State ex rel. Jones v. Franklin Cty. Common Pleas Court Adm. Judge , 2022 Ohio 1296 ( 2022 )

[Cite as State ex rel. Jones v. Franklin Cty. Common Pleas Court Adm. Judge, 2022-Ohio-1296.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Antonio Jones, :
Relator, :
v. : No. 21AP-662
Franklin County Common Pleas : (REGULAR CALENDAR)
Court Administrative Judge,
:
Respondent.
:
D E C I S I O N
Rendered on April 19, 2022
Antonio Jones, pro se.
IN PROCEDENDO
ON OBJECTION TO THE MAGISTRATE'S DECISION
NELSON, J.
{¶ 1} Relator Antonio Jones, an inmate at Chillicothe Correctional Institution, has
filed an original action requesting a writ of procedendo ordering respondent, Judge
Stephen McIntosh of the Franklin County Court of Common Pleas, to rule on a pending
motion in Franklin C.P. No. 20CV-1621.
{¶ 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. The magistrate recommends that this
court of its own accord dismiss Mr. Jones's action for failure to comply with the mandatory
requirements of R.C. 2969.25(A). Specifically, the magistrate finds that Mr. Jones has
"commenced at least one civil action in the prior five years (the action to which he wishes
this court to direct a writ) and failed to provide an R.C. 2969.25(A) affidavit when filing his
No. 21AP-662 2
complaint in this court." (Mag.'s Decision, App'x at ¶ 16.) The magistrate therefore
determines that Mr. Jones's "complaint must be dismissed." Id.{¶ 3} Mr. Jones objects to the magistrate's decision, asserting that he "did not need
to file a R.C. 2969.25(A) document because this was not a civil matter." (Relator's Obj. at
1.) He acknowledges that he "completely understands that a R.C. 2969.25 affidavit is
suppose[d] to be filed at the time a[n] inmate commence[s] a civil filing"; he "states that
one was drafted up and given to staff at the time the document was mailed," but that he
does not "know how such document did not accompany the writ." Id. at 2.
{¶ 4} R.C. 2969.25(A) provides in part: "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." Such
affidavit must include "the following information for each of those civil actions or appeals:
(1) a brief description of the nature of the civil action or appeal, (2) the case name, case
number, and the court in which the civil action or appeal was brought, (3) the name of each
party to the civil action or appeal, and (4) the outcome of the civil action or appeal." State
ex rel. Harsh v. Mohr, 10th Dist. No. 13AP-403, 2013-Ohio-4218, ¶ 4, citing R.C.
2969.25(A)(1) through (4).
{¶ 5} Under Ohio law, "[t]he 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, ¶ 5, citing State ex rel. Alford v. Winters, 80
Ohio St.3d 285, 286 (1997). See also Arega v. Coleman, 1oth Dist. No. 15AP-629, 2015-
Ohio-5242, ¶ 11.
{¶ 6} Mr. Jones's underlying action in the court of common pleas involves an
"affidavit by accusation," seeking the arrest of a private citizen pursuant to R.C. 2935.09(D).
Even accepting Mr. Jones's contention that his underlying action is not a "civil matter," see,
e.g., State v. Fraley, 12th Dist. No. CA2019-09-072, 2020-Ohio-3763, ¶ 25 (characterizing
a proceeding under R.C. 2935.09(D) as a "proto-criminal action, a statutory stage that
precedes the potential commencement of a criminal action"), we take judicial notice of the
fact Mr. Jones has filed several civil actions within the past five years. These include cases
in this court. See, e.g., State ex rel. Jones v. McIntosh, 10th Dist. No. 19AP-32, 2019-Ohio-
No. 21AP-662 3
3865 (dismissing as moot relator's original action requesting writ of procedendo); State ex
rel. Jones v. Hogan, 10th Dist. No. 20AP-319, 2021-Ohio-526 (dismissing relator's original
action requesting writ of mandamus and prohibition); State v. Jones, 10th Dist. No. 18AP-
578, 2019-Ohio-1014 (affirming denial of successive motion for postconviction relief); State
ex rel. Jones v. Court of Common Pleas, 10th Dist. No. 16AP-25, 2016-Ohio-8342 (denying
relator's request for writ of mandamus to compel respondent judge to rule on petition for
postconviction relief).
{¶ 7} Notwithstanding the magistrate's focus on the underlying "action to which
[Mr. Jones] wishes this court to direct a writ," we agree with the magistrate's ultimate
determination that Mr. Jones has commenced at least one civil action or appeal in the five
years preceding the action we address here and, therefore, that Mr. Jones's failure to
provide an affidavit as required by R.C. 2969.25(A) warrants dismissal. Accordingly, we
modify the magistrate's decision to reflect our judicial notice that Mr. Jones has failed to
list all civil actions filed in the last five years. Mr. Jones's objection, based on the claim that
he was not required to file an R.C. 2969.25(A) affidavit, is overruled.
{¶ 8} Upon independent review of the record, we adopt the magistrate's decision
as modified, including the findings of fact and conclusions of law. In accordance with that
modified decision, and having overruled relator Jones's objection, we dismiss this action
sua sponte.
Relator's objection overruled; action dismissed.
SADLER and JAMISON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
______________________
No. 21AP-662 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Antonio Jones, :
Relator, :
v. : No. 21AP-662
Franklin County Common Pleas : (REGULAR CALENDAR)
Court Administrative Judge,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on December 13, 2021
Antonio Jones, pro se.
IN PROCEDENDO
ON SUA SPONTE DISMISSAL
{¶ 9} Relator, Antonio Jones, an inmate in the custody of the Ohio Department of
Rehabilitation and Corrections, commenced this original action seeking a writ of
procedendo ordering respondent, Judge Stephen McIntosh of the Franklin County Court
of Common Pleas, to rule on a pending motion in case No. 20CV-1621. The magistrate sua
sponte dismisses relator's complaint for failure to comply with the inmate-litigant filing
requirements of R.C. 2969.25(A).
Findings of Fact:
{¶ 10} 1. Relator filed his complaint in procedendo in this court on December 9,
2021. The complaint alleges that respondent has unreasonably delayed ruling on a motion
filed by relator in case No. 20CV-1621.
No. 21AP-662 5
{¶ 11} 2. Relator's complaint attaches an affidavit of indigency seeking a waiver of
filing fees.
{¶ 12} 3. Relator's complaint does not include an affidavit to comply with the inmate
filing requirements of R.C. 2969.25(A) listing all civil actions and appeals filed by relator in
the previous five years.
Discussion and Conclusions of Law:
{¶ 13} The magistrate sua sponte dismisses this action for failure to comply with
R.C. 2969.25(A), which imposes clear requirements on inmates commencing a civil action
or appeal. R.C. 2969.25(A) states as follows:
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
affidavit shall include all of the following for each of those civil
actions or appeals:
(1) A brief description of the nature of the civil action or
appeal;
(2) The case name, case number, and the court in which the
civil action or appeal was brought;
(3) The name of each party to the civil action or appeal;
(4) 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.
{¶ 14} Thus, R.C. 2969.25(A) requires an inmate to file an affidavit listing each civil
action or appeal of a civil action he has filed in the previous five years in any state or federal
court, as well as information regarding the outcome. This court has noted that
" '[c]ompliance with R.C. 2969.25(A) is mandatory and failure to comply subjects an
inmate's action to dismissal.' " Arega v. Coleman, 10th Dist. No. 15AP-629, 2015-Ohio-
No. 21AP-662 6
5242, ¶ 11, quoting Morris v. Franklin Cty. Court of Common Pleas, 10th Dist. No. 05AP-
596, 2005-Ohio-6306, ¶ 6. Further, "the affidavit required by R.C. 2969.25(A) must be filed
at the time an inmate commences the civil action or appeal," and the "belated attempt to
file the required affidavit does not excuse noncompliance." State ex rel. Evans v. Ohio Adult
Parole Auth., 10th Dist. No. 10AP-730, 2011-Ohio-2871, ¶ 4.
{¶ 15} If the inmate has no prior civil actions to list, no R.C. 2969.25(A) affidavit
need be filed. In such cases, however, the inmate must file a statement with his complaint
declaring that there are no prior civil actions to list. Failure to include such a statement is
grounds for dismissal under the same conditions as an incomplete or absent affidavit where
one would be required. Kachermeyer v. Tolson, 10th Dist. No. 01AP-1186 (April 30, 2002).
{¶ 16} As set forth in the facts above, it is beyond dispute in the present case that
relator commenced at least one civil action in the prior five years (the action to which he
wishes this court to direct a writ) and failed to provide an R.C. 2969.25(A) affidavit when
filing his complaint in this court. The magistrate therefore finds that relator's complaint
must be dismissed.
/S/ MAGISTRATE
MARTIN L. DAVIS
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).