DocketNumber: No. 05AP-1086.
Judges: BROWN, J.
Filed Date: 3/21/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} Appellant is currently incarcerated. On May 17, 2005, appellant filed a "motion for a court order of immediate compliance to this court's previous order," which the trial court construed as a complaint against the OAPA. The action apparently sought an order granting him a new parole hearing based upon this court's decision in Ankrom v. Hageman, Franklin App. No. 04AP-984,
{¶ 3} On September 14, 2005, the trial court filed a judgment in which it granted the OAPA's motion to dismiss, denied appellant's motion to strike the OAPA's motion to dismiss, and denied appellant's motion to amend. The court granted the OAPA's motion to dismiss based upon appellant's failure to comply with R.C.
[I.] The Trial Court errored in dismissing Mr. Hill's Complaint filed on 05-17-05, without providing a fair oppertunity of litigation on the merits raised within said complaint within Case No. 05-CVH-5458 that was dismissed on or about 09-14-05. [Sic.]
[II.] The Trial Court errored by denying Mr. Hill's Due-process rights in not conforming within the "ORIGINAL CASE SCHEDULE" that caused U.S. and State Constitutional violations in denial to Witnesses, Discovery, et cetra[.] [Sic.]
[III.] The Trial Court errored in not providing an approperate remedy within the Senate Bill II's . . . Intent of "Old-law Offenders," held under the Adult Parole Board Authority inwhich such Offenders were Convicted through entry of a Plea Agreement. . ., and Matters of Consideration through the Decision rendered within Layne V. Ohio Adult ParoleAuthority,
[IV.] The Trial Court errored by not declairing the Adult Parole Authority in violation of the Seperation of Power(s) Doctrine upon the (A.P.A.) Failure to comply within the Trial Courts Intent of the Plea Agreement and therefore denying Mr. Hill a meaningful Consideration under the findings of the Layne decision during the review of Mr. Hill's Prole Board Hearing(s) that are a Liberty interest. [Sic.]
[V.] The Trial Court errored in applying Cost assessed against Mr. Hill, Upon the Dismissal of his Complaint without holding a "Ability to Pay" hearing to consider his Indigency Status and there for causing a un-due Hardship on attacking his Inmate Account and denying him time to seek a remedy before debiting of his Inmate account . . . and, the likelyhood of possible remedy through a successful Appeal. [Sic.]
[VI.] The Court errored in not Staying Mr. Hill's Action until the determination of the ANKROM Case that Mr. Hill relys on to support the Merit for a Meaningful hearing and review. [Sic.]
{¶ 4} We will address appellant's first and second assignments of error together. Appellant argues, generally, in these two assignments of error that the trial court erred in dismissing his complaint. The trial court dismissed appellant's complaint pursuant to Civ.R. 12(B)(6). Appellate review of an order granting a Civ.R. 12(B)(6) motion to dismiss is de novo.Perrysburg Twp. v. Rossford,
(A) 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 OAPA agrees with the trial court's reasoning and maintains that the trial court properly dismissed appellant's complaint based upon his failure to file an R.C.
{¶ 5} However, neither the OAPA, either below or on appeal, nor the trial court acknowledge that appellant, in fact, filed an affidavit contemporaneously with his July 6, 2005 motion to amend and motion to dismiss. In the affidavit, appellant averred that he had not filed any civil action in the previous five years in any state or federal court. This affidavit was filed after his May 17, 2005 complaint and the OAPA's June 16, 2005 motion to dismiss, but before the trial court's September 14, 2005 judgment.
{¶ 6} This court has found before that, if an inmate has not filed any civil actions in the previous five years, R.C.
{¶ 7} Further, this court has held that a trial court should accept an inmate's belated affidavit, even without a motion to amend, before dismissing the action for failure to comply with R.C.
{¶ 8} At least one other appellate court has agreed with our above conclusions. In Snitzky v. Wilson, Trumbull App. No. 2003-T-0095,
{¶ 9} Based upon the above cases, we find the trial court erred in dismissing appellant's complaint. Pursuant to Church,
appellant was not required to file an affidavit, as he had not filed any cases within the last five years, and the court should have accepted the affidavit as a written statement affirming that no prior actions subject to disclosure existed. Further, even if an affidavit was required, the trial court should have found appellant's belated affidavit, filed after the OAPA's motion to dismiss, was sufficient to comply with the requirements of R.C.
{¶ 10} We address appellant's fifth assignment of error next. Appellant argues in his fifth assignment of error that the trial court erred in assessing costs against him upon dismissal of his complaint. On July 6, 2005, appellant filed, along with his R.C.
(C) If an inmate who files a civil action or appeal against a government entity or employee seeks a waiver of the prepayment of the full filing fees assessed by the court in which the action or appeal is filed, the inmate shall file with the complaint or notice of appeal an affidavit that the inmate is seeking a waiver of the prepayment of the court's full filing fees and an affidavit of indigency. The affidavit of waiver and the affidavit of indigency shall contain all of the following:
(1) 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;
(2) A statement that sets forth all other cash and things of value owned by the inmate at that time.
{¶ 11} For the same reasons as indicated above with regard to the affidavit under R.C.
{¶ 12} Appellant's remaining assignments of error relate to the underlying merits of his complaint. As the trial court never addressed the merits of appellant's claims, and its dismissal was premised solely upon appellant's failure to comply with R.C.
{¶ 13} Accordingly, appellant's first, second, and fifth assignments of error are sustained, appellant's third, fourth, and sixth assignments of error are overruled as moot, the judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded to that court for further proceedings in accordance with law, consistent with this opinion.
Judgment reversed and cause remanded.
Klatt, P.J., and Petree, J., concur.