[Cite as State ex rel. Honzu v. Ohio Parole Bd., 2020-Ohio-3384.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Lewis Honzu, :

Relator, :

No. 19AP-809

v. :

(REGULAR CALENDAR)

Ohio Parole Board, :

Respondent. :



D E C I S I O N

Rendered on June 18, 2020



On brief: Lewis Honzu, pro se.



IN MANDAMUS

ON SUA SPONTE DISMISSAL

SADLER, P.J.

{¶ 1} Relator, Lewis Honzu, filed an original action requesting this court issue a

writ of mandamus ordering respondent, Ohio Parole Board, to reconsider his eligibility for

parole.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth Appellate District, this

matter was referred to a magistrate who issued a decision, including findings of fact and

conclusions of law, which is appended hereto. The magistrate determined that at the time

relator filed his complaint, he failed to file a proper affidavit of indigence which included a

certified copy of a cashier's statement as required by R.C. 2969.25(C). As compliance with

the provisions of R.C. 2969.25 is mandatory, the magistrate recommended this court sua

sponte dismiss the complaint.

{¶ 3} The magistrate's decision was filed on January 30, 2020. Relator did not file

an objection to the magistrate's decision, but he did file a motion for reconsideration within

No. 19AP-809 2

14 days of the filing of the magistrate's decision. Accordingly, we shall construe appellant's

motion for reconsideration as an objection to the magistrate's decision.

{¶ 4} In relator's objection, relator contends the incompetence of respondent's staff

was the reason for his failure to file a cashier's statement with his complaint. Relator's

motion for reconsideration provides in relevant part as follows:

[O]n November 21, 2019, he sent out his Complaint and Writ

of Mandamus along with the Six Month State statement form

to the Inmate Mailroom here at the Chillicothe Correctional

Institution, who take the mailings and atach [sic] a six month

statement to the outside of the mail. The mail is then sent to

Post Five, and from there they send a copy of the statement

along with the Petition to the Court.

Several days later Post Five sent back the Six Month statement

saying there was no envelope to send the statement out.

Relator then sent the statement back out with another

envelope. After this Relator decided to send a Amended

Petition for a Complaint and Writ of Mandamus on

January 21, 2020. When Relator did this some days later Post

Five this time sent back the Complaint with no explanation,

but did send the Six Month Statement which was time

stamped by the Tenth District Court of Appeals. It is Relator's

contention that he should not be punished for the

incompetence of the prison system here at C.C.I.

(Relator's Mot. for Recons. at 1-2.)

{¶ 5} Though relator blames respondent for his failure to file the required cashier's

statement along with his complaint, the factual assertions in relator's motion are not

supported by an affidavit from relator or a prison official with knowledge. Whiteside v.

Ohio Adult Parole Auth., 10th Dist. No. 05AP-1265, 2006-Ohio-3145, ¶ 18 ("Although

appellant informed the trial court of the difficulties submitting a complaint affidavit of

indigency due to prison officials in his memorandum in opposition to appellees' motions to

dismiss, appellant's claims were not supported by affidavits from either himself or prison

officials."). Even if we were to accept relator's unsworn allegations, he admits that his

failure to provide an envelope for the cashier's statement was the stated reason respondent

did not submit a cashier's statement with relator's complaint. Relator also acknowledges

that respondent posted the cashier's statement after he provided respondent with an

envelope. Contrary to relator's claim, the unsworn allegations do not show that respondent

prevented relator from submitting the required cashier's statement with the complaint.

No. 19AP-809 3

{¶ 6} R.C. 2969.25(C)(1) provides in relevant part:

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 * * * 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:

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.

(Emphasis added.)

{¶ 7} The Supreme Court of Ohio has held that an inmate's "belated attempt" to

satisfy the affidavit requirement of R.C. 2969.25 by filing the required affidavit with an

amended complaint "does not excuse his noncompliance." Fuqua v. Williams, 100 Ohio

St.3d 211, 2003-Ohio-5533, ¶ 9. Accordingly, we agree with the magistrate's conclusion

that "relator cannot cure this deficiency now or at a later date." (Mag.'s Decision at ¶ 19.)

Moreover, the record shows that relator failed to obtain service of summons and complaint

on respondent as evidenced by the notice of failure of service filed by the clerk on

December 20, 2019. The record also shows that relator failed to serve respondent with the

amended complaint as evidenced by the clerk's notice filed March 2, 2020. Respondent

cannot be blamed for relator's failure to properly commence this action. See Civ.R. 3(A).

Accordingly, relator's objection is overruled.

On review of the magistrate's decision, an independent review of the record,

and due consideration of relator's objection, we find the magistrate has properly stated the

pertinent facts and applied the appropriate law. Therefore, we overrule relator's objection

to the magistrate's decision and 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, relator's petition for writ of mandamus is sua sponte dismissed.