State ex rel. Folley v. Foley

2023 Ohio 4465

• Court: Ohio Court of Appeals
• Decided: December 11, 2023
• Docket: 23CA012041
• Status: Published

Opinion

[Cite as State ex rel. Folley v. Foley, 2023-Ohio-4465.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE EX REL. DEREK FOLLEY C.A. No. 23CA012041

Relator

v. ORIGINAL ACTION IN HABEAS CORPUS KEITH J. FOLEY, WARDEN

Respondent

Dated: December 11, 2023

PER CURIAM.

{¶1} Relator, Derek Folley, has petitioned this Court for a writ of habeas corpus.

Respondent, Warden Keith Foley, has moved to dismiss pursuant to Civ.R. 12(B)(6). Because

Mr. Folley did not comply with the mandatory requirements of R.C. 2969.25, this Court must

dismiss this action.

{¶2} R.C. 2969.25 sets forth specific filing requirements for inmates who file a civil

action against a government employee or entity. Warden Foley is a government employee, and

Mr. Folley, incarcerated in the Grafton Correctional Institution, is an inmate. R.C. 2969.21(C) and

(D). A case must be dismissed if an inmate fails to comply with the mandatory requirements of

R.C. 2969.25 in the commencement of the action. State ex rel. Graham v. Findlay Mun. Court,

106 Ohio St.3d 63, 2005-Ohio-3671, ¶ 6 (“The requirements of R.C. 2969.25 are mandatory, and

failure to comply with them subjects an inmate’s action to dismissal.”). C.A. No. 23CA012041 Page 2 of 4

{¶3} Mr. Folley failed to comply with R.C. 2969.25(A). That section requires an inmate,

at the time the inmate commences a civil action against a government entity or employee, to file

with the court an affidavit that contains a description of each civil action or appeal of a civil action

that the inmate has filed in the previous five years in any state or federal court. For each action or

appeal, the affidavit must contain specific information:

(1) A brief description of the nature of the civil action or appeal;

(2) The case name, case number, and the court in which the civil action or appeal was brought;

(3) The name of each party to the civil action or appeal;

(4) The outcome of the civil action or appeal, including whether the court dismissed the civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether the court made an award against the inmate or the inmate's counsel of record for frivolous conduct under section 2323.51 of the Revised Code, another statute, or a rule of court, and, if the court so dismissed the action or appeal or made an award of that nature, the date of the final order affirming the dismissal or award.

R.C. 2969.25(A)(1) through (4).

{¶4} Mr. Folley filed a document captioned “The Petitioner’s O.R.C. 2969.25 Affidavit

of Inmate Prior Action” along with his petition. The affidavit failed to comply with the

requirements of R.C. 2969.25(A). For example, several cases are identified with a case caption

noting “et al.” after the name of the defendant in the caption, but Mr. Folley failed to include the

name or names of the additional defendants. R.C. 2969.25(A)(3). For other cases, Mr. Folley

failed to identify the nature of the action or appeal. R.C. 2969.25(A)(1). Mr. Folley also failed

to include the outcome of every case. R.C. 2969.25(A)(4).

{¶5} Since he filed his initial affidavit of prior civil actions, Mr. Folley has filed at least

two more documents captioned as a “Nunc Pro Tunc,” “First Amendment,” or “Second

Amendment” to his affidavit of prior actions. These additional filings add cases that were omitted C.A. No. 23CA012041 Page 3 of 4

from the initial affidavit or prior civil actions. Even if these documents complied with R.C.

2969.25(A), Mr. Folley filed them too late. An inmate must comply with the requirements of

R.C. 2969.25 at the time of filing and later filings are not permitted to correct deficiencies. State

ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, ¶ 4.

{¶6} “Compliance with R.C. 2969.25(A) is mandatory, and a failure to comply warrants

dismissal of the action.” State ex rel. Woods v. Jenkins, Slip Opinion No. 2023-Ohio-2333, ¶ 4,

quoting State v. Henton, 146 Ohio St.3d 9, 2016-Ohio-1518, ¶ 3. Strict compliance with the

language of the statute is required by the Supreme Court’s decisions, and noncompliance with the

statutory requirements is fatal. Id. A deficient affidavit requires dismissal of the action. Id.

{¶7} Mr. Folley’s affidavit failed to include information that, pursuant to R.C.

2969.25(A), must be included. Because Mr. Folley’s affidavit did not comply with the

mandatory requirements of the statute, the case must be dismissed.

{¶8} This case is dismissed. Costs taxed to Mr. Folley. The clerk of courts is hereby

directed to serve upon all parties not in default notice of this judgment and its date of entry upon

the journal. See Civ.R. 58(B).

JENNIFER L. HENSAL FOR THE COURT

CARR, J. FLAGG LANZINGER, J. CONCUR. C.A. No. 23CA012041 Page 4 of 4

APPEARANCES:

DEREK FOLLEY, Pro Se, Relator.

DAVE YOST, Ohio Attorney General, and JERRI L. FOSNAUGHT, Assistant Attorney General, for Respondent.