State ex rel. Bey v. Bur. of Sentence Computation (Slip Opinion) , 2022 Ohio 236 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Bey v. Bur. of Sentence Computation, Slip Opinion No. 2022-Ohio-236.]
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SLIP OPINION NO. 2022-OHIO-236THE STATE EX REL. BEY, APPELLANT, v. BUREAU OF SENTENCE COMPUTATION
ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Bey v. Bur. of Sentence Computation, Slip
Opinion No. 2022-Ohio-236.]
Mandamus—Inmate failed to comply with requirements of R.C. 2969.25(A)—Court
of appeals’ dismissal of complaints affirmed.
(No. 2021-0183—Submitted September 7, 2021—Decided February 2, 2022.)
APPEAL from the Court of Appeals for Franklin County, Nos. 19AP-46 and
19AP-534, 2021-Ohio-70.
________________
Per Curiam.
{¶ 1} Appellant, Vincent El Alan Parker Bey, appeals the judgment of the
Tenth District Court of Appeals dismissing two complaints for writs of mandamus
to compel the Bureau of Sentence Computation (“BSC”) and the Ohio Adult Parole
Authority (“APA”) to produce public records. We affirm.
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I. BACKGROUND
A. Case No. 19AP-46
{¶ 2} In October 2018, while an inmate at the Trumbull Correctional
Institution (“TCI”), Bey sent a public-records request to the BSC for “a copy of the
journal entry of conviction in case number CR-95-320034.” According to Bey, he
never received a response from the BSC. In January 2019, he filed a complaint for
a writ of mandamus in the Tenth District Court of Appeals.
{¶ 3} In response to Bey’s complaint, the BSC submitted evidence that
included an affidavit from a BSC employee who attested that she sent the requested
documents to Bey in February 2019 (i.e., after the BSC received Bey’s complaint).
In his merit brief to the court of appeals, Bey acknowledged receiving the
documents but argued that he was entitled to statutory damages and court costs
because the BSC did not timely produce the records.
B. Case No. 19AP-534
{¶ 4} In February 2019, Bey sent a public-records request to the APA, again
requesting a copy of “the journal entry of conviction in case number CR-95-
320034.” In addition, he requested a copy of the APA’s “decision and minutes”
relating to a 2005 parole-board hearing. According to Bey, he never received a
response from the APA. In August 2019, he filed a mandamus complaint in the
Tenth District Court of Appeals. The APA filed a motion to dismiss based on Bey’s
alleged failure to comply fully with R.C. 2969.25(A), which requires an inmate
who commences a civil action against a governmental entity or employee to file an
affidavit describing “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.”
C. Consolidated proceedings
{¶ 5} The court of appeals sua sponte consolidated the two mandamus
cases. Bey filed a motion for reconsideration challenging the consolidation, which
the magistrate denied.
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{¶ 6} On February 6, 2020, the magistrate issued a decision in which she
concluded that the two affidavits of prior civil actions attached to Bey’s complaints
did not comply with R.C. 2969.25(A). She recommended that the court grant the
APA’s motion to dismiss case No. 19AP-534 and that the court “find in favor of”
the BSC in case No. 19AP-46.
{¶ 7} Bey filed seven objections to the magistrate’s decision. Of greatest
import, he challenged the magistrate’s recommendation to dismiss for failure to
comply with R.C. 2969.25(A), both on the merits and on the ground that “it can be
inferred that [the BSC] waived this defense.” He also objected to the consolidation
order, a number of alleged omissions in the magistrate’s findings in case No. 19AP-
46, and the magistrate’s failure to find that the BSC acted in bad faith when it
provided records after he filed the mandamus complaint.
{¶ 8} On January 14, 2021, the court of appeals overruled Bey’s objections
and dismissed the cases for failure to comply with R.C. 2969.25(A). 2021-Ohio-
70, ¶ 12. The court of appeals adopted the magistrate’s decision with one
modification: it dismissed case No. 19AP-46 “without any consideration of the
merits.” Id. at ¶ 9, 12. The court of appeals’ opinion did not separately address
each of the seven arguments set forth in Bey’s objections.
{¶ 9} Bey appealed.
II. ANALYSIS
A. Standard of review
{¶ 10} “We review de novo a decision granting a motion to dismiss under
Civ.R. 12(B)(6).” Alford v. Collins-McGregor Operating Co., 152 Ohio St.3d 303,
2018-Ohio-8, 95 N.E.3d 382, ¶ 10. In his merit brief, Bey raises eight propositions
of law, all of which are based on his claim that the court of appeals did not consider
his objections to the magistrate’s recommendation. Bey contends that because of
this omission, the court of appeals’ decision is not a final, appealable order.
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Therefore, before considering whether the court of appeals correctly dismissed the
complaints, we must first decide whether we have jurisdiction to hear the appeal.
B. Is there a final, appealable order?
{¶ 11} In his objections to the magistrate’s decision, Bey presented three
arguments concerning his affidavit of prior actions. The court of appeals analyzed
whether the two affidavits complied with the requirements of R.C. 2969.25(A),
2021-Ohio-70 at ¶ 9-10, and expressly rejected Bey’s substantial-compliance
argument, id. at ¶ 7. But the appeals court did not specifically mention Bey’s
allegation in his third objection that the BSC had waived the defense that he had
failed to comply with R.C. 2969.25(A). Bey suggests that the court’s failure to
independently review and address each of his objections, including his waiver
argument, means that the judgment entry is not a final, appealable order.
{¶ 12} Bey’s argument is without merit. The decision of the court of
appeals properly addressed and disposed of all issues that were before the court. In
its decision, the court held that because a compliant affidavit of prior actions was a
prerequisite to maintaining a mandamus action in this case, Bey’s failure in that
regard deprived the court of jurisdiction to entertain his claims. As we will discuss,
that was an accurate statement of the law. All other contentions made by Bey,
including his incorrect assertion that the respondent could somehow waive the
filing requirement, were disposed of with the jurisdictional determination. Because
the decision of the court of appeals determined the action, its judgment was a final,
appealable order. See R.C. 2505.02(B)(1).
C. Did Bey’s affidavits satisfy the statutory requirements?
{¶ 13} An inmate who commences a civil action against a governmental
entity or employee (other than in this court or the Court of Claims) must file an
affidavit describing “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.” R.C. 2969.25(A). The
affidavit must include “(1) A brief description of the nature of the civil action or
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January Term, 2022
appeal; (2) The case name, case number, and court in which the civil action or
appeal was brought; (3) The name of each party to the civil action or appeal; [and]
(4) the outcome of the civil action or appeal * * *.” R.C. 2969.25(A). Compliance
with R.C. 2969.25(A) is mandatory, and failure to comply warrants dismissal. State
v. Henton, 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, ¶ 3.
1. The affidavit in case No. 19AP-46
{¶ 14} Bey’s affidavit in case No. 19AP-46 (his claim against the BSC)
purported to list five prior civil actions from the previous five years, using the
following language:
(1) Court of Claims of Ohio against ODRC for a bailment issue
concerning legal property. Case Number 2013-00154, Vincent A.
Parker v. ODRC. Relator appealed the decision to the Tenth District
Court of Appeals, Case number 16-AP-615. (2) Supreme Court of
Ohio, on January 29, 2018, Original Action in Mandamus, case
number 2018-0147. (3) Eighth District Court of Appeals on
September 17, 2018 Original Action in Mandamus, case number
CA-18-107686. (4) Eleventh District Court of Appeals on October
2, 2018, Writ of Habeas Corpus, case number 2018-TR-090. (5)
Eighth District Court of Appeals, Original Action in Mandamus,
case number CA-18-107909.
As the magistrate noted, Bey failed to identify the opposing party in four of the five
listed cases, and he failed to list the outcomes for any of the cases. 2020-Ohio-70at ¶ 44. These omissions render the affidavit defective and require dismissal of the
complaint. See, e.g., Taylor v. Harris, 159 Ohio St.3d 564, 2020-Ohio-1046, 152
N.E.3d 262, ¶ 10 (affirming dismissal of inmate suit because affidavit of prior civil
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actions “failed to provide for each action the case name and number, the court in
which it was brought, and the outcome of the case”).
2. The affidavit in case No. 19AP-534
{¶ 15} The affidavit Bey attached to his complaint in case No. 19AP-534
(his claim against the APA) listed the following cases:
(1) Vincent A Parker v. ODRC case number 16-AP-615, relator
appealed a decision in [sic] that originated in the court of claims,
case number 2013-00154. (2) Supreme Court of Ohio, on January
29, 2018 Original Action in Mandamus Parker v. Russo 2018-0147,
court granted respondents motion to dismiss, writ denied. (3) State
ex rel Parker v. Russo Original Action in Mandamus, case number
CA-18-107686, writ denied, appeal pending. (4) State ex rel Parker
Bey v. Bracy Eleventh District Court of Appeals, Writ of Habeas
Corpus, case number 2018-TR-090, writ denied, appeal pending.
(5) State ex rel. Parker Bey v. Byrd, Original Action in Mandamus
case number CA-18-107909, writ denied, appeal pending. (6) State
ex rel. Parker Bey v. Julie Loomis & Trumbull Correctional
Institution et al., Eleventh District Court of Appeals, Original Action
in Mandamus, case number 2109-TR-35, pending. ( ) State ex rel.
Parker Bey v. Bureau Sentence Computation, Original Action in
Mandamus, Tenth District Court of Appeals, case number 19-AP-
46, pending.
The magistrate correctly concluded that this list also failed to comply with the
statute. R.C. 2969.25(A)(1) requires the affidavit to include a “brief description of
the nature of the civil action or appeal.” Although Bey corrected some of the flaws
from his previous affidavit, the first entry on the list, his appeal in “Vincent A.
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January Term, 2022
Parker v. ODRC case number 16-AP-615,” provides no description of the nature
of that appeal.
3. Bey’s objections to the magistrate’s decision regarding the affidavits
{¶ 16} In his third objection to the magistrate’s decision, Bey asserted three
arguments. First, he claimed that the BSC waived any challenge to his affidavits
by failing to raise it as an affirmative defense in its answer in case No. 19AP-46.
(This argument does not apply to case No. 19AP-534, because the APA did raise
the argument at the first opportunity in its motion to dismiss.)
{¶ 17} Civ.R. 8(C) designates specific defenses that must be set forth in an
answer or other responsive pleading, and the failure to do so constitutes a waiver.
See, e.g., State ex rel. Hogan Lovells U.S., L.L.P. v. Ohio Dept. of Rehab. & Corr.,
__ Ohio St.3d __, 2021-Ohio-1762, __ N.E.3d __, ¶ 31 (affirmative defense of
laches waived because it was not raised as an affirmative defense in the answer).
Affirmative defenses that are not listed in Civ.R. 8(C) are likewise waived unless
raised in the pleadings or in an amended pleading pursuant to Civ.R. 15. Jim’s
Steak House v. Cleveland, 81 Ohio St.3d 18, 20, 688 N.E.2d 506 (1998) (plurality).
And numerous courts of appeals have held that it is error for a court to raise and
rule on an affirmative defense sua sponte. See, e.g., Langley v. Langley, 5th Dist.
Coshocton No. 2013CA0015, 2014-Ohio-1651, ¶ 26; O’Brien v. Olmsted Falls, 8th
Dist. Cuyahoga Nos. 89966 and 90336, 2008-Ohio-2658, ¶ 14-15. Because the
BSC raised the affidavit issue for the first time in its merit brief, not in its answer,
Bey contends that the issue was waived.
{¶ 18} However, noncompliance with the R.C. 2969.25(A) affidavit
requirement is not an affirmative defense. An affirmative defense is “ ‘a
defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s
or prosecution’s claim, even if all the allegations in the complaint are true.’ ” State
v. Kay, 12th Dist. Butler No. CA2012-01-007, 2012-Ohio-3426, ¶ 14, quoting
Black’s Law Dictionary 482 (9th Ed.2009). An affirmative defense is one that
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“assumes establishment of a prima facie case.” Gallagher v. Cleveland Browns
Football Co., 74 Ohio St.3d 427, 432, 659 N.E.2d 1232 (1996), fn. 3. “ ‘It admits
that the plaintiff has a claim (the “confession”) but asserts some legal reason why
the plaintiff cannot have any recovery on that claim (the “avoidance”).’ ” State ex
rel. Plain Dealer Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 33, 661 N.E.2d
187 (1996), quoting 1 Klein, Browne & Murtaugh, Baldwin’s Ohio Civil Practice,
Section T 13.03, 33 (1988). By contrast, a defense that prevents a plaintiff or relator
from even establishing a prima facie case is not an affirmative defense. State ex
rel. Todd v. Canfield, 7th Dist. Mahoning No. 11 MA 209, 2014-Ohio-569, ¶ 14.
{¶ 19} The affidavit is an essential component of what an inmate-plaintiff
must file to commence a civil action against a public employee or entity, and a
challenge based on noncompliance with R.C. 2969.25(A) does not assume the
allegations in the complaint are true. An inmate’s compliance with R.C.
2969.25(A)’s affidavit requirement is “mandatory.” Henton, 146 Ohio St.3d 9,
2016-Ohio-1518, 50 N.E.3d 553, at ¶ 3. We have never held that the affidavit
requirement is an affirmative defense subject to waiver. To the contrary, we have
affirmed the practice of courts dismissing prisoner complaints sua sponte on this
basis. State ex rel. Watkins v. Andrews, 142 Ohio St.3d 308, 2015-Ohio-1100, 29
N.E.3d 967, ¶ 3. Thus, the BSC’s failure to raise this issue in its answer did not
preclude the BSC from asserting it for the first time in its merit brief before the
court of appeals. Bey’s first argument therefore has no merit.
{¶ 20} Second, Bey objected to the magistrate’s recommendation by
claiming that he complied with R.C. 2969.25(A) and that the magistrate improperly
held him to a “hyper-technical standard.” However, Bey cited no authority for this
argument, which is contrary to the well-established rule that R.C. 2969.25(A)
“requires strict compliance.” State ex rel. Swanson v. Ohio Dept. of Rehab. &
Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, 128 N.E.3d 193, ¶ 6; see also State ex
rel. Steele v. Foley, 164 Ohio St.3d 540, 2021-Ohio-2073, 173 N.E.3d 1209, ¶ 7.
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{¶ 21} Finally, Bey contends that the affidavit he filed in case No. 19AP-
534 satisfied the statute, even if the affidavit in case No. 19AP-46 did not. We have
already considered and rejected this claim above.
III. CONCLUSION
{¶ 22} For these reasons, we hold that the court of appeals correctly
dismissed both mandamus complaints because Bey failed to comply with the
requirements of R.C. 2969.25(A) in his affidavits of prior civil actions. And
because the complaints were properly dismissed, Bey’s remaining propositions of
law are moot. We affirm.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Vincent El Alan Parker Bey, pro se.
Dave Yost, Attorney General, and Tony H. Shang, Assistant Attorney
General, for appellee.
_________________
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