State ex rel. Evans v. McGrath (Slip Opinion) , 2017 Ohio 8290 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Evans v. McGrath, Slip Opinion No. 2017-Ohio-8290.]
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SLIP OPINION NO. 2017-OHIO-8290THE STATE EX REL. EVANS, APPELLANT, v. MCGRATH, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Evans v. McGrath, Slip Opinion No.
2017-Ohio-8290.]
Prohibition—R.C. 2969.25(C)(1)—Failure to document balance of inmate account
for six months preceding filing of petition—Court of appeals’ dismissal of
petition affirmed.
(No. 2016-1911—Submitted June 20, 2017—Decided October 25, 2017.)
APPEAL from the Court of Appeals for Franklin County,
No. 16AP-238, 2016-Ohio-8348.
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Per Curiam.
{¶ 1} We affirm the judgment of the Tenth District Court of Appeals
dismissing the petition of appellant, William H. Evans Jr., for a writ of prohibition
against appellee, Court of Claims Judge Patrick M. McGrath.
SUPREME COURT OF OHIO
{¶ 2} Evans, an inmate at Ross Correctional Institution, filed a negligence
action against the Ohio Department of Rehabilitation and Correction in 2014.
Judge McGrath dismissed the action, but the appellate court reversed the judgment
and remanded the cause for further proceedings. Evans v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 15AP-463, 2015-Ohio-3492, ¶ 12, 17. On remand,
Judge McGrath denied Evans’s motion for summary judgment.
{¶ 3} On March 30, 2016, Evans filed a petition for a writ of prohibition in
the Tenth District Court of Appeals, arguing that Judge McGrath lacked jurisdiction
to deny his summary-judgment motion. According to Evans, Judge McGrath is
“holding proceedings which are barred by ‘law of the case,’ ‘res judicata,’ and the
‘mandate rule.’ ”
{¶ 4} On December 22, 2016, the court of appeals dismissed Evans’s
petition for noncompliance with the mandatory filing requirements of R.C.
2969.25(C)(1). Evans appealed.
{¶ 5} Under R.C. 2969.25(C)(1), an inmate who moves to waive payment
of filing fees when filing a petition for a writ in the court of appeals, as here, must
file with his or her petition “[a] statement that sets forth the balance in the inmate
account of the inmate for each of the preceding sixth months, as certified by the
institutional cashier.” This court has long held that this requirement is “mandatory,
and failure to comply * * * 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.
{¶ 6} Evans concedes that his filing is not in compliance with R.C.
2969.25(C)(1), but he offers several reasons why we should reverse the Tenth
District’s dismissal of his petition. First, he argues that R.C. 2969.25(C)(1) does
not require strict compliance and that interpreting it as mandatory is
unconstitutional. But he has failed to rebut the presumed constitutionality of the
statute, and we have previously rejected a similar argument raised by another
inmate. See Boles v. Knab, 129 Ohio St. 3d 222, 2011-Ohio-2859, 951 N.E.2d 389,
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January Term, 2017
¶ 3; see also Cleveland v. State, 128 Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d
370, ¶ 6 (statutes are presumed constitutional and will not be invalidated unless the
challenger establishes that the legislation is unconstitutional beyond a reasonable
doubt).
{¶ 7} Second, Evans argues that he should be given an opportunity to cure
the defect. But noncompliance with R.C. 2969.25(C)(1) cannot be cured by
amendment after a petition is filed. State ex rel. Jackson v. Calabrese, 143 Ohio
St.3d 409, 2015-Ohio-2918, 38 N.E.3d 880, ¶ 5. And “[p]ro se litigants are not
afforded greater rights than parties who retain counsel” or entitled to a court’s
assistance “in remedying deficient pleadings.” Prewitt v. Wood Cty. Prosecutor’s
Office, 6th Dist. Wood No. WD-15-029, 2016-Ohio-1477, ¶ 5.
{¶ 8} Finally, Evans argues that an internal prison policy—the cashier
allegedly “will not send the 6-month statement to the inmate”—excuses his
noncompliance. But as we have previously explained, a prisoner can forward his
petition and other documents to the prison cashier so the cashier can mail all
pertinent documentation to the court clerk. Boles at ¶ 4. Indeed, Evans’s own brief
suggests that he has already done just that, refiling his petition in the Tenth District
with the appropriate documentation. Thus, the alleged prison policy did not prevent
Evans from complying with R.C. 2969.25(C)(1).
{¶ 9} For these reasons, we affirm the judgment of the court of appeals
dismissing Evans’s prohibition petition. We also deny Evans’s “motion for this
court to determine the entire matter * * * on merits.”
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
O’NEILL, J., dissents for the reasons set forth in his dissenting opinion in
Robinson v. Miller, 148 Ohio St.3d 429, 2016-Ohio-7828, 71 N.E.3d 255.
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SUPREME COURT OF OHIO
William H. Evans Jr., pro se.
Michael DeWine, Attorney General, and Bridget C. Coontz, Assistant
Attorney General, for appellee.
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