State ex rel. Guthrie v. Chambers-Smith, Dir., Ohio Dept. of Rehab. & Corr.

[Cite as State ex rel. Guthrie v. Chambers-Smith, Dir., Ohio Dept. of Rehab. & Corr., 2022-Ohio-390.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State of Ohio ex rel. Russell Guthrie et al., :
Relators, :
v. : No. 21AP-476
Annette Chambers-Smith, Director, : (REGULAR CALENDAR)
Ohio Department of Rehabilitation
and Correction, :
Respondent]. :
D E C I S I O N
Rendered on February 10, 2022
On brief: Russell Guthrie and Darryl Smith, pro se.
On brief: Dave Yost, Attorney General, William Case, and
George Horvath, for respondent.
IN MANDAMUS
DORRIAN, J.
{¶ 1} In this original action, relators Russell Guthrie and Darryl Smith request a
writ of mandamus ordering respondent Annette Chambers-Smith, Director of the Ohio
Department of Rehabilitation and Correction to comply with Ohio laws and regulations
governing prison administration.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate recommends this court
sua sponte dismiss relators' complaint.
{¶ 3} No party has filed objections to the magistrate's decision. The case is now
before this court for review.
No. 21AP-476 2
{¶ 4} It is important to note that the magistrate here recommends sua sponte
dismissal on the grounds that relators have not met the criteria set forth in R.C. 2969.25(A)
because relators' affidavit was not notarized1 and the description of prior civil cases was not
sufficient. The magistrate does not recommend dismissal based on the grounds set forth in
respondent's motion to dismiss. Likewise, we do not dismiss this case on the grounds set
forth in respondent's motion to dismiss. Accordingly, we find respondent's motion to
dismiss to be moot.
{¶ 5} No error of law or other defect is evident on the face of the magistrate's
decision. Therefore, we adopt the findings of fact and conclusions of law contained therein.
Accordingly, relators' request for a writ of mandamus is sua sponte dismissed.
Respondent's motion to dismiss is rendered moot.
Action dismissed.
LUPER SCHUSTER, P.J., and SADLER, J., concur.
1 Both affidavits of relator Guthrie and relator Smith state "no notary available."
No. 21AP-476 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Russell Guthrie et al., :
Relators, :
v. : No. 21AP-476
Anette Chambers-Smith, Director of : (REGULAR CALENDAR)
The Ohio Department of Rehabilitation
and Correction, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on November 17, 2021
Russell Guthrie and Darryl Smith, pro se.
Dave Yost, Attorney General, William Case, and George
Horvath, for respondent.
ON SUA SPONTE DISMISSAL
{¶ 6} Relators Russel Guthrie and Darryl Smith seek a writ of mandamus ordering
respondent, Annette Chambers-Smith, Director of the Ohio Department of Rehabilitation
and Correction ("ODRC"), to comply with Ohio laws and regulations governing prison
administration. For the reasons that follow, the magistrate recommends sua sponte
dismissal of the complaint.
Findings of fact:
{¶ 7} 1. Relators are inmates in the custody of ODRC.
No. 21AP-476 4
{¶ 8} 2. Relators filed their complaint in mandamus on September 23, 2021,
seeking compliance with Ohio Adm.Code 5120-9-14 relating to their conditions of
incarceration.
{¶ 9} 3. Relators' complaint includes an R.C. 2969.25(A) statement for each setting
forth a list of civil actions filed in all venues in the previous five years. Neither statement is
notarized.
{¶ 10} For Smith, the statement lists five cases. Two of these are incompletely
described. One case in the Ohio Court of Claims lacks a case number, description of the
nature of the action, and a date of filing. Another, a habeas action in the Fifth District, lacks
a case number.
{¶ 11} For Guthrie, the statement lists five cases. A case in the Court of Claims lacks
a case number, date of filing, and description of the nature of the action. A mandamus
action in this court, case No. 21AP-335, gives no information of the nature of the case
beyond the fact that it is an action in mandamus. This case is also noted as "transferred,"
but provides no information as to the original venue of filing.
{¶ 12} 4. Respondent moved on October 21, 2021 for an extension of time to respond
or plead. The magistrate granted this motion by order of October 25, 2021.
{¶ 13} 5. Relator Smith moved on October 29, 2021 to amend the complaint with
additional factual allegations.
{¶ 14} 6. Respondent filed a motion to dismiss for failure to state a claim on
November 12, 2021.
Discussion and Conclusions of law:
{¶ 15} R.C. 2969.25(A) requires an inmate to file, at the time he commences a civil
action against a governmental entity or employee, an affidavit listing each civil action or
appeal of a civil action that he has filed in the past five years. R.C. 2969.25(A)(1) through
(4) provides as follows:
At 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. The
affidavit shall include all of the following for each of those civil
actions or appeals:
No. 21AP-476 5
(1) A brief description of the nature of the civil action or appeal;
(2) The case name, case number, and the court in which the
civil action or appeal was brought;
(3) The name of each party to the civil action or appeal;
(4) The outcome of the civil action or appeal, including whether
the court dismissed the civil action or appeal as frivolous or
malicious under state or federal law or rule of court, whether
the court made an award against the inmate or the inmate’s
counsel of record for frivolous conduct under section 2323.51
of the Revised Code, another statute, or a rule of court, 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.
{¶ 16} Compliance with the provisions of R.C. 2969.25 is mandatory and the failure
to satisfy the statutory requirements is grounds for dismissal of the action. State ex rel.
Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258 (1999); State ex rel. Zanders v.
Ohio Parole Bd., 82 Ohio St.3d 421 (1998). R.C. 2969.25 requires strict compliance, State
ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6,
and nothing in R.C. 2969.25 contemplates mere substantial compliance. State ex rel.
Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4, citing Martin v. Ghee, 10th
Dist. No. 01AP-1380, 2002-Ohio-1621. Furthermore, a failure to comply with R.C. 2969.25
cannot be cured after the fact by belatedly attempting to file a compliant affidavit. State ex
rel. Young v. Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9.
{¶ 17} R.C. 2969.25(A) specifies that the requisite information shall be submitted in
affidavit form. R.C. 2319.02 defines an affidavit as a "written declaration under oath, made
without notice to the adverse party." In order to constitute a valid affidavit, the statement
must be both signed by the affiant and notarized. Rarden v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 12AP-225, 2012-Ohio-5667. Under similar circumstances, the Supreme
Court of Ohio has stated that if a "relator's statement is not notarized, it does not meet the
requirements of an affidavit of indigency [under R.C. 2969.25(C)] and therefore is not
sufficient for waiver of the docket fee." Rudd v. Graham, 74 Ohio St.3d 1506 (1996); see
also State v. Cannon, 87 Ohio St.3d 1484 (2000); Williams v. Mansfield Corr. Inst., 10th
Dist. No. 99AP-1208 (Feb. 10, 2000). Relators' statements supplied in attempted
No. 21AP-476 6
compliance with the inmate filing requirements are not notarized as required by R.C.
2319.02 and, therefore, do not comply with the mandatory filing requirements set forth in
R.C. 2969.25(A). State ex rel. Ely v. Wilkinson, 10th Dist. No. 05AP-322, 2005-Ohio-4574,
¶ 3.
{¶ 18} Moreover, relators' statements as described above do not furnish all the
information required by R.C. 2969.25(A). Some of the listed cases omit basic information
such as case numbers or date of filing. Another is listed as a mandamus action, but provides
no further description. More is needed:
Although relator indicated in the affidavit that the prior action
was a "[w]rit of mandamus," such does not comply with the
requirement in R.C. 2969.25(A)(1) that the affidavit contain a
brief description of the nature of the civil action. See State ex
rel. Bey v. [Ohio] Bur. of Sentence Computation, 10th Dist. No.
19AP-46, 2021-Ohio-70, ¶ 6-11 (dismissal of mandamus action
appropriate when the affidavit indicated the general type of
action filed in most of the cases, e.g., original action in
mandamus or writ of habeas corpus, but it did not actually
describe the nature of the actions, such as describing that the
cases are original actions in mandamus to compel compliance
with a public records request or to compel the judge to vacate
relator's guilty pleas to the offense of murder). Relator's
affidavit fails to actually describe the nature of the action,
beyond the general description of "[w]rit of mandamus." This
vague description is insufficient to comply with R.C.
2969.25(A) under the court's holding in Bey.
State ex rel. Battigaglia v. Bur. of Sentence Computation, 10th Dist. No. 20AP-520, 2021-
Ohio-3008, ¶ 7.
{¶ 19} Accordingly, it is the magistrate's decision and recommendation that, based
on relators' failure to comply with the mandatory filing requirements of R.C. 2969.25(A),
this court should sua sponte dismiss the complaint. Relator Smith's motion to amend the
complaint and respondent's motion to dismiss under Civ.R. 12(B)(6) are rendered moot.
/S/MAGISTRATE
MARTIN L. DAVIS
No. 21AP-476 7
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).