State ex rel. Ware v. Bur. of Sentence Computation , 2020 Ohio 2695 ( 2020 )

[Cite as State ex rel. Ware v. Bur. of Sentence Computation, 2020-Ohio-2695.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Kimani Ware, :
Relator, :
v. : No. 19AP-841
Bureau of Sentence Computation Office, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on April 28, 2020
Kimani Ware, pro se.
IN MANDAMUS
ON RELATOR'S OBJECTION TO MAGISTRATE'S DECISION
BRUNNER, J.
{¶ 1} Relator, Kimani Ware, pro se, an inmate of the Trumbull Correctional
Institution ("TCI"), filed this original action for a writ of mandamus seeking an order that
respondent, Bureau of Sentence Computation ("BOSC"), provide him with public records
he requested under Ohio's Public Records Act, R.C. 149.43. Having referred Ware's
complaint to a magistrate of this Court under Civ.R. 53, we modify and adopt the
magistrate's decision and sua sponte dismiss the action, additionally denying Ware's
motion for default judgment as moot.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Ware filed his complaint in mandamus on December 16, 2019. At the time
Ware filed this action, he submitted an affidavit of prior civil actions that purported to
satisfy the requirements of R.C. 2969.25(A) and an affidavit of indigency that purported to
satisfy the requirements R.C. 2969.25(C).
No. 19AP-841 2
{¶ 3} This Court referred Ware's complaint to a magistrate according to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. On January 22, 2020, the
magistrate issued a decision, including findings of facts and conclusions of law, which is
appended to this decision. The magistrate recommends this Court sua sponte dismiss
Ware's action because Ware failed to satisfy the mandatory filing requirements of R.C.
2969.25(C)(1), which requires a statement setting forth the balance in Ware's inmate
account for each of the six months preceding the filing of his complaint. The magistrate
further recommended that, inasmuch as Ware does not prevail, not having established
indigency, this Court should order him to pay the costs of these proceedings.
{¶ 4} Also on January 22, 2020, the magistrate issued an order denying as moot
BOSC's motion, filed January 21, 2020, for an extension of time in which to file an answer
to Ware's complaint.
{¶ 5} On January 27, 2020, Ware filed a motion for default judgment against
BOSC. This Court issued an entry stating that Ware's motion for default judgment would
be submitted to the Court at such time as the Court reviewed the magistrate's decision.
{¶ 6} Ware filed an objection to the magistrate's decision.
II. OBJECTION
{¶ 7} Ware presents a sole objection to the magistrate's decision:
The magistrate erred by failing to properly review the Cashier's
statement submitted by [Ware] and [Ware's] attached affidavit.
III. LAW AND DISCUSSION
A. Objection
{¶ 8} 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.
{¶ 9} While Ware did provide an affidavit of indigency and a certified cashier
statement of his inmate account, the statement does not set forth the account balance for
each of the six months preceding the filing of this action, as required by R.C. 2969.25(C)(1).
Specifically, the cashier statement contains only a summary of Ware's inmate account for
the six-month period ending December 13, 2019. Furthermore, the affidavit did not
address all other cash and things of value owned by Ware. Failure to comply fully with R.C.
No. 19AP-841 3
2969.25(C)(1) warrants dismissal of the complaint. State ex rel. Pamer v. Collier, 108 Ohio
Std.3d 492, 2006-Ohio-1507, ¶ 5.
{¶ 10} Further, based on our examination of the record, we find that Ware's list of
prior civil actions fails to meet all four requirements of R.C. 2969.25(A), which are 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.
{¶ 11} Although Ware's list of cases provides the name of the case, the case number,
the court in which it was filed, and the status, Ware did not provide a brief description of
the nature of the cases. As a result, we conclude Ware has failed to meet all the
requirements of R.C. 2969.25(A)(1), and dismissal of the complaint is proper because the
requirements of the statute were not fully met. Watley v. Coval, 10th Dist. No. 03AP-829,
2004-Ohio-1734, ¶ 7, citing State ex rel. White v. Mack, 93 Ohio St. 3d 572, 573 (2001);
State ex rel. Akbar-El v. Cuyahoga Cty. Court of Common Pleas, 94 Ohio St. 3d 210
(2002).
No. 19AP-841 4
{¶ 12} Accordingly, we modify the magistrate's decision to include our finding and
conclusion that Ware's affidavit of prior civil actions fails to satisfy the requirements of R.C.
2969.25(A)(1).
{¶ 13} We agree with the magistrate that Ware failed to comply with the mandatory
requirements of R.C. 2969.25, and his petition for a writ of mandamus warrants dismissal.
Ware's objection is overruled.
B. Motion for Default Judgment
{¶ 14} Because we have modified and adopted the magistrate's decision and dismiss
sua sponte Ware's complaint, Ware's motion for default judgment against BOSC is denied
as moot.
IV. CONCLUSION
{¶ 15} Having modified the findings of fact and conclusions of law in the
magistrate's decision with regard to Ware's failure to satisfy the requirement of R.C.
2969.25(A)(1), we adopt the magistrate's decision as our own. Having conducted an
independent review of the record, the applicable law, our magistrate's decision, and Ware's
objection, we overrule Ware's objection and dismiss this action sua sponte. Additionally,
Ware's motion for default judgment against BOSC is denied as moot. Finally, inasmuch as
Ware did not prevail and did not establish indigency, this Court orders him to pay the costs
of these proceedings.
Relator's objection overruled;
petition for writ of mandamus dismissed;
relator's motion for default judgment moot;
relator ordered to pay costs of these proceedings.
DORRIAN and BEATTY BLUNT, JJ., concur.
No. 19AP-841 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Kimani Ware, :
Relator, :
v. : No. 19AP-841
Bureau of Sentence Computation Office, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on January 22, 2020
Kimani Ware, pro se.
IN MANDAMUS
ON SUA SPONTE DISMISSAL
{¶ 16} Relator, Kimani Ware, has filed this original action requesting this court issue
a writ of mandamus ordering respondent Bureau of Sentence Computation Office("BOSC")
to provide him with public records which he requested pursuant to Ohio's Public Records
Act R.C. 149.43.
Findings of Fact:
{¶ 17} 1. Relator is an inmate currently incarcerated at Trumbull Correctional
Institution.
{¶ 18} 2. Relator filed this mandamus action on December 16, 2019.
{¶ 19} 3. At the time he filed this original action, relator did file an affidavit of
indigency; however, relator failed to attach thereto a statement of the amount in his inmate
No. 19AP-841 6
account for each of the preceding six months as certified by the institutional cashier and a
statement of all other cash and things of value he owns.
Conclusions of Law:
{¶ 20} The magistrate recommends this court sua sponte dismiss this action because
relator has failed to comply with the requirements of R.C. 2969.25(C).
{¶ 21} 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 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.
{¶ 22} Compliance with the provisions of R.C. 2969.25 is mandatory and 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).
{¶ 23} 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:
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
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. 19AP-841 7
rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio
St.3d 195, 2005-Ohio-6184, 837 N.E.2d 777, ¶ 5.
Id. at ¶ 5-7.
{¶ 24} 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 institutional
cashier.
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
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.
{¶ 25} Pursuant to the above-cited authority and because relator cannot cure this
deficiency now or at a later date, it is the 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
No. 19AP-841 8
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).