State ex rel. Chester v. Doherty

2023 Ohio 2921

• Court: Ohio Court of Appeals
• Decided: August 21, 2023
• Docket: 2023-P-0038
• Status: Published

Opinion

[Cite as State ex rel. Chester v. Doherty, 2023-Ohio-2921.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2023-P-0038 ISAAC CHESTER,

Relator, Original Action for Mandamus

- vs -

THE HONORABLE: BECKY L. DOHERTY,

Respondent.

PER CURIAM OPINION

Decided: August 21, 2023 Judgment: Petition dismissed

Isaac Chester, pro se, PID# A791-522, Trumbull Correctional Institution, 5701 Burnett Street, P.O. Box 640, Leavittsburg, OH 44430 (Relator)

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).

PER CURIAM.

{¶1} Relator, Isaac Chester, filed a Petition for Writ of Mandamus on June 5,

2023. This Court issued an alternative writ directing respondent to move, plead or

otherwise respond to the filing.

{¶2} On July 13, 2023, respondent filed a Motion to Dismiss. Respondent argues

for dismissal on two grounds: first, because relator has failed to state a claim upon which

relief can be granted; second, because relator has not sought the proper writ. We need not address the merits of respondent’s motion. Respondent’s motion to dismiss is

rendered moot by this opinion’s disposition. Relator’s Petition for Writ of Mandamus is

dismissed, sua sponte, without prejudice for relator’s failure to comply with R.C.

2969.25(C). That statute provides:

(C) 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;

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

{¶3} The requirements of R.C. 2969.25(C) are mandatory and failure to comply

with them mandates dismissal of an inmate’s mandamus petition. State ex rel. Manns v.

Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, 894 N.E.2d 47, ¶ 4; State ex rel. Alford v.

Winters, 80 Ohio St.3d 285, 286, 685 N.E.2d 1242 (1997). Neither “substantial

compliance” nor a belated affidavit can remedy such a failure. Id.

{¶4} Here, relator filed an Affidavit of Indigency. However, relator’s affidavit only

states that he is indigent and cannot afford the court’s filing fees and costs. Further, relator

failed to file an affidavit of waiver. These failures are not curable and substantial

compliance will not suffice. Relator’s failure to comply with R.C. 2969.25(C) serves as an

independent basis to sua sponte dismiss his petition.

Case No. 2023-P-0038 See State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-Ohio-854, 883 N.E.2d

438, ¶ 5 (Ohio Supreme Court affirmed sua sponte dismissal of writ of mandamus for

failure to comply with R.C. 2969.25(C)) and State ex rel. Evans v. McGrath, 10th Dist.

Franklin No. 16AP-238, 2016-Ohio-8348, ¶¶ 6-7 (Court of appeals overruled objections

and adopted magistrate's decision that sua sponte dismissed writ of prohibition for failure

to comply with R.C. 2969.25(C)).

{¶5} Respondent’s motion to dismiss is rendered moot. Relator’s Petition for Writ

of Mandamus is dismissed, sua sponte, without prejudice.

JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., ROBERT J. PATTON, J., concur.

Case No. 2023-P-0038