[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. McDougald v. Greene, Slip Opinion No. 2018-Ohio-4200.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2018-OHIO-4200
                    THE STATE EX REL. MCDOUGALD v. GREENE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
                 may be cited as State ex rel. McDougald v. Greene,
                          Slip Opinion No. 2018-Ohio-4200.]
Mandamus—R.C. 2969.25—Inapplicable to original actions filed in Supreme
        Court—Motion to dismiss denied—Alternative writ granted.
(No. 2018-0013—Submitted April 10, 2018—Decided October 18, 2018.)
                                       IN MANDAMUS.
                                    ________________
        Per Curiam.
        {¶ 1} Relator, Jerone McDougald, filed this original action in mandamus
against respondent, Larry Greene, an employee of the Southern Ohio Correctional
Facility. Greene subsequently filed a motion to dismiss. For the reasons set forth
below, we deny Greene’s motion to dismiss and issue an alternative writ. In
addition, because the Rules of Civil Procedure permitted McDougald to file an
amended complaint without leave of court, we deny McDougald’s motion for leave
to amend his complaint.
                              SUPREME COURT OF OHIO




                                     Background
       {¶ 2} McDougald is an inmate at the Southern Ohio Correctional Facility.
He alleges that on August 31, 2017, he submitted a public-records request to
Greene, the public-records custodian for the facility. Despite numerous follow-up
communications, McDougald asserts that he has never received the documents that
he had requested. He therefore filed a complaint for a writ of mandamus asking us
to compel Greene to provide McDougald the requested documents and to award
McDougald statutory damages.
       {¶ 3} Greene has filed a motion to dismiss the complaint based on
McDougald’s failure to comply with R.C. 2969.25’s filing requirements.
McDougald has not responded to Greene’s motion to dismiss.
                                       Analysis
       {¶ 4} The Ohio Revised Code imposes special procedural requirements
upon inmates who file civil actions against the government or its employees. R.C.
2969.25(A) states:


                 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 bought;
                 (3) The name of each party to the civil action or appeal;
                 (4) The outcome of the civil action or appeal * * *.



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                                January Term, 2018




       {¶ 5} In addition, if the inmate filing a civil suit seeks a waiver of
prepayment of the filing fee, then the inmate must include with the complaint two
affidavits: an affidavit of waiver and an affidavit of indigency. R.C. 2969.25(C).
The affidavits must include (1) a statement that is certified by the institutional
cashier and that sets forth the balance in the inmate’s account for each of the
preceding six months and (2) a statement of all other cash and things of value owned
by the inmate at the time of filing. R.C. 2969.25(C)(1) and (2).
       {¶ 6} “ ‘ “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. Perotti
v. Clipper, 151 Ohio St.3d 132, 2017-Ohio-8134, 86 N.E.3d 331, ¶ 3, quoting State
ex rel. McGrath v. McDonnell, 126 Ohio St.3d 511, 2010-Ohio-4726, 935 N.E.2d
830, ¶ 1, quoting State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262,
788 N.E.2d 634, ¶ 5. We have consistently affirmed the judgments of courts of
appeals dismissing inmates’ civil suits against the government when the complaints
or petitions have not included a complete affidavit of prior actions. See, e.g., State
ex rel. Sands v. Bunting, 150 Ohio St.3d 325, 2017-Ohio-5697, 81 N.E.3d 459, ¶ 3;
Robinson v. LaRose, 147 Ohio St.3d 473, 2016-Ohio-7647, 67 N.E.3d 765, ¶ 11.
Likewise, we have affirmed judgments dismissing inmates’ civil-suit complaints or
petitions when an inmate has sought a waiver of the filing fees but has failed to
supply the necessary affidavits. See, e.g., State ex rel. Davenport v. State, 146 Ohio
St.3d 255, 2016-Ohio-3414, 54 N.E.3d 1248, ¶ 1-3; State ex rel. Ridenour v.
Brunsman, 117 Ohio St.3d 260, 2008-Ohio-854, 883 N.E.2d 438, ¶ 5.
       {¶ 7} In his motion to dismiss, Greene correctly notes that McDougald is
an inmate who has filed a civil action against a state employee and that McDougald
did not attach an affidavit of prior civil actions to his complaint. Nevertheless,
Greene is not entitled to have the complaint dismissed.




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                              SUPREME COURT OF OHIO




       {¶ 8} The requirements of R.C. 2969.25 apply only to “a civil action or
appeal against a government entity or employee.” That phrase is defined in R.C.
2969.21(B) as follows:


               (1) “Civil action or appeal against a government entity or
       employee” means any of the following:
               (a) A civil action that an inmate commences against the state,
       a political subdivision, or an employee of the state or a political
       subdivision in a court of common pleas, court of appeals, county
       court, or municipal court;
               (b) An appeal of the judgment or order in a civil action of
       the type described in division (B)(1)(a) of this section that an inmate
       files in a court of appeals.


(Emphasis added.) Thus, the definition of a “civil action” in which an inmate must
include the information required by R.C. 2969.25 does not include an original
action filed in this court.    And just to make the point more explicit, R.C.
2969.21(B)(2) provides:


               “Civil action or appeal against a government entity or
       employee” does not include any civil action that an inmate
       commences against the state, a political subdivision, or an employee
       of the state or a political subdivision in the court of claims or the
       supreme court or an appeal of the judgment or order entered by the
       court of claims in a civil action of that nature, that an inmate files in
       a court of appeals or the supreme court.


(Emphasis added.)



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                                 January Term, 2018




       {¶ 9} Original actions filed in this court are governed by the Supreme
Court Rules of Practice. Those rules impose no special filing requirements on
inmates, with one exception: petitions for writs of habeas corpus must “be brought
and proceed in accordance with R.C. Chapter 2725.” S.Ct.Prac.R. 12.01(B). By
operation of that rule, a petition for a writ of habeas corpus filed in this court is
subject to R.C. 2725.04(D), which requires a habeas corpus petitioner to attach “[a]
copy of the commitment or cause of detention * * * if it can be procured without
impairing the efficiency of the remedy.” But McDougald did not file a petition for
a writ of habeas corpus. He filed an original action in mandamus in this court.
       {¶ 10} The motion to dismiss is premised entirely upon McDougald’s
noncompliance with R.C. 2969.25. Because that statute does not apply, we deny
the motion and grant an alternative writ.
       {¶ 11} Pursuant to S.Ct.Prac.R. 12.05, we set the following schedule for the
presentation of evidence and the filing of briefs: The parties are ordered to file any
evidence that they intend to present within 20 days of the date of this decision,
McDougald is ordered to file a brief within 10 days after the filing of the evidence,
Greene is ordered to file a brief within 20 days after the filing of McDougald’s
brief, and McDougald may file a reply brief within 7 days after the filing of
Greene’s brief.
       {¶ 12} We also deny McDougald’s motion for leave to amend his
complaint to add factual averments. Leave of court is not required.


                  A party may amend its pleading once as a matter of course
       within twenty-eight days after serving it or, if the pleading is one to
       which a responsive pleading is required within twenty-eight days
       after service of a responsive pleading or twenty-eight days after
       service of a motion under Civ.R. 12(B), * * * whichever is earlier.




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Civ.R. 15(A), see S.Ct.Prac.R. 12.01(A)(2)(b) (in original actions filed in this court,
the Rules of Civil Procedure apply unless they are clearly inapplicable or they
conflict with this court’s Rules of Practice). The court’s docket shows that the
complaint was served upon Greene by certified mail on January 4, 2018. The
motion for leave to amend was filed on January 26, well within the 28-day period
allowed under the rules. See, e.g., Michelson v. Volkswagen Aktiengesellschaft,
2018-Ohio-1303, 99 N.E.3d 475, ¶ 32 (8th Dist.).
                                                                      Motions denied
                                                         and alternative writ granted.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,
and DEGENARO, JJ., concur.
                               __________________
       Jerone McDougald, pro se.
       Michael DeWine, Attorney General, and Thomas Madden and Andrea K.
Boyd, Assistant Attorneys General, for respondent.
                               __________________




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