State ex rel. Wickensimer v. Bartleson

[Cite as State ex rel. Wickensimer v. Bartleson, 123 Ohio St. 3d 154, 2009-Ohio-4695.]
THE STATE EX REL. WICKENSIMER, APPELLANT, v. BARTLESON, APPELLEE.
[Cite as State ex rel. Wickensimer v. Bartleson,
123 Ohio St. 3d 154, 2009-Ohio-4695.]
Mandamus — R.C. 2969.25(A) — Requirement that inmate filing civil action
against government also file affidavit describing any such actions filed by
inmate within previous five years — Inmate who has not filed such action
within past five years not required to file affidavit.
(No. 2009-0755 ─ Submitted September 2, 2009 ─ Decided September 16, 2009.)
APPEAL from the Court of Appeals for Lucas County,
No. L-09-1049, 2009-Ohio-1477.
__________________
Per Curiam.
{¶ 1} We reverse the judgment of the court of appeals dismissing the
mandamus petition of appellant, Brian Wickensimer, for failure to comply with
R.C. 2969.25(A), and remand the cause to that court for further proceedings on
the petition.
{¶ 2} A failure to comply with the requirements of R.C. 2969.25 justifies
dismissal of an extraordinary-writ action. State ex rel. Grissom v. McGookey, 108
Ohio St. 3d 491, 2006-Ohio-1506, 844 N.E.2d 841, ¶ 4. R.C. 2969.25(A) requires
that “[a]t 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.”
{¶ 3} To determine the legislative intent behind this provision, we “read
words and phrases in context and construe them in accordance with rules of
grammar and common usage.” State ex rel. Russell v. Thornton, 111 Ohio St.3d
SUPREME COURT OF OHIO
409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 11. The plain language of the statute
includes no requirement that inmates who have not filed a civil action or appeal of
a civil action against a government entity or employee in the requisite five-year
period file this affidavit. We cannot add a requirement that does not exist in the
statute. See State ex rel. Lorain v. Stewart, 119 Ohio St. 3d 222, 2008-Ohio-4062,
893 N.E.2d 184, ¶ 36, and cases cited therein.
{¶ 4} Previous holdings imply this interpretation of R.C. 2969.25(A).
See State ex rel. Kimbro v. Glavas, 97 Ohio St. 3d 197, 2002-Ohio-5808, 777
N.E.2d 257, ¶ 3 (inmate relator “fails to assert that he has not filed any civil
actions in the previous five years or that R.C. 2969.25(A) is otherwise
inapplicable”). In addition, courts of appeals have expressly held that R.C.
2969.25(A) is not violated under these circumstances. Hill v. Ohio Adult Parole
Auth., Franklin App. No. 05AP-1086, 2006-Ohio-1299, ¶ 6 (“if an inmate has not
filed any civil actions in the previous five years, R.C. 2969.25(A) does not require
him to file an affidavit”); Rushing v. Haskins (1999), Noble App. No. 255, 1999
WL 61043, *2 (R.C. 2969.25(A) “does not specifically require an inmate to file
an affidavit stating that he has not filed any civil actions within the last five years”
[emphasis sic]). Notably, the record contains no evidence – and appellee does not
claim – that Wickensimer filed any specified action within the five-year period
before he filed his mandamus action.
{¶ 5} Finally, appellee’s reliance on Church v. Ohio Dept. of Rehab. &
Corr. (June 15, 1999), Franklin App. No. 98AP-1222, 1999 WL 394891, is
misplaced. In Church, the court of appeals held that although no affidavit was
required by R.C. 2969.25(A), “a written statement affirming that no prior actions
subject to disclosure exist should in fact be filed.” (Emphasis added.) Id. at *5;
Hill, at ¶ 6. But the court of appeals in Church and Hill did not suggest that this
“statement” was required by R.C. 2969.25(A); it merely held that such a
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statement should be filed. Again, nothing in the plain statutory language requires
such a statement.
{¶ 6} Therefore, the court of appeals erred in dismissing Wickensimer’s
mandamus petition based on noncompliance with R.C. 2969.25(A). The
judgment is thus reversed, and the cause is remanded for further proceedings on
the petition.
Judgment reversed
and cause remanded.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Brian Wickensimer, pro se.
Richard Cordray, Attorney General, and Melissa Montgomery, Assistant
Attorney General, for appellee.
__________________
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