[Cite as State ex rel. Swanson v. Dept. of Rehab. & Corr., 2018-Ohio-3761.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State ex rel. Richard Swanson,                          :

                 Relator,                               :

v.                                                      :                        No. 18AP-136

Ohio Department of Rehabilitation                       :                     (REGULAR CALENDAR)
and Correction,
                                                        :
                 Respondent.
                                                        :



                                            D E C I S I O N

                                   Rendered on September 18, 2018


                 Richard Swanson, pro se.

                 Michael DeWine, Attorney General, and Jared S. Yee, for
                 respondent.


                                    IN MANDAMUS
                        ON OBJECTION TO MAGISTRATE'S DECISION

KLATT, J.

        {¶ 1} Relator, Richard Swanson, commenced this original action in mandamus
seeking an order compelling respondent, Ohio Department of Rehabilitation and
Correction, to properly calculate his sentence. Respondent has filed a motion to dismiss.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate found that relator did not
comply with the mandatory requirements of R.C. 2969.25(A) because he failed to list in his
No. 18AP-136                                                                                  2

prior actions affidavit all cases he has filed in the past five years. Therefore, the magistrate
has recommended that we grant respondent's motion to dismiss.
       {¶ 3} Relator has filed an objection to the magistrate's decision. Relator contends
he did list all civil actions in the past five years. We disagree.
       {¶ 4} In her findings of fact, the magistrate determined that on January 30, 2018,
relator filed a second petition for a writ of mandamus in the Cuyahoga County Court of
Appeals. Relator does not dispute this finding in his objection to the magistrate's decision.
Relator's February 13, 2018 affidavit does not list this action. Therefore, relator has failed
to comply with the mandatory requirements of R.C. 2969.25(A). For this reason, we
overrule relator's objection.
       {¶ 5} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the decision as our own, including the findings of fact and conclusions of law contained
therein. In accordance with the magistrate's decision, we grant respondent's motion to
dismiss.
                                      Motion to dismiss granted; writ of mandamus denied.

                                TYACK and SADLER, JJ., concur.
No. 18AP-136                                                                                                 3

                                               APPENDIX

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel.                                      :
Richard Swanson,
                                                       :
                 Relator,
                                                       :
v.                                                                               No. 18AP-136
                                                       :
Ohio Department of Rehabilitation                                         (REGULAR CALENDAR)
and Correction,                                        :

                 Respondent.                           :


                               MAGISTRATE'S DECISION
                                  NUNC PRO TUNC1

                                       Rendered on May 9, 2018


                 Richard Swanson, pro se.

                 Michael DeWine, Attorney General, and Jared S. Yee, for
                 respondent.


                                      IN MANDAMUS
                            ON RESPONDENT'S MOTION TO DISMISS

        {¶ 6} Relator, Richard Swanson, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and
Correction ("ODRC"), to properly calculate his sentence.




1 This nunc pro tunc magistrate's decision filed May 9, 2018 replaces the magistrate's decision filed April 27,

2018 to correct a clerical error occasioned by the citation to the wrong statutory provisions. The time for
filing objections will run from the date of this filing, May 9, 2018.
No. 18AP-136                                                                                  4

Findings of Fact:
       {¶ 7} 1. Relator is an inmate currently incarcerated at Marion Correctional
Institution.
       {¶ 8} 2. On February 22, 2018, relator filed this mandamus action asserting that
ODRC had improperly calculated his sentence.
       {¶ 9} 3. At the time he filed this mandamus action, relator filed an affidavit of
indigency and attached thereto a certified copy of his inmate account setting forth the
balance for each of the preceding six months.
       {¶ 10} 4. At the time he filed this mandamus action, relator filed a prior actions
affidavit asserting that he had filed two civil actions or appeals of civil actions in the state
or federal courts within the past five years.
       {¶ 11} 5. Relator failed to include other cases he had filed including a petition for a
writ of mandamus filed in the Cuyahoga County Court of Appeals on October 21, 2015, a
motion to correct void judgment filed in the underlying criminal case in the common pleas
court in 2017, and a second petition for a writ of mandamus also filed in the Cuyahoga
County Court of Appeals on January 30, 2018.
       {¶ 12} 6. On March 19, 2018, respondent filed a motion to dismiss.
       {¶ 13} 7. Relator has not filed a reply to the motion to dismiss and the matter is
currently before the magistrate.
Conclusions of Law:
       {¶ 14} Because relator has failed to comply with the mandatory requirements of R.C.
2969.25(A) and because he cannot cure that deficiency at a later date, respondent's motion
should be granted and this matter should be dismissed.
       {¶ 15} In Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, an inmate,
Carlos J. Fuqua, filed in the Allen County Court of Appeals a petition for a writ of habeas
corpus. He requested leave to proceed in forma pauperis but he did not file the affidavit
required by R.C. 2969.25(A) describing each civil action or appeal of a civil action that he
had filed in the previous five years in any state or federal court.
       {¶ 16} Fuqua's prison warden, Jesse J. Williams, moved to dismiss the petition.
       {¶ 17} Fuqua requested leave in the court of appeals to amend his petition with the
affidavit required by R.C. 2969.25(A).
No. 18AP-136                                                                                5

       {¶ 18} The court of appeals dismissed the petition for habeas corpus and Fuqua
appealed as of right to the Supreme Court of Ohio.
              The Supreme Court of Ohio, in Fuqua at ¶ 9 states:
              Fuqua's belated attempt to file the required affidavit does not
              excuse his non-compliance. See R.C. 2969.25(A), which
              requires that the affidavit be filed "[a]t the time that an
              inmate commences a civil action or appeal against a
              government entity or employee." (Emphasis added.)

       {¶ 19} In Hawkins v. S. Ohio Corr. Facility, 102 Ohio St.3d 299, 2004-Ohio-2893,
an inmate, Jomo Hawkins, petitioned the Scioto County Court of Appeals for a writ of
habeas corpus. However, Hawkins' petition did not contain the R.C. 2725.04(D)
commitment papers nor the affidavit required by R.C. 2969.25(A). Later, Hawkins filed an
un-notarized statement purporting to be his R.C. 2969.25(A) affidavit.
       {¶ 20} Following dismissal of his action, Hawkins appealed as of right to the
Supreme Court of Ohio. Citing Fuqua, the Supreme Court affirmed the judgment of the
court of appeals.
       {¶ 21} As set forth in the findings of fact, relator did not include all other cases he
had filed in the past five years. Pursuant to the above-cited authority and because relator
cannot cure this deficiency now or at a later date, it is the 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).
