Opinion
23AP-156
01-04-2024
State ex rel. Anthony Walker, Relator, v. J. Bolin, Ohio [Department] of Rehabilitation and Correction, Bureau of Sentence Computation, Respondent. 2024-Ohio-20
On brief: Anthony Walker, pro se. On brief: Dave Yost, Attorney General, and Jennifer A. Driscoll, for respondent.
Rendered on June 27, 2023
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
On brief: Anthony Walker, pro se.
On brief: Dave Yost, Attorney General, and Jennifer A. Driscoll, for respondent.
DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Anthony Walker, an inmate incarcerated at Grafton Correctional Institution, has filed an original action requesting this court issue an order directing respondent, J. Bolin, Ohio Department of Rehabilitation and Correction, Bureau of Sentence Computation, to correctly determine his first parole board hearing date based on the jail-time credit calculated by the sentencing court. Respondent filed a motion to dismiss arguing relator failed to comply with the mandatory requirements of R.C. 2969.25.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate determined that relator failed to submit a cashier's statement compliant with R.C. 2969.25(C) and therefore recommended this court grant respondent's motion and dismiss this action. Pursuant to Civ.R. 53(D)(3)(b), relator filed objections to the magistrate's decision.
{¶ 3} In his objections, relator asserts the magistrate's findings of fact failed to include a finding that relator filed a memorandum contra respondent's motion to dismiss, a motion for leave to replace cashier's certification, a motion to order compliance, and supporting documentation, including his affidavit explaining that his noncompliance with R.C. 2969.25(C) was due to the institutional cashier unilaterally substituting a noncompliant form. As to the magistrate's conclusions of law, relator argues the magistrate erred in finding dismissal for noncompliance with R.C. 2969.25(C) is appropriate because the magistrate did not properly account for the basis of that noncompliance, as explained in his affidavit. Relator also objects to the magistrate summarily denying all other pending motions. He argues the magistrate should have addressed his request to order the institutional cashier to comply with the law. We are unpersuaded.
{¶ 4} Respondent's motion presents the issue of whether dismissal of this action is appropriate based on relator not complying with R.C. 2969.25(C). Under R.C. 2969.25(C), an inmate who initiates a civil action and seeks waiver of prepayment of filing fees 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. Compliance with the requirements of R.C. 2969.25(C) is mandatory, and failure to comply warrants dismissal. Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859, ¶ 1. Substantial compliance with the requirements of R.C. 2969.25(C) is not sufficient. State ex rel. McGlown v. Mohr, 10th Dist. No. 14AP-478, 2015-Ohio-1554, ¶ 9, citing State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4. Further, the requirements of R.C. 2969.25(C) must be met at the time of the filing of the complaint; delayed filing is not permitted by the statute. Boles at ¶ 2; State ex rel. Jones v. Franklin Cty. Court of Common Pleas, 10th Dist. No. 20AP-203, 2021-Ohio-133, ¶ 5; see State ex rel Brown v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-332, 2011-Ohio-5401, ¶ 7 (stating that "[e]ven an attempt to later correct the deficiencies with the documents necessary to satisfy R.C. 2969.25(C) fails," because such "documents must be filed at the time the complaint is filed").
{¶ 5} In challenging the magistrate's decision, relator does not object to the magistrate's conclusion that he failed to comply with the requirements of R.C. 2969.25(C). Instead, the core premise of relator's challenge is his contention that he was not at fault in not complying with those statutory requirements. He places blame on others for the failure of the institutional cashier to complete the necessary paperwork as he requested. More specifically, he asserts the institutional cashier, at the direction of the Ohio Attorney General's Office, unilaterally substituted and completed a noncompliant form in lieu of the compliant form he submitted. As the magistrate correctly noted, however, the reason for relator's failure to comply with R.C. 2969.25(C) is not considered in determining the appropriateness of dismissal for that failure to comply. Neither R.C. 2969.25(C) nor any case law provides for an exception based on the reason for the noncompliance. See State ex rel. Keith v. Ohio Adult Parole Auth., 10th Dist. No. 17AP-583, 2018-Ohio-1711, ¶ 7 (dismissing inmate's mandamus action for noncompliance with the mandatory requirements of R.C. 2969.25(C) despite relator's allegation that the respondent had deliberately undermined his compliance efforts). Thus, the magistrate properly concluded that dismissal is appropriate, and respondent's motion should be granted. And based on the dismissal, the other pending motions are denied. Nonetheless, we, like the magistrate, note that relator's allegation of the institutional cashier unilaterally substituting a noncompliant form is concerning, if true. But insofar as relator alleges noncompliance with a legal duty as to the preparation of an institutional cashier's statement, the pending mandamus action, requesting an order directing respondent to correctly determine relator's first parole board hearing date, is not the appropriate action to litigate that allegation.
{¶ 6} Upon our review of the magistrate's decision and of the record, we find the magistrate has properly discerned the relevant facts and applied the pertinent law to those facts. We therefore overrule relator's objections to the magistrate's decision and adopt that decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's decision, we grant respondent's motion and dismiss this action. Objections overruled; motion to dismiss granted; case dismissed.
BOGGS and LELAND, JJ., concur.
APPENDIX
IN MANDAMUS ON RESPONDENT'S MOTION TO DISMISS
MAGISTRATE'S DECISION
THOMAS W. SCHOLL III, MAGISTRATE
{¶ 7} Relator, Anthony Walker, has filed this original action requesting that this court issue a writ of mandamus, alleging that respondent, J. Bolin, Ohio Department of Rehabilitation and Correction, Bureau of Sentence Computation, failed to properly calculate his first parole board hearing based upon the application of the credit properly calculated by the trial court.
Findings of Fact:
{¶ 8} 1. At the time of the filing of his complaint, relator was an inmate incarcerated at Grafton Correctional Institution, in Grafton, Ohio.
{¶ 9} 2. Respondent is a governmental agency responsible for computing release dates for Ohio inmates.
{¶ 10} 3. On March 9, 2023, relator filed a petition for writ of mandamus, alleging that respondent failed to properly calculate his first parole board hearing based on the application of the credit properly calculated by the trial court. Relator filed a motion for leave to proceed in forma pauperis with his petition, as well as a cashier's statement of relator's inmate account with accompanying affidavit of indigency.
{¶ 11} 4. On March 31, 2023, respondent filed a motion to dismiss relator's petition for writ of mandamus, arguing that relator's petition did not comply with the requirements in R.C. 2969.25(C). Conclusions of Law:
{¶ 12} The magistrate recommends that this court grant respondent's motion to dismiss relator's petition for writ of mandamus.
{¶ 13} In order for this court to issue a writ of mandamus, a relator must ordinarily show a clear legal right to the relief sought, a clear legal duty on the part of the respondent to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A relator bears the burden of persuasion to show entitlement to a writ of mandamus by clear and convincing evidence. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, ¶ 26. "Clear and convincing evidence" is a measure or degree of proof that is more than a preponderance of evidence, but it does not extend the degree of certainty beyond a reasonable doubt as required in a criminal case; clear and convincing evidence produces in the trier of fact's mind a firm belief of the fact sought to be established. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 14.
{¶ 14} R.C. 2969.25(A) requires, in pertinent part, the following:
(C) 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[.]R.C. 2969.25 (C)(1).
{¶ 15} R.C. 2969.25 requires strict compliance. State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6. 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). Nothing in R.C. 2969.25 permits substantial compliance. State ex rel Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4, citing Martin v. Ghee, 10th Dist. No. 01AP-1380, 2002-Ohio-1621. Furthermore, the failure to comply with R.C. 2969.25 cannot be cured at a later date by belatedly attempting to file a compliant affidavit. State ex rel Young v. Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9.
{¶ 16} In the present case, relator failed to file a cashier's statement with the information required by R.C. 2969.25. Relator did not file a statement of his prisoner account that sets forth the balance in his inmate account for each of the preceding six months, as certified by the institutional cashier. Instead, using form DRC 2257 E (08/97) ("form DRC 2257"), the institutional cashier provided the following: "Account Balance as of 3/2/23"; "Total state pay credited for the report period"; "Average monthly state pay for the report period"; "Total funds received from all sources, excluding state pay, for the report period"; and "Total amount spent in inmate's commissary during the same period." None of these amounts set forth the balance in relator's inmate account for each of the preceding six months. The Supreme Court of Ohio has "affirmed dismissals of inmate actions when the inmate had failed to submit the account statement required by R.C. 2969.25(C)(1)." State ex rel Roden v. Ohio Dept. of Rehab. & Corr., 159 Ohio St.3d 314, 2020-Ohio-408, ¶ 8. Therefore, relator's failure to comply with R.C. 2969.25(C) requires dismissal. Even if the provided amounts could be used to calculate a six-month monthly average, the cashier's statement would be insufficient. See State ex rel. Guyton v. Jones, 9th Dist. No. 29893, 2021-Ohio-430, ¶ 4 (although inmate's statement from the prison cashier provides a six-month average, it does not provide the balance in the inmate account for each of the six months preceding his petition before the court; R.C. 2969.25(C) does not permit substantial compliance); State ex rel Cleavenger v. O'Brien, 9th Dist. No. 29723, 2020-Ohio-3010, ¶ 4 (although inmate's affidavit provides his total deposits, average monthly deposit, and average first-day balance, it does not provide the balance in the inmate account for each of the six months preceding his petition before this court; thus, it does not comply with R.C. 2969.25(C)); State ex rel Clark v. Serrott, 10th Dist. No. 16AP-411, 2017-Ohio-1139, ¶ 12 (document purporting to show the average deposits and balances for the preceding six months does not comply with R.C. 2969.25(C)).
{¶ 17} Relator's arguments as to why the court should not dismiss his petition are unavailing. Relator contends that the reason his submitted cashier's statement is not compliant with R.C. 2969.25(C) is entirely attributable to the respondent and the Attorney General. Relator asserts that he twice submitted a blank L.L. Form 10.01 ("form 10.01") cashier's statement to his institutional cashier to complete, but the cashier unilaterally substituted form 10.01 with form DRC 2257 without his knowledge. Relator attached to his response to the motion to dismiss the form 10.01 he claims he submitted to his institutional cashier. The form 10.01 provides a section for the cashier to indicate the total balance for "Month one," "Month two," "Month three," "Month four," "Month five," and "Month six." Relator also attached a copy of an email from his institutional cashier allegedly to other Ohio institutional cashiers indicating that "DRC Legal" and "Central office" have determined that form DRC 2257 is the affidavit of indigency and six-month demand statement that will be officially used, and the counties will accept this form. Relator also seeks leave to submit the proper form to the court.
{¶ 18} If true, relator's argument is curious, if not concerning. The form 10.01 relator submitted to the cashier appears compliant with R.C. 2969.25(C), while form DRC 2257 the cashier unilaterally substituted for form 10.01 is not. Notwithstanding, the burden was on relator to submit a cashier's statement compliant with R.C. 2969.25(C). He failed to do so, regardless of the reason for his failure. Furthermore, as explained above, relator's failure to comply with R.C. 2969.25 cannot be cured at a later date by belatedly attempting to file a compliant affidavit. Thus, at this juncture, the court cannot grant relator leave to submit the proper form. Relator's remedy may be in another mandamus action.
{¶ 19} Accordingly, it is the magistrate's decision that, based upon relator's failure to comply with the mandatory filing requirements of R.C. 2969.25, this court should grant respondent's motion to dismiss relator's petition for writ of mandamus. All other pending motions are denied.
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). A party may file written objections to the magistrate's decision within fourteen days of the filing of the decision.