[Cite as Nelson v. Rodriguez, 2011-Ohio-996.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY

__________________________________________________________________

RANDALL J. NELSON,                                       CASE NO. 5-10-20

   PLAINTIFF-APPELLANT,

  v.

ALAINNAH B. RODRIGUEZ,                                     OPINION

   DEFENDANT-APPELLEE.
__________________________________________________________________

                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2010-CV-378

                                     Judgment Affirmed

                             Date of Decision: March 7, 2011




APPEARANCES:

        Randall J. Nelson, Appellant

        Alainnah B. Rodriguez, Appellee
Case No. 5-10-20


PRESTON, J.

       {¶1} Plaintiff-appellant, Randall J. Nelson (“Nelson”), pro-se, appeals the

Hancock County Common Pleas’ judgment denying his motion to file his civil

complaint against defendant-appellee, Alainnah B. Rodriguez (“Rodriguez”), in

forma pauperis. We affirm.

       {¶2} On May 21, 2010, Nelson filed a “Motion to file a civil complaint

Informa Pauperis” against Rodriguez in the Hancock County Court of Common

Pleas. (Doc. No. 6). Nelson attached to his motion an affidavit of indigency. (Id.).

A copy of Nelson’s complaint was included in the file but was neither file-

stamped nor docketed by the clerk. Nelson’s complaint essentially alleged that

Rodriguez, his ex-girlfriend, defamed him by sending MySpace emails stating that

he had infected her with HIV (AIDS).

       {¶3} On June 4, 2010, the trial court overruled Nelson’s motion to file his

complaint in forma pauperis. (Doc. No. 7). On June 28, 2010, Nelson filed a

notice of appeal. (Doc. No. 8). Nelson now appeals raising one assignment of

error for our review.

                              ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED
       PLAINTIFF’S MOTION TO FILE COMPLAINT INFORMA
       [SIC] PAUPERIS.




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Case No. 5-10-20


       {¶4} In his sole assignment of error, Nelson argues that the trial court erred

by denying his motion to file his civil complaint without deposit of court costs.

We disagree.

       {¶5} Ohio’s Common Pleas Courts have inherent power to secure the

orderly administration of justice and safeguard against conduct which would

impair the free exercise of judicial functions. Eubank v. Doneghy (June 9, 1989),

6th Dist. No. L-88-193, at *1, citing Zangerle v. Common Pleas Court (1943), 141

Ohio St. 70, 46 N.E.2d 865. See, also, 19 Ohio Jurisprudence 3d (2010), Costs in

Civil Actions, Section 34. As an exercise of that inherent authority, it is within the

court’s discretion to determine whether indigency status is proper in a particular

case for waiving the deposit for security of costs. Guisinger v. Spier, 166 Ohio

App.3d 728, 2006-Ohio-1810, 853 N.E.2d 320, ¶6, citing Wilson v. Ohio Dept. of

Rehab. and Corr. (2000), 138 Ohio App.3d 239, 243, 741 N.E.2d 152. When

making this determination, a trial court may consider: “whether the litigant has

caused the court’s limited resources to be expended needlessly in the past by filing

numerous, repetitious, or frivolous complaints[;] whether the affidavit of

indigency includes sufficient information concerning the litigant’s financial

condition[;] whether additional information is required[;] and whether the affidavit

of indigency appears to be reasonable under conditions then existing.” Spier at ¶6,

citing Wilson at 243. Nevertheless, “[t]he determination of indigence for purposes

of whether a plaintiff should be required to pay filing fees and court costs ‘is

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Case No. 5-10-20


typically granted liberally in order to preserve the due process rights of litigants

and guarantee an access to judicial process and representation.’” Spier at ¶6,

quoting Evans v. Evans, 10th Dist. Nos. 04AP-816, 04AP-1208, 2005-Ohio-5090,

¶23.

       {¶6} “The standard of review in an appeal from a decision denying a

motion for leave to proceed in forma pauperis is an abuse of discretion.” Wilson,

138 Ohio App.3d at 243.       An “abuse of discretion” has been defined as an

unreasonable, arbitrary, or unconscionable act on the part of the trial court.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶7} The trial court did not abuse its discretion by denying Nelson’s motion

to file his civil complaint in forma pauperis. Although the trial court concluded

that Nelson’s actual indigent status was “indisputable” and failed to find that

Nelson had abused the judicial process, the trial court concluded that Nelson

“ha[d] failed to establish any compelling public interest or individual necessity

requiring that he be permitted to pursue his complaint without tendering the

sufficient deposit in advance.” (June 4, 2010 JE, Doc. No. 7). The trial court’s

rational is not succinctly stated, but it appears to have determined that Nelson’s

indigency status for purposes of waiving the deposit for security of costs was not

“reasonable under conditions then existing.” See Spier at ¶6, citing Wilson at 243.

As such, we cannot find that the trial court abused its discretion by denying

Nelson’s motion to file his complaint in forma pauperis.

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Case No. 5-10-20


       {¶8} Nelson’s assignment of error is, therefore, overruled.

                                                                  Judgment Affirmed

SHAW, J., concurs.

/jnc

WILLAMOWSKI, J., dissents.

       {¶9} I disagree with the majority in that I would find the trial court’s

judgment to be an abuse of discretion. R.C. 2323.31 specifically provides that “if

a plaintiff makes an affidavit of inability either to prepay or give security for costs,

the clerk of the court shall receive and file the petition.”

       The determination of indigence for purposes of whether a
       plaintiff should be required to pay filing fees and court costs “is
       typically granted liberally in order to preserve the due process
       rights of litigants and guarantee an access to judicial process and
       representation.” Evans v. Evans, Franklin App. Nos. 04AP-816 &
       04AP-1208, 2005-Ohio-5090, 2005 WL 2364976, ¶23. “While
       courts traditionally waive filing fees and costs for indigent
       persons in order to promote the interests of justice, it is within
       the court’s discretion whether indigency status is proper in a
       particular case. The trial court may consider whether a litigant
       has caused the court’s limited resources to be expended
       needlessly in the past by filing numerous, repetitious, or
       frivolous complaints, whether the affidavit of indigency includes
       sufficient information concerning the litigant’s financial
       condition, whether additional information is required, and
       whether the affidavit of indigency appears to be reasonable
       under conditions then existing.” Wilson v. Dept. of Rehab. &
       Corr. (2000), 138 Ohio App.3d 239, 243, 741 N.E.2d 152.

Guisinger v. Spier, 166 Ohio App.3d 728, 2006-Ohio-1810, ¶6, 853 N.E.2d 320.




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Case No. 5-10-20


       {¶10} The majority recognizes that the trial court found that Nelson was

indigent and that the trial court made no findings that Nelson had previously

abused the process. The majority then affirms the trial court’s decision because it

appears that the trial court found that the waiver was not reasonable under

conditions then existing.    However, the trial court did not find the affidavit

unreasonable. The trial court had no issues with the affidavit itself. Specifically,

the trial court found that “[b]ased upon the information supplied [in the affidavit],

it is indisputable that the Plaintiff is indigent.” J.E. 1. Instead the trial court

determined that the case lacked “any compelling public interest or individual

necessity.” J.E. 3. That is not the standard that is to be used in reviewing the

affidavit. Therefore, I would reverse the judgment of the trial court.




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