[Cite as State ex rel. Lathan v. Ohio Court of Claims, 2017-Ohio-444.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. [Darek] Lathan,                       :
                                                        :
                 Relator,
                                                        :
v.                                                                          No. 16AP-433
                                                        :
Court of Claims of Ohio,                                                 (REGULAR CALENDAR)
                                                        :
                 Respondent.
                                                        :



                                            D E C I S I O N

                                     Rendered on February 7, 2017


                 Darek Lathan, pro se.

                 Michael DeWine, Attorney General, and Jordan S. Berman,
                 for respondent.

                                        IN PROCEDENDO
                                    ON SUA SPONTE DISMISSAL

LUPER SCHUSTER, J.
        {¶ 1} Relator, Darek Lathan, has filed an original action requesting this court
issue a writ of procedendo ordering respondent, Court of Claims of Ohio, to enter
judgment in a case initiated by another inmate. Relator alleges that respondent has been
dilatory in rendering judgment in that case, and that the dilatory conduct has prevented
the case he filed in that court from proceeding forward.
        {¶ 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 this court sua sponte dismiss the action. The magistrate concluded that
No. 16AP-433                                                                             2


this action should be sua sponte dismissed because relator failed to comply with the
requirements of R.C. 2969.25(C). Specifically, the magistrate found that relator failed to
include with his complaint a statement of the amount in his inmate account for each of
the preceding six months as certified by the institutional cashier and a statement of all
other cash and things of value he owns.
       {¶ 3} Subsequent to the filing of the magistrate's decision, respondent filed a
motion to dismiss pursuant to Civ.R. 12(B)(6).         Relator filed a motion to strike
respondent's motion to dismiss, and respondent filed a reply memorandum in support of
its motion to dismiss. Relator then moved to strike respondent's reply memorandum.
However, no objections to the magistrate's decision have been filed challenging the
decision's findings of fact or conclusions of law that this action should be dismissed
because relator failed to comply with the requirements of R.C. 2969.25(C).
       {¶ 4} Finding no error of law or other defect on the face of the magistrate's
decision, we adopt the magistrate's decision as our own, including the findings of fact and
conclusions of law. In accordance with the magistrate's decision, we sua sponte dismiss
this action. Relator's motions to strike, and respondent's motion to dismiss pursuant to
Civ.R. 12(B)(6), are rendered moot.
                                                                       Action dismissed;
                                                                  motions rendered moot.

                           KLATT and BRUNNER, JJ., concur.
No. 16AP-433                                                                              3


                                          APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. [Darek] Lathan,               :
                                                :
              Relator,
                                                :
v.                                                                     No. 16AP-433
                                                :
[Ohio Court of Claims],                                          (REGULAR CALENDAR)
                                                :
              Respondent.
                                                :



                          MAGISTRATE'S DECISION

                                 Rendered on June 28, 2016


              Darek Lathan, pro se.


                                   IN PROCEDENDO
                               ON SUA SPONTE DISMISSAL

       {¶ 5} Relator, Darek Lathan, has filed this original action requesting that this
court issue a writ of procedendo to compel the Ohio Court of Claims to enter judgment
in a case pending in that court in which he is involved.
Findings of Fact:
       {¶ 6} 1. Relator is an inmate currently incarcerated at North Central
Correctional Institution.
       {¶ 7} 2. On June 9, 2016, relator filed this procedendo action.
       {¶ 8} 3. At the time he filed this action, relator did not file an affidavit listing
each civil action or appeal of a civil action that he has filed in the last five years.
No. 16AP-433                                                                                             4


        {¶ 9} 4. Although relator attached a "Petition To Have Fee Waived For Filing
Writ of Procedendo," relator did not 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:
        {¶ 10} 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).
        {¶ 11} 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.
        {¶ 12} 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).
        {¶ 13} 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
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-433                                                                        5


                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 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.

          {¶ 14} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260,
2008-Ohio-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.
          {¶ 15} 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."
No. 16AP-433                                                                             6


                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
                originally in the court of appeals, rendering App.R. 26(A)
                inapplicable."

Id. at ¶ 5-6.

       {¶ 16} 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).
