State ex rel. Thomas v. Dept. of Rehab. & Corr.

[Cite as State ex rel. Thomas v. Dept. of Rehab. & Corr., 2019-Ohio-386.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. :
Shawn Thomas,
:
Relator,
:
v. No. 18AP-535
:
Ohio Department of Rehabilitation (REGULAR CALENDAR)
and Correction, :
Respondent. :
D E C I S I O N
Rendered on February 7, 2019
Shawn Thomas, pro se.
[Dave Yost], Attorney General, and Jared S. Yee, for
respondent.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
BRUNNER, J.
{¶ 1} Relator, Shawn Thomas, an inmate of the Richland Correctional Institution,
commenced this original action requesting a writ of mandamus ordering respondent, Ohio
Department of Rehabilitation and Correction ("ODRC"), to vacate the finding of a prison
hearing officer that Thomas was guilty of violating a prison rule. For the reasons that
follow, we adopt the magistrate's decision and sua sponte dismiss this action.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Thomas filed his complaint in mandamus on July 5, 2018. On July 30, 2018,
ODRC filed a motion to dismiss for failure to state a claim upon which relief can be granted.
ODRC further requested that Thomas be assessed the costs of this action. On August 14,
2018, Thomas filed a document captioned "Relator's Opposition Against Motion to
Dismiss."
No. 18AP-535 2
{¶ 3} This Court referred this matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. On August 14, 2018, the magistrate
issued a decision, including findings of facts and conclusions of law. The magistrate
determined that Thomas had failed to file with his complaint a statement of the institutional
cashier that fully complied with R.C. 2969.25(C)(1), which requires a statement setting
forth the balance in Thomas' inmate account for each of the six months preceding the filing
of his complaint. The magistrate concluded Thomas had failed to satisfy the mandatory
filing requirements of R.C. 2969.25(C)(1) and recommended sua sponte dismissal of this
action.
{¶ 4} Also on August 14, 2018, the magistrate issued an order denying ODRC's
motion to dismiss on the basis of mootness.
{¶ 5} Thomas filed no objections to the magistrate's decision.
II. LAW AND DISCUSSION
{¶ 6} It is well-settled that compliance with the requirements of R.C. 2969.25 is
mandatory and cannot be cured after-the-fact. State ex rel. Hall v. Mohr, 140 Ohio St. 3d
297, 2014-Ohio-3735, ¶ 4. Failure to comply fully with R.C. 2969.25(C)(1) warrants
dismissal of the complaint. State ex rel. Pamer v. Collier, 108 Ohio Std.3d 492, 2006-Ohio-
1507, ¶ 5.
{¶ 7} While Thomas did provide an affidavit of indigency and a statement of his
inmate account, the statement does not set forth the balance of his inmate account for each
of the preceding six months, as required by the statute. Specifically, it covers the month of
June only through June 6, 2018, while his petition was filed in July 2018 less than one
month after the final accounting date in the statement. Unfortunately, the language in the
statute is mandatory and renders his petition inadequate for our review and consideration.
"When the petitioner's cashier statement does not set forth the account balance for the
month immediately preceding [petitioner's] mandamus complaint, his failure to comply
with R.C. 2969.25(C)(1) warrants dismissal of the complaint." Al'Shahid v. Cook, 144 Ohio
St.3d 15, 2015-Ohio-2079, ¶ 10, citing State ex rel. Pamer at ¶ 5, citing State ex rel. Foster
v. Belmont Cty. Court of Common Pleas, 107 Ohio St. 3d 195, 2005-Ohio-6184, ¶ 5.
{¶ 8} Thomas failed to comply with the mandatory requirements of R.C.
2969.25(C)(1), and his petition for a writ of mandamus warrants dismissal.
No. 18AP-535 3
III. CONCLUSION
{¶ 9} Finding no error of law or other defect on the face of the magistrate's decision,
we adopt the decision as our own, including the findings of fact and conclusions of law
contained therein. On review of the magistrate's decision, an independent review of the
record and the applicable law, we dismiss this action sua sponte. Inasmuch as Thomas did
not prevail and did not establish indigency, this Court orders him to pay the costs of the
proceedings.
Petition for writ of mandamus dismissed;
motion to dismiss moot.
DORRIAN and LUPER SCHUSTER, JJ., concur.
______________________
No. 18AP-535 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. :
Shawn Thomas,
:
Relator,
:
v. No. 18AP-535
:
Ohio Department of Rehabilitation (REGULAR CALENDAR)
and Correction, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on August 14, 2018
Shawn Thomas, pro se.
Michael DeWine, Attorney General, and Jared S. Yee, for
respondent.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
{¶ 10} In this original action, relator, Shawn Thomas, an inmate of the Richland
Correctional Institution ("RCI"), requests a writ of mandamus ordering respondent, Ohio
Department of Rehabilitation and Correction ("ODRC"), to vacate the finding of a prison
hearing officer that found relator guilty of violating a prison rule.
Findings of Fact:
{¶ 11} 1. On July 5, 2018, relator, an RCI inmate, filed this original action against
respondent.
{¶ 12} 2. Relator has not deposited with the clerk of this court the monetary sum
required as security for the payment of costs. See Loc.R. 13(B) of the Tenth District Court
of Appeals.
No. 18AP-535 5
{¶ 13} 3. With his complaint, relator did file a document captioned "Financial
Disclosure/Affidavit of Indigency."
{¶ 14} 4. With his complaint, relator also submitted a six-page document captioned
"Richland Correctional Institution, Inmate Demand Statement" ("IDS").
{¶ 15} The IDS presents a "Date Range: 01/01/2018 through 06/06/2018."
Thereunder, the IDS presents transaction entries beginning with the first entry on January
1, 2018 and ending with the last entry on June 1, 2018.
{¶ 16} Some 72 entries are listed in chronological order. In the last entry on June 1,
2018, $0.62 is listed as the "Saving Balance."
Conclusions of Law:
{¶ 17} It is the magistrate's decision that this court sua sponte dismiss this action
for relator's failure to satisfy the mandatory filing requirements set forth at
R.C. 2969.25(C).
R.C. 2969.25(C) provides:
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.
{¶ 18} In State ex rel. Pamer v. Collier, 108 Ohio St. 3d 492, 2006-Ohio-1507, the
Supreme Court of Ohio had occasion to apply R.C. 2969.25(C)(1) to the cashier statement
at issue in that case. George D. Pamer had filed a mandamus action on September 19, 2005
in the Court of Appeals for Medina County. In affirming the judgment of the Medina
County Court of Appeals, the Supreme Court explained:
Pamer moved for waiver of the prepayment of fees to file his
mandamus action and submitted an affidavit of indigency and
No. 18AP-535 6
a statement certified by his prison cashier showing his inmate
account for the period from March 1, 2005, through August 1,
2005.
On October 14, 2005, the court of appeals dismissed Pamer's
complaint for failure to comply with the requirements of R.C.
2969.25(C). The court of appeals also ordered Pamer to pay
costs.
We affirm the judgment of the court of appeals. 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, P5.
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 he 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, 2001 Ohio 197, 750 N.E.2d 164; Civ.R. 54(D).
Id. at 493.
{¶ 19} The Pamer case is instructive here.
{¶ 20} Because relator filed this original action on July 5, 2018, he was required by
R.C. 2969.25(C) to file with his complaint a statement of the institutional cashier setting
forth the balance in his inmate account "for each of the preceding six months," which
includes June 2018. However, as indicated by the so-called "Date Range," only entries
through June 6, 2018 are included in the IDS.
No. 18AP-535 7
{¶ 21} Based on Pamer, the magistrate concludes that relator failed to satisfy the
mandatory filing requirements of R.C. 2969.25(C)(1). See Al'Shahid v. Cook, 144 Ohio
St.3d 15, 2015-Ohio-2079.
{¶ 22} Accordingly, it is the magistrate's decision that this court sua sponte dismiss
this action.
/S/ MAGISTRATE
KENNETH W. MACKE
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).