State ex rel. Swain v. Ohio Adult Parole Auth. , 2017 Ohio 517 ( 2017 )

[Cite as State ex rel. Swain v. Ohio Adult Parole Auth., 2017-Ohio-517.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Sean Swain, :
Relator, :
v. : No. 16AP-519
The Ohio Adult Parole Authority et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on February 14, 2017
Sean Swain, pro se.
Ron O'Brien, Prosecuting Attorney, and Thomas C. Miller,
for respondents.
IN MANDAMUS
ON OBJECTIONS TO MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Sean Swain, commenced this original action in mandamus seeking
an order compelling respondents, the Ohio Adult Parole Authority and the Ohio
Department of Rehabilitation and Correction, to expunge his records of allegedly
inaccurate information and to rehear relator's parole eligibility determination.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that
relator failed to comply with R.C. 2969.25(C) because he failed to provide with his
affidavit of indigency that was filed with his complaint a statement of the amount in his
inmate account for each of the preceding six months as certified by the institutional
No. 16AP-519 2
cashier. Therefore, the magistrate has recommended that this court sua sponte dismiss
this action.
{¶ 3} Relator has filed objections to the magistrate's decision. In his objections,
relator argues that subsequent to the filing of his complaint and affidavit of indigency, he
filed an affidavit authenticating two requests for the prison cashier to send a six-month
statement to the court. The record also reflects that approximately two weeks after relator
filed his complaint, relator filed statements for his prison account covering the past six
months. In essence, it appears that relator is attempting to retroactively comply with the
requirements of R.C. 2969.25(C). Relator's argument is not supported by Ohio law.
{¶ 4} As noted by the magistrate, an inmate who seeks waiver of prepayment of
the filing fee on the ground of indigency must file with the complaint 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. R.C. 2969.25(C). Compliance with the
provisions of R.C. 2969.25 is mandatory and the failure to satisfy the requirements is
ground for dismissal of the action. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492,
2006-Ohio-1507, ¶ 5-7; State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-
Ohio-854, ¶ 5-6.
{¶ 5} Our review of the record indicates that relator failed to file with his
complaint and affidavit of indigency the documents required by R.C. 2969.25(C). Relator
cannot cure this deficiency by attempting to comply with the statutory requirements after
the fact. For this reason, we overrule relator's objections. We agree with the magistrate's
recommendation to sua sponte dismiss relator's complaint due his failure to comply with
R.C. 2969.25(C).
{¶ 6} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we sua sponte dismiss
this action. Relator's remaining pending motions are thereby rendered moot.
Case dismissed.
LUPER SCHUSTER and BRUNNER, JJ., concur.
No. 16AP-519 3
No. 16AP-519 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Sean Swain, :
Relator, :
v. : No. 16AP-519
The Ohio Adult Parole Authority, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on July 29, 2016
Sean Swain, pro se.
Ron O'Brien, Prosecuting Attorney, and Jason S. Wagner,
for respondent.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
{¶ 7} Relator, Sean Swain, has filed this original action requesting that this court
issue a writ of mandamus ordering the Ohio Adult Parole Authority and the Ohio
Department of Rehabilitation and Correction to "expunge [his] records of inaccurate
information * * * and to re-hear relator's prior parole eligibility hearings in which
inaccurate information was relied upon, providing Relator a meaningful opportunity for
parole based upon accurate factual findings."
No. 16AP-519 5
Findings of Fact:
{¶ 8} 1. Relator is an inmate currently incarcerated at Warren Correctional
Institution.
{¶ 9} 2. On July 14, 2016, relator filed this mandamus action.
{¶ 10} 3. At the time he filed his action, relator did file a prior actions affidavit.
{¶ 11} 4. At the time he filed his mandamus action, relator filed a motion to
proceed in forma pauperis; however, relator failed to provide the relevant information,
failed to ask for a waiver of the prepayment of fees, and failed to include a statement in his
inmate account for each of the preceding six months, as certified by the institutional
cashier.
Conclusions of Law:
{¶ 12} 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).
{¶ 13} 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 the
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.
{¶ 14} 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).
{¶ 15} 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:
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. 16AP-519 6
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.
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.
{¶ 16} 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 prison cashier.
{¶ 17} 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, P 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."
No. 16AP-519 7
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."
Id. at ¶ 5-6.
{¶ 18} Pursuant to the above-cited authority and because relator cannot cure this
deficiency now or at a later date, it is this magistrate's decision that this court should
dismiss relator's complaint. 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).