State ex rel. Seipel v. Beatty

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[Cite as State ex rel. Seipel v. Beatty, 2016-Ohio-7878.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT The State ex rel. James E. Seipel, : Relator, : v. : No. 16AP-538 Judge Laurel Beatty, : (REGULAR CALENDAR) Respondents. : DECISION Rendered on November 22, 2016 James E. Seipel, pro se. IN MANDAMUS ON SUA SPONTE DISMISSAL HORTON, J. {¶ 1} Relator, James E. Seipel, an inmate, has filed an original action requesting this court issue a writ of mandamus ordering respondent, the Honorable Laurel Beatty, judge of the Franklin County Court of Common Pleas, to proceed to final judgment on his motion for jail-time credit filed March 30, 2016. {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, recommending that this court sua sponte dismiss this action because relator has failed to comply with the requirements of R.C. 2969.25(C). {¶ 3} No objections have been filed to the magistrate's decision. {¶ 4} Finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of No. 16AP-538 2 fact and conclusions of law. In accordance with the magistrate's decision, we sua sponte dismiss this action. Action dismissed. KLATT and LUPER SCHUSTER, JJ., concur. _________________ No. 16AP-538 3 APPENDIX IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT The State ex rel. James E. Seipel, Relator, : : v. : No. 16AP-538 Judge Laurel Beatty, : (REGULAR CALENDAR) Respondents. : MAGISTRATE'S DECISION Rendered on July 29, 2016 James E. Seipel, pro se. IN MANDAMUS ON SUA SPONTE DISMISSAL {¶ 5} Relator, James E. Seipel, has filed this original action requesting this court issue a writ of mandamus ordering respondent, the Honorable Judge Laurel Beatty, to proceed to final judgment on his motion for jail-time credit allegedly filed March 30, 2016. Findings of Fact: {¶ 6} 1. Relator is an inmate currently incarcerated at Madison Correctional Institution. {¶ 7} 2. On July 25, 2016, relator filed this mandamus action requesting that this court issue a writ of mandamus (procedendo) ordering respondent to proceed to final judgment on his motion for jail-time credit filed March 30, 2016. No. 16AP-538 4 {¶ 8} 3. At the time relator filed his mandamus action, relator filed a motion for leave to proceed in forma pauperis. At the time he filed this motion, relator did not seek a waiver of the pre-payment of filing fees nor did he include a statement of the amount in his inmate account for each of the preceding six months as certified by the institutional cashier nor a statement of all other cash and things of value he owns. Conclusions of Law: {¶ 9} The magistrate recommends that this court sua sponte dismiss this action because relator has failed to comply with the requirements of R.C. 2969.25(C). {¶ 10} 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 the 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. {¶ 11} 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); State ex rel. Alford v. Winters, 80 Ohio St.3d 285 (1997). {¶ 12} 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 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. 16AP-538 5 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 rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio St.3d 195, 2005-Ohio-6184, 837 N.E.2d 777, ¶ 5. In addition, nothing in R.C. 2969.25 required the court of appeals to afford Pamer the opportunity to pay the requisite filing fee before dismissing the case when Pamer expressly requested waiver of prepayment of those fees. Finally, because Pamer did not prevail and did not establish his indigency, the court of appeals did not abuse its discretion in ordering him to pay the costs of the proceeding. See State ex rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750 N.E.2d 164; Civ.R. 54(D). Id. at ¶ 5-7. {¶ 13} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008Ohio-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 prison cashier. {¶ 14} 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, P 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 No. 16AP-538 6 originally in the court of appeals, rendering App.R. 26(A) inapplicable." Id. at ¶ 5-6. {¶ 15} Pursuant to the above-cited authority and because relator cannot cure this deficiency now or at a later date, it is this 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 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).

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