State of Ohio ex rel. Cleavenger v. O'Brien

2020 Ohio 3010

• Court: Ohio Court of Appeals
• Decided: May 20, 2020
• Docket: 29723
• Status: Published

Opinion

[Cite as State of Ohio ex rel. Cleavenger v. O'Brien, 2020-Ohio-3010.]

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

STATE OF OHIO EX REL. TODD CLEAVENGER C.A. No. 29723 Relator

v. ORIGINAL ACTION IN HONORABLE TAMMY O’BRIEN, PROCEDENDO JUDGE

Respondent

Dated: May 20, 2020

PER CURIAM.

{¶1} Relator Todd Cleavenger has filed a petition asking this Court for a writ of

procedendo ordering Respondent, Judge Tammy O’Brien, to rule on his pending motions.

Because Mr. Cleavenger’s petition does 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. Judge O’Brien is a government employee and

Mr. Cleavenger, incarcerated in the Richland Correctional Institution, is an inmate. R.C.

2969.21(C) and (D). A case must be dismissed if the 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.”). Mr. Cleavenger failed to comply with two requirements. C.A. No. 29723 Page 2 of 3

{¶3} First, an inmate must “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.” R.C. 2969.25(A) (emphasis added). Mr. Cleavenger instead filed a

listing of the civil actions he has filed over the last twelve months, citing to R.C. 2969.25(B).

Section (B) provides a mechanism for the reviewing court to determine whether repeated filings

over a twelve-month span by a filing inmate are frivolous or malicious; it does not impose any

obligations on inmates. Id. at (B). Although Mr. Cleavenger’s affidavit otherwise satisfies the

requirements of R.C. 2969.25(A)(1)–(3), this Court cannot overlook his failure to provide an

affidavit covering five years. R.C. 2969.25(A) requires an affidavit of all civil actions or appeals

the inmate filed over the five years prior to filing the present action. Mr. Cleavenger’s affidavit

only covers twelve months. It is, therefore, insufficient.

{¶4} Second, an inmate seeking waiver of filing fees, as Mr. Cleavenger is here, must

file an affidavit of indigency. The affidavit must include, among other things, “[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[.]” R.C. 2969.25(C)(1). The Supreme Court construes

these words strictly: an affidavit that “does not include a statement setting forth the balance in

[an] inmate account for each of the preceding six months” fails to comply with R.C.

2969.25(C)(1). State ex rel. Roden v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2020-

Ohio-408, ¶ 6 (emphasis sic.). Mr. Cleavenger’s affidavit provides his total deposits, average

monthly deposit, and average first day balance. It does not provide the balance in the inmate

account for each of the six months preceding his petition before this Court. “‘R.C. 2969.25(C)

does not permit substantial compliance[,]’” it requires strict adherence by the filing inmate. Id.

at ¶ 8, citing State ex rel. v. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, ¶ 7. Therefore, C.A. No. 29723 Page 3 of 3

Mr. Cleavenger’s affidavit does not comply with the mandatory requirements of R.C.

2969.25(C)(1).

{¶5} Because Mr. Cleavenger did not comply with the mandatory requirements of R.C.

2969.25, this case is dismissed. Costs are taxed to Mr. Cleavenger. 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.

LYNNE S. CALLAHAN FOR THE COURT

SCHAFER, J. TEODOSIO, J. CONCUR.

APPEARANCES:

TODD CLEAVENGER, Pro se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting Attorney, for Respondent.