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Date: 06-04-2020
Case Style:
State ex rel. Kimani Ware v. Bureau of Sentence Computation Office
Case Number: 19AP-841
Judge: Jennifer Brunner
Court: IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Plaintiff's Attorney: Not listed
Defendant's Attorney:
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Description: 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).
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.
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{¶ 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.
Outcome: 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.
Plaintiff's Experts:
Defendant's Experts:
Comments: