State ex rel. Neil v. French (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Neil v. French, Slip Opinion No. 2018-Ohio-2692.]
NOTICE
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SLIP OPINION NO. 2018-OHIO-2692THE STATE EX REL. NEIL, APPELLANT, v. FRENCH, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Neil v. French, Slip Opinion No.
2018-Ohio-2692.]
Procedendo—R.C. 2969.25—Failure to file a statement setting forth the balance in
an inmate’s account—R.C. 2969.25 does not allow for substantial
compliance—Court of appeals’ dismissal of complaint for a writ affirmed.
(No. 2017-1221—Submitted January 23, 2018—Decided July 11, 2018.)
APPEAL from the Court of Appeals for Franklin County, No. 17AP-241.
________________
Per Curiam.
{¶ 1} Appellant, Miguel Neil, appeals the judgment of the Tenth District
Court of Appeals dismissing his complaint for a writ of procedendo against
appellee, Franklin County Common Pleas Court Judge Jenifer French. For the
reasons set forth below, we affirm the judgment of the court of appeals.
SUPREME COURT OF OHIO
Background
{¶ 2} On April 6, 2017, Neil filed a complaint in the Tenth District Court of
Appeals seeking a writ of procedendo against Judge French. Neil alleged that he
had filed a petition for postconviction relief on February 3, 2016, that Crim.R.
35(C) requires that a ruling be issued on a postconviction petition within 180 days
of its filing, and that Judge French had not yet ruled on the petition.
{¶ 3} Neil filed an affidavit of indigency with his complaint and requested
that the court waive its filing fee. In the affidavit, he attested that he is incarcerated,
that he nets only $13.50 a month for his job assignment, and that he has no assets
or property.
{¶ 4} The court of appeals referred the case to a magistrate. On April 27,
2017, the magistrate recommended that the court of appeals dismiss the complaint
sua sponte because Russell had failed to comply with the requirements of R.C.
2969.25(C). R.C. 2969.25(C) requires two things of an inmate who seeks a waiver
of a court’s filing fees when instituting a suit in the court of appeals against a
government actor: (1) a statement setting forth the balance in the inmate’s account
for each of the preceding six months and (2) a statement that sets forth all other
cash and things of value owned by the inmate at the time of filing. Neil submitted
the statement of assets but not the mandatory inmate-account statement.
{¶ 5} Neil did not object to the magistrate’s recommendation. After a
review of the record, the court of appeals adopted the recommendation and
dismissed the complaint. Neil appealed.
Analysis
{¶ 6} In his merit brief, Neil changes the theory of the merits of his request
for a writ of procedendo. He now asserts that “on October 31, 2016, the trial court
rendered a decision but [Neil] was never served notice of the judgment entry,
preventing him from appealing to a superior court.” Neil’s admission that the trial
court did in fact issue a judgment entry is a concession that his procedendo
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January Term, 2018
complaint is moot. State ex rel. Poulton v. Cottrill, 147 Ohio St.3d 402, 2016-Ohio-
5789, 66 N.E.3d 716, ¶ 1-2 (holding that “[p]rocedendo will not compel the
performance of a duty that has already been performed” and that in such
circumstances, the complaint is moot). Instead, Neil implies that he is seeking relief
because the court’s failure to serve the judgment properly cost him his opportunity
to appeal. But Judge French agrees that he was not properly served with a decision
and that Neil therefore “can proceed with an appeal of the trial court’s ruling.”
{¶ 7} However, “[t]he requirements of R.C. 2969.25 are mandatory and
failure to comply with them requires dismissal of an inmate’s complaint.” State ex
rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4. In his
first proposition of law, Neil argues that the court should excuse his noncompliance
with a single technicality because there has been “ ‘some semblance of
compliance,’ ” Neil’s brief, quoting Coleman v. Davis, 4th Dist. Jackson No.
10CA5, 2011-Ohio-506, ¶ 14. However, R.C. 2969.25(C) does not permit
substantial compliance. State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-
Ohio-4478, 894 N.E.2d 47, ¶ 4.
{¶ 8} Neil argues that “[i]t is unconstitutional to deny one party judgment
due to a single technicality.” (Emphasis sic.) He cites no authority for this
proposition and has therefore “failed to rebut the presumed constitutionality of the
statute.” State ex rel. Evans v. McGrath, 151 Ohio St.3d 345, 2017-Ohio-8290, 88
N.E.3d 957, ¶ 6 (rejecting constitutional challenge to R.C. 2969.25(C)(1) filing
requirements); see also Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859, 951
N.E.2d 389, ¶ 3 (same).
{¶ 9} Finally, in his second proposition of law, Neil attempts to craft a
constitutional argument based on what he argues is inconsistent treatment of pro se
suits by the various courts of appeals. According to Neil,
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SUPREME COURT OF OHIO
some [Ohio courts] hold that pro se litigants should be held to the
same standards as lawyers, while others hold that they should not be
held to the same standards as lawyers and give greater latitude
towards errors in pro se litigant’s pleadings.
(Italics sic.) He asks this court to adopt a blanket rule of substantial compliance to
excuse errors and omissions in pro se pleadings.
{¶ 10} We have repeatedly declared that “pro se litigants * * * must follow
the same procedures as litigants represented by counsel.” State ex rel. Gessner v.
Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 5. “ ‘It is well
established that pro se litigants are presumed to have knowledge of the law and
legal procedures and that they are held to the same standard as litigants who are
represented by counsel.’ ” (Italics sic.) State ex rel. Fuller v. Mengel, 100 Ohio
St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of
Job & Family Serv., 145 Ohio St.3d 651, 654, 763 N.E.2d 1238 (2001).
{¶ 11} Neil is correct that the state’s appellate courts sometimes express a
willingness to deviate from this principle. See, e.g., Mitchell v. Holzer Med. Ctr.,
4th Dist. Gallia No. 16CA20, 2017-Ohio-8244, ¶ 7 (“Because we ordinarily prefer
to review a case on its merits rather than dismiss the action due to procedural
technicalities, we generally afford considerable lenience to pro se litigants”);
Johnson v. Geico Homesite, Inc., 6th Dist. Ottawa No. OT-17-003, 2017-Ohio-
7273, ¶ 9 (a “court may afford a pro se litigant some leeway by generously
construing his filings”). But that leeway manifests in limited ways: attempting to
address a pro se litigant’s arguments on the merits when they are indecipherable,
Angus v. Angus, 10th Dist. Franklin No. 14AP-742, 2015-Ohio-2538, ¶ 10, or
liberally construing the allegations in a pro se prisoner complaint as stating the
elements of a claim, Baker v. Ohio Dept. of Rehab. & Corr., 144 Ohio App.3d 740,
744, 761 N.E.2d 667 (4th Dist.2001). And appellate courts do recognize that any
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January Term, 2018
leniency afforded to pro se litigants does not extend to compliance with R.C.
2969.25(C). See, e.g., Ohio Atty. Gen. v. Brock, 4th Dist. Hocking No. 14CA19,
2015-Ohio-4173, ¶ 19; Morris v. Franklin Cty. Court of Common Pleas, 10th Dist.
Franklin No. 05AP-596, 2005-Ohio-6306, ¶ 3-6. Appellate courts have strictly
applied R.C. 2969.25(C). Thus, Neil cannot present evidence of a conflict among
the judicial districts or of a constitutional violation.
{¶ 12} The court of appeals properly dismissed Neil’s complaint for failure
to attach the statement of inmate account required by R.C. 2969.25(C).
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
DEGENARO, J., not participating.
_________________
Miguel E. Neil, pro se.
Ron O’Brien, Franklin County Prosecuting Attorney, and Benjamin D.
Humphrey, Assistant Prosecuting Attorney, for appellee.
_________________
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