State ex rel. Folley v. Grafton Corr. Inst.

2023 Ohio 4464

• Court: Ohio Court of Appeals
• Decided: December 11, 2023
• Docket: 23CA012040
• Status: Published

Opinion

[Cite as State ex rel. Folley v. Grafton Corr. Inst., 2023-Ohio-4464.]

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

STATE EX REL. DEREK FOLLEY C.A. No. 23CA012040

Relator

v. ORIGINAL ACTION IN MANDAMUS GRAFTON CORRECTIONAL INSTITUTION, ET AL.

Respondents

Dated: December 11, 2023

PER CURIAM.

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

the three respondents, Grafton Correctional Institution and Lieutenant Benjamin Currier, have

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. The Respondents are a government entity and

two government employees, 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 C.A. No. 23CA012040 Page 2 of 4

R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate’s action to

dismissal.”).

{¶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 Relator’s O.R.C. 2969.25 Affidavit of

Inmate Prior Action” along with his complaint. The document was not an affidavit, however, as

it failed to include any of the requirements of an affidavit; Mr. Folley did not swear to the truth

of the information and it was not signed under oath. Further, rather than listing the information

required by R.C. 2969.25(A)(1) through (4), Mr. Folley attached a printout of search results from

an unknown source listing some of his cases along with the cover page of a document from those

cases. This “affidavit of inmate prior action” does not comply with the requirements of R.C.

2969.25(A)(1). C.A. No. 23CA012040 Page 3 of 4

{¶5} Mr. Folley apparently recognized that his affidavit failed to comply. One month

after this filing, Mr. Folley filed a document captioned “Nunc Pro Tunc of The Relator’s O.R.C.

2969.25 Affidavit of Inmate Prior Action.” This document contains a list of significantly more

cases and it is notarized. A few days later, Mr. Folley filed a “Second Amendment” to his list of

prior actions.

{¶6} 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.

{¶7} “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.

{¶8} 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.

{¶9} 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 C.A. No. 23CA012040 Page 4 of 4

CARR, J. FLAGG LANZINGER, J. CONCUR.

APPEARANCES:

DEREK FOLLEY, Pro Se, Relator.

DAVE YOST, Ohio Attorney General, and MATTHEW P. CONVERY and GEORGE HORVATH, Senior Assistant Attorneys General, for Respondents.