State ex rel. Lacking v. Woods

[Cite as State ex rel. Lacking v. Woods, 2016-Ohio-5207.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ivan J. [Lacking], :
Relator, :
v. : No. 16AP-49
[Honorable] Judge William [H.] Woods, : (REGULAR CALENDAR)
Respondent. :
DECISION
Rendered on August 2, 2016
On brief: Ivan J. Lacking, pro se.
On brief: Ron O'Brien, Prosecuting Attorney, and Jeffrey C.
Rogers, for respondent.
IN PROCEDENDO
ON MOTION TO DISMISS
HORTON, J.
{¶ 1} Relator, Ivan J. Lacking, an inmate incarcerated at Chillicothe Correctional
Institution, has filed an original action requesting that this court issue a writ of
procedendo ordering respondent, the Honorable William H. Woods, a judge of the
Franklin County Court of Common Pleas, to rule on motions for resentencing based on a
void judgment in criminal proceedings in Franklin C.P. Nos. 09CR-5537 and 09CR-5876.
{¶ 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 of this court who issued the appended
decision, including findings of fact and conclusions of law, recommending that this court
dismiss relator's action for failure to comply with the requirements of R.C. 2969.25, and
that this court order relator to pay the costs of the proceedings. Relator filed an objection
only as to the payment of costs.
No. 16AP-49 2
{¶ 3} On February 12, 2016, respondent filed a motion to dismiss relator's
complaint, asserting that relator's request for a writ of procedendo was moot as
respondent had already ruled on the underlying motions. In support, respondent attached
to his motion copies of the dockets for Franklin C.P. Nos. 09CR-5537 and 09CR-5876,
indicating the ruling on and denial of relator's motions for resentencing.
{¶ 4} Under Ohio law, procedendo will not lie to compel an act that has already
been performed. State ex rel. Lester v. Pepple, 13o Ohio St.3d 353, 2o11-Ohio-5756, ¶ 1. As
respondent has already ruled on relator's motions, relator's request for a writ of
procedendo is moot. Accordingly, we grant respondent's motion to dismiss.
{¶ 5} Based on the foregoing, respondent's motion to dismiss is granted, the
decision of the magistrate is vacated and relator's objection is moot, and relator's request
for a writ of procedendo is dismissed as moot.
Motion to dismiss granted; action dismissed.
TYACK and SADLER, JJ., concur.
_________________
No. 16AP-49 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Ivan J. [Lacking], :
Relator, :
v. : No. 16AP-49
[Honorable] Judge William Woods, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on February 26, 2016
Ivan J. Lacking, pro se.
IN PROCEDENDO
ON SUA SPONTE DISMISSAL
{¶ 6} Relator, Ivan J. Lacking, has filed this original action requesting that this
court issue a writ of procedendo ordering respondent, the Honorable William Woods,
judge of the Franklin County Court of Common Pleas, to rule on a motion relator has
pending in his underlying criminal action.
Findings of Fact:
{¶ 7} 1. Relator is an inmate currently incarcerated at Chillicothe Correctional
Institution.
{¶ 8} 2. On January 22, 2016, relator filed this procedendo action asking this
court to order respondent to rule on a motion relator has pending in his underlying
criminal case.
No. 16AP-49 4
{¶ 9} 3. At the time he filed this procedendo action, relator filed an affidavit of
each appeal or civil case he has filed in the previous five years.
{¶ 10} 4. Relator also filed an affidavit of indigency; however, relator failed to
include a statement of the amount in his inmate account for each of the preceding six
months, as certified by the institutional cashier, nor filed a statement of all other cash and
things of value he owns.
Conclusions of Law:
{¶ 11} The magistrate recommends that this court sua sponte dismiss this action
because relator has failed to comply with the mandatory requirements of R.C. 2969.25(C).
{¶ 12} In regard to filing fees, R.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 the grounds of
indigency must file an affidavit that includes: (1) a statement of the amount in his inmate
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.
{¶ 13} 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); State ex rel. Alford v. Winters, 80
Ohio St. 3d 285 (1997).
{¶ 14} In State ex rel. Pamer v. Collier, 108 Ohio St. 3d 492, 2006-Ohio-1507, the
Ohio Supreme Court 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
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 $10) is forwarded to the clerk each month until the fees are paid.
No. 16AP-49 5
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.
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.
{¶ 15} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St. 3d 260, 2008-
Ohio-854, the Supreme Court of Ohio 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
month preceding the filing of his complaint; however, the statement was not certified by
the prison cashier.
{¶ 16} 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
No. 16AP-49 6
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.
{¶ 17} Pursuant to the above-cited authority, and because relator has failed to file a
cashier statement which complies with the requirements of R.C. 2969.25(C), and relator
cannot cure these deficiencies at a later date, dismissal of the complaint is warranted.
{¶ 18} Further, pursuant to the above authority, inasmuch as relator did not
prevail and did not establish his indigency, this court should order him to pay the costs of
the proceedings.
{¶ 19} The magistrate, accordingly, recommends that the court dismiss the action.
/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).