State ex rel. Gordon v. Summit Cty. Court of Common Pleas

[Cite as State ex rel. Gordon v. Summit Cty. Court of Common Pleas, 

.]


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


 STATE OF OHIO EX REL. DANTE’ D.                                  C.A. Nos. 30825
 GORDON                                                                     30826
                                                                            30829
        Relator

        v.

 SUMMIT COUNTY COURT OF                                           ORIGINAL ACTION IN
 COMMON PLEAS, ET AL.                                             MANDAMUS, PROCEDENDO,
                                                                  AND PROHIBITION
        Respondents



Dated: November 15, 2023



        PER CURIAM.

        {¶1}      Relator, Dante’ D. Gordon, has petitioned this Court for writs of mandamus,

procedendo, and prohibition. Respondents, Summit County Common Pleas Court and two

common pleas court judges, have moved to dismiss. Because Mr. Gordon did not comply with

the mandatory requirements of R.C. 2969.25, this Court must dismiss this action.

        {¶2}      Mr. Gordon previously filed the same three cases in State ex rel. Gordon v. Summit

Cty. Court of Common Pleas, Summit App Nos. 30730, 30731, and 30732. This Court dismissed

those cases because Mr. Gordon failed to comply with the mandatory filing requirements of R.C.

2969.25. State ex rel. Gordon v. Summit Cty. Court of Common Pleas, 9th Dist. Summit Nos.

30730, 30731, and 30732, 

, ¶ 1.

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

action against a government employee or entity. The Summit County Court of Common Pleas is
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                                                                                               Page 2 of 4

a government entity, both judges are government employees, and Mr. Gordon, incarcerated in the

Belmont 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, 

,

, ¶ 6 (“The requirements of R.C. 2969.25 are mandatory, and failure to comply

with them subjects an inmate’s action to dismissal.”).

        {¶4}    Mr. Gordon 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).

         {¶5} Mr. Gordon filed an affidavit of prior civil actions along with his complaint. In his

 three-page affidavit, he included 11 numbered paragraphs. Some of those paragraphs included

 references to multiple civil actions or appeals. About two weeks after the complaints and

 affidavits were filed, Mr. Gordon moved to strike the affidavit or prior civil actions he had filed
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                                                                                             Page 3 of 4

to be replaced by corrected versions attached to his motion. That motion is denied for two reasons.

First, 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, 

,

. Second, even if we could consider the “corrected” affidavits, they still fail

to comply with the requirements of R.C. 2969.25(A).

       {¶6} A review of Mr. Gordon’s affidavit demonstrates that it is deficient. The affidavit

did not include the case name for any of the cases or appeals. The affidavit included the case

numbers for several cases, but omits it from others. The court in which the action was filed is

named for most, but not all, of the cases.

       {¶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. 

, ¶ 4,

quoting State v. Henton, 

, 

. As we noted in our prior

decision, the Supreme Court has concluded that an affidavit was deficient because it did not name

the parties or reveal the outcomes of the cases. Gordon, 

, ¶ 7, citing Westerfield

v. Bracy, Slip Opinion No. 

. Strict compliance with the language of the statute

is required by the Supreme Court’s decisions, and noncompliance with the statutory requirements

is fatal. 

 A deficient affidavit requires dismissal of the action. 

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

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

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

       {¶9} Mr. Gordon also failed to comply with R.C. 2969.25(C). An inmate seeking the

waiver of filing fees, as Mr. Gordon 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
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                                                                                             Page 4 of 4

of the inmate for each of the preceding six months, as certified by the institutional cashier[.]”

R.C. 2969.25(C)(1). Mr. Gordon filed an affidavit of indigency. He attached to that affidavit an

Inmate Demand Statement. That Statement, however, is not certified by the institutional cashier.

The Supreme Court has held that an action must be dismissed if the statement of the inmate

account filed by the petitioner was not certified by the institutional cashier. Grinnell v. Cool, Slip

Opinion No. 

. Likewise, Mr. Gordon’s statement is not certified and,

accordingly this Court must dismiss these actions.

       {¶10} The cases are dismissed. Costs taxed to Mr. Gordon. 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

SUTTON, P.J.
STEVENSON, J.
CONCUR.


APPEARANCES:

DANTE D. GORDON, Pro Se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JENNIFER M. PIATT, Assistant
Prosecuting Attorney, for Respondents.