State ex rel. Ware v. Ferrero

[Cite as State ex rel. Ware v. Ferrero, 2019-Ohio-3849.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL. KIMANI E. WARE JUDGES:
Hon. William B. Hoffman, P.J
Relator Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2019CA00079
JOHN D. FERRERO, PROSECUTOR,
et al.,
Respondents O P I N IO N
CHARACTER OF PROCEEDINGS: WRIT OF MANDAMUS
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 23, 2019
APPEARANCES:
For Relator For Respondents
KIMANI WARE JOHN D. FERRERO
Inmate #A470743 Stark County Prosecuting Attorney
Trumbull Correctional Institute
P.O. Box 901 DAVID E. DEIBEL
Leavittsburg, Ohio 44430 Assistant Prosecuting Attorney
Civil Division
110 Central Plaza South, Suite 510
Canton, Ohio 44702
Stark County, Case No. 2019CA00079 2
Hoffman, P.J.
{¶1} On July 30, 2019, Kimani Ware filed a petition for writ of mandamus to
compel the Stark County Prosecutor, John D. Ferrero, and assistant prosecuting
attorneys, Deborah A. Dawson and David E. Deibel, to respond to his public records
request served on the Stark County Prosecutor’s Office, by certified mail, on February 28,
2019. Mr. Ware requested the following public records: (1) all calendars of Stark County
Prosecutors, Ferrero, Dawson and Deibel from January 1, 2019 through February 15,
2019; (2) personnel files of Dawson, Deibel, and Cheryl Parsons; (3) copies of the Stark
County Prosecutor’s employee handbook and public records request poster; (4)
performance evaluation forms for Dawson, Deibel, and Parsons; (5) copies of the Stark
County Prosecutor’s office’s policies, public records policy, records retention schedule,
and records retention policy; and (6) copies of Prosecutor Ferrero’s certificate of election,
oath of office, and the Stark County Prosecutor’s office organizational chart.
{¶2} For a writ of mandamus to issue, the Relator must have a clear legal right
to the relief prayed for, the Respondent must be under a clear legal duty to perform the
requested act, and Relator must have no plain and adequate remedy in the ordinary
course of law. (Citations omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28,
29, 451 N.E.2d 225 (1983). Prosecutor Ferrero has moved to dismiss Mr. Ware’s writ
under Civ.R. 12(B)(6).
{¶3} The Court grants Prosecutor Ferrero’s motion because Mr. Ware failed to
satisfy the statutory requirements of R.C. 2969.25. This statute contains specific filing
requirements for inmates who file a civil action against a government employee or entity.
The statutory requirements of R.C. 2969.25 apply here because Prosecutor Ferrero and
the employees of the prosecutor’s office are “government employees” and the Stark
Stark County, Case No. 2019CA00079 3
County Prosecutor’s Office is a “government entity” as those terms are defined under
R.C. 2969.21(B)(1)(a) and (C). Further, Mr. Ware is incarcerated in the Trumbull
Correctional Institution and therefore satisfies the definition of “inmate” under R.C.
2969.21(D).
{¶4} Under R.C. 2969.25(A), an inmate who files a civil action or appeal against
a government entity or employee “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.” An inmate is required to strictly comply
with the statute. State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d
408, 2019-Ohio-1271, ¶6. The affidavit must contain certain information, including:
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.
{¶5} R.C. 2969.25(A)(4)
{¶6} Failure to follow the mandatory requirements of R.C. 2969.25(A) in the
commencement of an action requires dismissal. State ex rel. Graham v. Findlay Mun.
Court, 106 Ohio St.3d 63, 2005-Ohio-3671, ¶6. (“The requirements of R.C. 2969.25 are
Stark County, Case No. 2019CA00079 4
mandatory, and failure to comply with them subjects an inmate’s action to dismissal.”)
See also State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, ¶4. Further, the
Ohio Supreme Court recently reaffirmed the mandatory nature of the statute in Swanson,
where the Court dismissed a mandamus action because the inmate failed to include in
his affidavit a mandamus action that he had filed two weeks earlier. Swanson, 2019-Ohio-
1271, at ¶7.
{¶7} Here, Mr. Ware attached an affidavit to his petition in which he identified
eight prior civil actions. In all eight of the identified civil actions, Mr. Ware failed to provide
the outcome for any of the listed civil actions, and in two of the listed civil actions (Case
No. 19AP161, Tenth District Court of Appeals and Case No. CA-29344, Ninth District
Court of Appeals), he failed to describe the nature of the two civil actions. Mr. Ware
contends, in his reply to the motion to dismiss, that he satisfied the requirements of R.C.
2969.25(A)(4) because he stated, at the bottom of the affidavit: “No civil action filed by
mentioned above were never (sic) deemed by any court as frivolous or malicious.”
However, this statement does not address the deficiencies noted above.
{¶8} Mr. Ware’s affidavit does not comply with the mandatory requirements of
R.C. 2969.25(A) and therefore, this case is dismissed.
Stark County, Case No. 2019CA00079 5
{¶9} The clerk of courts is hereby directed to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle J. concur