State ex rel. Keith v. Adult Parole Auth.

[Cite as State ex rel. Keith v. Adult Parole Auth., 2018-Ohio-1711.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Bernard R. Keith, :
Relator, :
v. : No. 17AP-583
Ohio Adult Parole Authority et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on May 3, 2018
On brief: Bernard R. Keith, pro se.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Bernard R. Keith, relator, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Ohio Adult Parole Authority to grant him a
new parole hearing.
{¶ 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
dismiss relator's mandamus action.
{¶ 3} Under R.C. 2969.25(C)(1), the statement of the inmate account must be "for
each of the preceding six months, as certified by the institutional cashier." The magistrate
concluded relator failed to satisfy the mandatory filing requirements of R.C. 2969.25(C)
because he failed to include a statement from the institutional cashier setting forth the
No. 17AP-583 2
balance of his inmate account for the month of July 2017. Thus, in a December 14, 2017
decision, the magistrate recommended sua sponte dismissal of the action and an order that
relator pay the costs of the proceedings.
{¶ 4} Relator filed an objection to the magistrate's decision pursuant to Civ.R.
53(D)(3)(b):
[T]he deficiency of the offending challenged document
submission cannot be attributed to any action or inaction on
the part of Relator.
{¶ 5} Relator does not deny or dispute the findings of the magistrate as to the
deficiency of the cashier's statement or the mandatory requirement of R.C. 2969.25(C).
Rather, relator argues he should not be penalized and prejudiced for the actions of
respondent, the institution's cashier's office, "for the faulty and deficient submission of a
cashier's statement that has been previously complained of as being designed to
deliberately sabotage/subvert Relator's filings." (Obj. at 2.) Relator further asks this court
to consider "a continuing pattern of questionable antics [sic] that have culminated in the
magistrate's recommendation that this action * * * be sua sponte dismissed." (Obj. at 3.)
Finally, relator argues respondent has prevented him from making a determination as to
the accuracy/validity of the cashier's statement as he was not permitted to examine the
affidavit and cashier's statement prior to respondent filing the same. Relator asks this court
to not charge him with the deficiency and to admonish and/or sanction respondent for
having provided relator with a document that was known or should have been known to be
non-compliant.
{¶ 6} As the Supreme Court of Ohio has held, "[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, ¶ 4, citing
State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259 (1999). The
magistrate relied on the Supreme Court's decision in State ex rel. Pamer v. Collier, 108
Ohio St.3d 492, 2006-Ohio-1507, in determining relator did not comply with R.C.
2969.25(C) when he filed this action. In Pamer, the Supreme Court held R.C.
2969.25(C)(1) warranted dismissal of an inmate's complaint in mandamus where the
inmate filed his action on September 19, 2005, but the statement of his inmate account
covered the time period from March 1 through August 1, 2005. The court reasoned that
No. 17AP-583 3
because the inmate did not set forth the account balance for "the month immediately
preceding his mandamus complaint," August 2005, the inmate did not comply with the
requirement in R.C. 2969.25(C)(1) that the statement of account set forth the balance in the
inmate's account for each of the preceding six months. Id. at ¶ 5.
{¶ 7} We agree with the magistrate that Pamer is binding here as the facts in Pamer
are nearly identical to the facts in the present case. Like the inmate in Pamer, relator failed
to provide a statement of the balance of his inmate account for the month immediately
preceding his mandamus complaint. Relator concedes this point. Relator does not,
however, point us to any case law or other authority which provides for an exception to
Pamer for the reasons he posits in his brief. Accordingly, we are bound by Pamer in this
case.
{¶ 8} We find the magistrate discerned the pertinent facts and properly applied the
relevant law to those facts. Because relator did not comply with R.C. 2969.25(C)(1), we
adopt the magistrate's decision as our own, including the magistrate's findings of fact and
conclusions of law. We decline, however, to impose costs on relator.
{¶ 9} Accordingly, having adopted the magistrate's decision as our own, with the
exception of imposing court costs on relator, we overrule relator's objection to the
magistrate's decision. Accordingly, we sua sponte dismiss relator's request for a writ of
mandamus.
Objection overruled;
action dismissed.
TYACK and KLATT, JJ., concur.
No. 17AP-583 4
APPENDIX
The State ex rel. Bernard R. Keith, :
Relator, :
v. : No. 17AP-583
Ohio Adult Parole Authority, et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on December 14, 2017
Bernard R. Keith, pro se.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
{¶ 10} Relator, Bernard R. Keith, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Ohio Adult Parole Authority to grant him a
new parole hearing.
Findings of Fact:
{¶ 11} 1. Relator is an inmate currently incarcerated at Pickaway Correctional
Institution.
{¶ 12} 2. On August 16, 2017, relator filed the instant mandamus action.
{¶ 13} 3. At the time he filed this mandamus action, he submitted an affidavit of
indigency and attached a certified copy which includes the amount in his inmate account for
the months December 26, 2016 through June 26, 2017.
Conclusions of Law:
{¶ 14} The magistrate recommends that this court sua sponte dismiss this action
because relator has failed to comply with the requirements of R.C. 2969.25(C).
No. 17AP-583 5
{¶ 15} In regard to filing fees, R.C. 2969.25(C) and 2969.22 distinguish between
paying the full amount of filing fees upon filing (referred to as "prepayment" of fees) and
paying the fees pursuant to periodic deductions from the inmate's account maintained by
the prison.1 Under R.C. 2969.25(C), an inmate who seeks waiver of prepayment on grounds
of indigency must file an affidavit that includes: (1) a statement of the amount in the
inmate's account for each of the preceding six months as certified by the institutional
cashier, and (2) a statement of all other cash and things of value owned by the inmate.
{¶ 16} Compliance with the provisions of R.C. 2969.25 is mandatory and 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); State ex rel. Alford v. Winters, 80 Ohio St.3d
285 (1997).
{¶ 17} In State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, the
Supreme Court of Ohio affirmed the judgment of the court of appeals from Medina County
which had dismissed the complaint of George D. Pamer, an inmate at Mansfield
Correctional Institution, for his failure to comply with the requirements of R.C. 2969.25(C).
Specifically, the court stated:
Pamer's cashier statement did not set forth the account balance
for the month immediately preceding his mandamus
complaint - August 2005. See R.C. 2969.25(C)(1), which
requires an inmate filing a civil action against a government
employee seeking waiver of prepayment of court filing fees to
file a "statement that sets forth the balance in the inmate
account for each of the preceding six months, as certified by the
institutional cashier." Pamer's failure to comply with R.C.
2969.25(C)(1) warranted dismissal of the complaint. State ex
rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio
St.3d 195, 2005-Ohio-6184, 837 N.E.2d 777, ¶ 5.
In addition, nothing in R.C. 2969.25 required the court of
appeals to afford Pamer the opportunity to pay the requisite
filing fee before dismissing the case when Pamer expressly
requested waiver of prepayment of those fees.
1Under the statute, when the inmate has submitted the requisite affidavit of indigency, the clerk charges the
inmate's account for funds in excess of ten dollars. Following that payment, all income in the inmate's account
(excluding the ten dollars) is forwarded to the clerk each month until the fees are paid.
No. 17AP-583 6
Finally, because Pamer did not prevail and did not establish his
indigency, the court of appeals did not abuse its discretion in
ordering him to pay the costs of the proceeding. See State ex
rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750 N.E.2d
164; Civ.R. 54(D).
Id. at ¶ 5-7.
{¶ 18} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-
Ohio-854, the Supreme Court affirmed the judgment of the Ross County Court of Appeals
which had dismissed the complaint filed by William L. Ridenour because of his failure to
comply with R.C. 2969.25(C). In that case, Ridenour had filed a motion for reconsideration
attaching a statement setting forth his inmate account balance for the six months preceding
the filing of his complaint; however, the statement was not certified by the institutional
cashier.
{¶ 19} In affirming the judgment of the appellate court, the Supreme Court stated:
"The requirements of R.C. 2969.25 are mandatory, and failure
to comply with them 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. Ridenour failed to comply with
R.C. 2969.25(C)(1), which requires an inmate filing a civil
action against a government employee seeking waiver of
prepayment of court filing fees to file with the complaint a
"statement that sets forth the balance in the inmate account
of the inmate for each of the preceding six months, as certified
by the institutional cashier."
Moreover, although Ridenour claims that the court erred in
failing to grant him leave to amend his complaint to comply
with R.C. 2969.25(C)(1), he never filed a motion to amend his
complaint. Instead, he filed a motion for reconsideration,
which was "a nullity because his mandamus action was filed
originally in the court of appeals, rendering App.R. 26(A)
inapplicable." State ex rel. Washington v. Crush, 106 Ohio
St.3d 60, 2005-Ohio-3675, 831 N.E.2d 432, ¶ 5.
Id. at ¶ 5-6.
{¶ 20} Just as Pamer's cashier statement did not set forth the account balance for
the month immediately preceding the filing of his mandamus complaint, relator's cashier
statement here likewise did not set forth the account balance for the month immediately
preceding the filing of his mandamus complaint: July 2017. Because the requirements of
No. 17AP-583 7
R.C. 2969.25 are mandatory, relator's failure to comply with R.C. 2969.25(C) subjects his
action to dismissal. Further, pursuant to the above-cited authority, inasmuch as relator did
not prevail and did not establish indigency, this court should order relator to pay the costs
of the proceedings.
/S/ MAGISTRATE
STEPHANIE BISCA
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).