[Cite as State ex rel. Perotti v. Ohio Adult Parole Auth., 2017-Ohio-817.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


The State ex rel. John W. Perotti,                       :

                 Relator,                                :

v.                                                       :                      No. 16AP-710

Ohio Adult Parole Authority,                             :                   (REGULAR CALENDAR)

                 Respondent.                             :



                                             D E C I S I O N

                                       Rendered on March 7, 2017


                 On brief: John W. Perotti, pro se.

                 On brief: Michael DeWine, Attorney General, and Kelly N.
                 Brogan, for respondent.

                              IN MANDAMUS AND HABEAS CORPUS
                                  ON SUA SPONTE DISMISSAL

LUPER SCHUSTER, J.
        {¶ 1} Relator John W. Perotti commenced this original action requesting a writ of
mandamus and habeas corpus issue against respondent Ohio Adult Parole Authority.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate. As the magistrate noted, Perotti
filed his original action on October 12, 2016 along with (1) an affidavit of indigency
executed in August 2016; (2) an "Affidavit of Prior Actions" executed by relator on
August 16, 2016; (3) a document captioned "Combined Affidavit of Inmate Per R.C.
2969.21, et seq." indicating relator has $6.18 in his inmate account, signed by relator and
notarized on September 14, 2016; and (4) a document captioned "Mansfield Correctional
Institution, Inmate Demand Statement" setting forth the transactions in relator's inmate
No. 16AP-710                                                                              2


account for the period of February 1 to August 20, 2016. Neither the combined affidavit of
inmate nor the inmate demand statement is certified by the institutional cashier. The
magistrate found relator failed to comply with R.C. 2969.25(C) because the statement of
account he filed did not include the second half of August or any of September 2016, and,
since relator filed his original action on October 12, 2016, he did not show the balance in
his inmate account "for each of the preceding six months." R.C. 2969.25(C)(1). Thus, the
magistrate recommended that this court sua sponte dismiss the action.
        {¶ 3} Relator filed objections to the magistrate's decision arguing he did supply a
statement accounting for a period of six months and that his failure to provide a
statement that did not cover the second half of August or any of September was not fatal
to his claim. The record reflects that along with his objections, relator filed an updated
statement of his inmate account covering the six month period of May 1 to November 2,
2016.
        {¶ 4} Though the magistrate and relator focus on the contents of the statement of
account and whether it covers the proper time period, our review of the record indicates
the document relator filed with his complaint suffers from a more fundamental flaw: it is
not certified by the institutional cashier. Pursuant to R.C. 2969.25(C), an inmate seeking
waiver of prepayment of the filing fee on the grounds of indigency must file along with the
complaint 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. The magistrate
noted in its decision that the statement of account relator provided was not certified by
the institutional cashier, and this failure alone renders relator's filing noncompliant with
R.C. 2969.25. Therefore, we need not address the merits of relator's arguments regarding
the proper time frame of the six-month statement because the document was not certified
by the institutional cashier.
        {¶ 5} As the Supreme Court of Ohio has held, "[t]he requirements of R.C. 2969.25
are mandatory and failure to comply with them requires dismissal of an inmate's
complaint." State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, ¶ 4, citing
State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259 (1999).
Additionally, as this court has recently reiterated, both the affidavit of waiver and the
No. 16AP-710                                                                                3


certified statement of account must be filed at the time the inmate files the complaint, and
" 'an inmate may not cure the defect by later filings.' " State ex rel. Anderson v. Wilson,
10th Dist. No. 15AP-1060, 2016-Ohio-1191, ¶ 5, quoting Hall at ¶ 4. Thus, the updated
statement of account relator filed along with his objections does not operate to
retroactively comply with the requirements of R.C. 2969.25(C). State ex rel. Swain v.
Ohio Adult Parole Auth., 10th Dist. No. 16AP-519, 2017-Ohio-517, ¶ 5. Though we agree
with the magistrate's recommendation to sua sponte dismiss relator's complaint due to
his failure to comply with R.C. 2969.25(C), we modify the magistrate's decision to reflect
relator's failure to provide a certified statement of account as the basis for dismissal.
       {¶ 6} Following an independent review of this matter, we overrule relator's
objections to the magistrate's decision. We adopt the magistrate's findings of facts and
conclusions of law, with the exception of the modification noted regarding the basis for
dismissal under R.C. 2969.25(C).          In accordance with the modifications to the
magistrate's decision, we sua sponte dismiss this action.
                                                                              Case dismissed.

                           SADLER and DORRIAN, JJ., concur.
No. 16AP-710                                                                            4


                                          APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. John W. Perotti,           :

               Relator,                       :

v.                                           :                   No. 16AP-710

Ohio Adult Parole Authority,                  :               (REGULAR CALENDAR)

               Respondent.                   :


                          MAGISTRATE'S DECISION

                               Rendered on October 27, 2016


               John W. Perotti, pro se.


                          IN MANDAMUS AND HABEAS CORPUS
                              ON SUA SPONTE DISMISSAL

       {¶ 7} In this original action, relator, John W. Perotti, an inmate of the Mansfield
Correctional Institution ("MCI") requests that a writ of mandamus and habeas corpus
issue against respondent, Ohio Adult Parole Authority ("respondent" or "OAPA").
Findings of Fact:
       {¶ 8} 1. On October 12, 2016, relator, an MCI inmate, filed this original action
against respondent.
       {¶ 9} 2. Relator has not deposited with the clerk of this court the monetary sum
required as security for the payment of costs. See Loc.R. 13(B) of the Tenth District
Court of Appeals.
       {¶ 10} 3. With his complaint, relator filed an affidavit of indigency executed
during August 2016.
No. 16AP-710                                                                              5


       {¶ 11} 4. Relator did not file an affidavit that he is seeking a waiver of the
prepayment of this court's full filing fees as provided at R.C. 2969.25(C).
       {¶ 12} 5. With his complaint, relator filed a seven-page document captioned
"Mansfield Correctional Institution, Inmate Demand Statement." The Inmate Demand
Statement sets forth the transactions in relator's inmate account at MCI for the period
February 1 through August 20, 2016. August 19, 2016 is the date of the last entered
transaction.
       {¶ 13} 6. The Inmate Demand Statement is not certified by the institutional
cashier.
       {¶ 14} 7. With his complaint, relator also filed a document captioned "Combined
Affidavit of Inmate Per R.C. 2969.21, et seq." This document indicates that relator has
$6.18 in his inmate account. The document is purportedly signed by relator and was
notarized by a notary on September 14, 2016. However, this document is not certified
by the institutional cashier as required by R.C. 2969.25(C)(1).
       {¶ 15} 8. Relator also filed with his complaint a document captioned "Affidavit of
Prior Actions." The document indicates that the affidavit was executed by relator on
August 16, 2016 before a notary.
Conclusions of Law:
       {¶ 16} It is the magistrate's decision that this court sua sponte dismiss this action
for relator's failure to satisfy the mandatory filing requirements set forth at R.C.
2969.25(C).
       {¶ 17} R.C. 2969.25(C) provides:
               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;
No. 16AP-710                                                                          6


               (2) A statement that sets forth all other cash and things of
               value owned by the inmate at that time.

       {¶ 18} In State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, the
Supreme Court of Ohio had occasion to apply R.C. 2969.25(C)(1) to the institutional
cashier statement at issue in that case. In affirming the judgment of the Medina County
Court of Appeals, the Supreme Court explained:
               Pamer moved for waiver of the prepayment of fees to file his
               mandamus action and submitted an affidavit of indigency
               and a statement certified by his prison cashier showing his
               inmate account for the period from March 1, 2005, through
               August 1, 2005.

               On October 14, 2005, the court of appeals dismissed Pamer's
               complaint for failure to comply with the requirements of R.C.
               2969.25(C). The court of appeals also ordered Pamer to pay
               costs.

               We affirm the judgment of the court of appeals. 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 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 he 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, 2001-Ohio-197, 750 N.E.2d 164; Civ.R. 54(D).

Id. at 493.
No. 16AP-710                                                                            7


       {¶ 19} The Pamer case is instructive here. Because relator filed this original
action on October 12, 2016, relator was required by R.C. 2969.25(C) to file with his
complaint a statement of the institutional cashier setting forth the balance in his inmate
account "for each of the preceding six months," which includes September and August
2016. That is, September and August 2016 are among the six months preceding the
filing of the complaint. However, the institutional cashier statement at issue here fails
to set forth any balance or information regarding September 2016 and it only sets forth
the balance for part of August 2016.
       {¶ 20} Based on Pamer, the magistrate concludes that relator failed to satisfy the
mandatory filing requirements of R.C. 2969.25(C). See Al' Shahid v. Cook, 144 Ohio
St.3d 15, 2015-Ohio-2079. Therefore, this court must dismiss this action. Pamer.
       {¶ 21} Accordingly, it is the magistrate's decision that this court sua sponte
dismiss this action.




                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE




                               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).
