relator’s petition includes an affidavit that identifies ten cases or appeals
filed by him in the last year five years.1 The list is inadequate in many respects. First,
although relator provided a “case name” for all ten cases, as required by
R.C.2969.25(A)(2), none of the cases identify “the name of each party to the civil action
1
Of the ten cases identified by Hogan, seven of them were filed after his arrest in
May of 2023 and pertain to his incarceration, including four petitions for a writ of habeas
corpus.
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or appeal,” as required by Section (A)(3). Next, although relator identifies four cases as
having been “dismissed,” he failed to provide “the date of the final order affirming the
dismissal,” in violation of R.C. 2969.25(A)(4). And, while relator provides a “bare
minimum” description of nine cases by, for example, describing a case as a “declaratory
judgment,” one case contains no description, in violation of R.C. 2969.25(A)(1). Any of
the deficiencies set forth above provide a sufficient basis to dismiss relator’s petition.
See, e.g., Rickard v. Buchanan, 7th Dist. Noble No. 14NO422, 2015-Ohio-1367, ¶ 28.
{¶ 9} Because Relator did not comply with the mandatory requirements of R.C.
2969.25, this case is dismissed. Costs are taxed to relator. 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.
Writ dismissed.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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