The opinion
[Cite as State ex rel. Stevens v. Hoying, 2024-Ohio-1999.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jeremy T. Stevens, :
Relator, :
v. : No. 23AP-768
: (REGULAR CALENDAR)
Lisa T. Hoying,
:
Respondent.
:
D E C I S I O N
Rendered on May 23, 2024
On brief: Jeremy T. Stevens, pro se.
On brief: Dave Yost, Attorney General, and Andrew Gatti,
for respondent.
IN MANDAMUS
ON MOTION TO DISMISS
MENTEL, P.J.
{¶ 1} After the Ohio Parole Board (“OPA”) entered an order finding that relator,
Jeremy T. Stevens, violated the terms of his post-release control, he commenced this
original action requesting a writ of mandamus ordering OPA chair, respondent, Lisa T.
Hoying, to vacate the order. Respondent filed a motion to dismiss this action under Civ.R.
12(B)(6), arguing that the affidavit of indigency that Mr. Stevens filed failed to comply with
the requirements of R.C. 2969.25(C) governing inmate filings.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate. The magistrate recommends that we grant
respondent’s motion and dismiss this action because the affidavit and its accompanying
documentation is incomplete, and therefore does not satisfy R.C. 2969.25(C).
No. 23AP-768 2
{¶ 3} The magistrate’s decision informed the parties of their right to file objections
to his recommendation under Civ.R. 53(D)(3)(b). Mr. Stevens filed no objection. “If no
timely objections are filed, the court may adopt a magistrate’s decision, unless it determines
that there is an error of law or other defect evident on the face of the magistrate’s decision.”
Civ.R. 53(D)(4)(c). Our review of the magistrate’s decision reveals no error of law or other
evident defect. See, e.g., State ex rel. Alleyne v. Indus. Comm., 10th Dist. No. 03AP-811,
2004-Ohio-4223 (adopting the magistrate’s decision where no objections filed). As the
magistrate notes, dismissal of an action for failing to comply with the procedural
requirements of R.C. 2969.25 is a dismissal without prejudice.
{¶ 4} Finding no error of law or other defect on the face of the magistrate’s decision,
we adopt it in its entirety, grant the motion to dismiss, and dismiss this action.
Motion granted; action dismissed.
BEATTY BLUNT and LELAND, JJ., concur.
_________________
No. 23AP-768 3
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jeremy T. Stevens, :
Relator, :
v. : No. 23AP-768
:
Lisa Hoying, (REGULAR CALENDAR)
:
Respondent.
:
MAGISTRATE’S DECISION
Rendered on February 20, 2024
Jeremy T. Stevens, pro se.
Dave Yost, Attorney General, and Andrew Gatti, for
respondent.
IN MANDAMUS
ON MOTION TO DISMISS
{¶ 5} Relator Jeremy T. Stevens seeks a writ of mandamus ordering respondent
Lisa Hoying, chair of the Ohio Parole Board (“parole board”), to vacate the order finding
relator violated the terms of his postrelease control and to enter an order finding
insufficient evidence was presented to find relator guilty of the charged violation.
Respondent has filed a motion to dismiss.
I. Findings of Fact
{¶ 6} 1. At the time of the filing of this action, relator was an inmate incarcerated
at the Lorain Correctional Institution in Grafton, Ohio.
{¶ 7} 2. As the chair of the parole board, respondent is a government employee.
The parole board is an administrative section of the Ohio Adult Parole Authority
No. 23AP-768 4
(“OAPA”), which itself is an administrative section of the Ohio Department of
Rehabilitation and Correction (“ODRC”). See R.C. 5149.02.
{¶ 8} 3. On December 22, 2023, relator commenced this action by filing his
petition for writ of mandamus.
{¶ 9} 4. In his petition, relator asserts that OAPA “had no right to charge me with
a gun,” as the gun “was not mine, in a house that was not mine.” (Compl. at 2.) Relator
states there is no other way to receive the remedy sought in this action because parole
board decisions are not appealable. Relator requests the following relief: “That a writ of
mandamus issue to the Respondent directing them to take action as follows: to vacate the
order finding [relator] violated the terms of post release control and to enter an order
finding insufficient evidence was presented to find [relator] guilty of [the] charged
violation.” (Compl. at 4.)
{¶ 10} 5. Along with his petition, relator filed an affidavit of indigency in which he
states that because he is “indigent, unable to pay the Court’s full filing fees and security
deposit,” he “seek[s] a waiver of the payment of the fees and deposit.” (Relator’s Aff. of
Indigency at 2.)
{¶ 11} 6. On January 30, 2024, respondent filed a motion to dismiss.
II. Discussion and Conclusions of Law
{¶ 12} Respondent asserts this matter must be dismissed for failure to state a claim
upon which relief can be granted pursuant to Civ.R. 12(B)(6) because relator has failed to
comply with R.C. 2969.25(C). R.C. 2969.25(A) and (C) provide procedural requirements
for inmates commencing a civil action or appeal against a government entity or employee.
See State ex rel. Foster v. Foley, 170 Ohio St.3d 86, 2022-Ohio-3168, ¶ 10; State ex rel.
Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6.
Compliance with the inmate filing requirements of R.C. 2969.25 is mandatory, and failure
to comply compels dismissal. Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859, ¶ 1.
{¶ 13} With regard to the requirements for an affidavit of indigency, the statute
provides as follows:
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
No. 23AP-768 5
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.
R.C. 2969.25(C). R.C. 2969.21 provides definitions applicable to R.C. 2969.25. The term
“inmate account” is defined as “an account maintained by the department of
rehabilitation and correction under rules adopted by the director of rehabilitation and
correction pursuant to section 5120.01 of the Revised Code or a similar account
maintained by a sheriff or any other administrator of a jail or workhouse or by the
administrator of a violation sanction center.” R.C. 2969.21(E).
{¶ 14} Substantial compliance with the inmate filing requirements of R.C. 2969.25
is not sufficient. State ex rel. McGlown v. Mohr, 10th Dist. No. 14AP-478, 2015-Ohio-
1554, ¶ 9, citing State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4;
State ex rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, ¶ 7. Nor can a deficiency
in compliance with the statutory requirements present at the time of the filing of the
complaint or petition be cured at a later date. State ex rel. Swopes v. McCormick, 171 Ohio
St.3d. 492, 2022-Ohio-4408, ¶ 14 (stating that “all avenues for curing a failure to comply
with R.C. 2969.25” were “expressly foreclosed”) (Emphasis sic.)); State ex rel. Young v.
Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9 (stating that failure to comply with the
mandatory requirements of R.C. 2969.25 “is not curable by subsequent amendment” and
that a “belated attempt to file an affidavit that complies with R.C. 2969.25 does not excuse
the noncompliance”); Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9; Boles
at ¶ 2. Furthermore, the Supreme Court of Ohio has held that a court does not err by sua
sponte dismissing an original action for failure to comply with the inmate filing
requirements in R.C. 2969.25. State ex rel. Bey v. Bur. of Sentence Computation, 166
Ohio St.3d 497, 2022-Ohio-236, ¶ 19; State ex rel. Watkins v. Andrews, 142 Ohio St.3d
308, 2015-Ohio-1100, ¶ 8; State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-
3735, ¶ 5.
No. 23AP-768 6
{¶ 15} In this case, relator filed with his petition an affidavit of indigency. Attached
to the affidavit of indigency is a form entitled “financial certificate,” which indicates that
it was “[t]o be completed by the institution of incarceration.” (Relator’s Aff. of Indigency
at 3.) The form contains spaces for the institutional cashier to provide the following
information: their name, their signature, and amounts certified to reflect relator’s inmate
account balance for each of the previous six months. However, these spaces on the form
are not completed and the above-listed information does not appear elsewhere in relator’s
affidavit or petition. Another form attached to relator’s affidavit, which is captioned
“Court Certification” and appears to have been certified by the institutional cashier, sets
forth information including, but not limited to, a total first day balance and average first
day balance for the period beginning June 13, 2023 and ending December 13, 2023.
However, this form does not set forth relator’s inmate account balance for each of the
preceding six months. Thus, relator’s affidavit fails to contain a statement certified by the
institutional cashier that sets forth the balance in relator’s inmate account for each of the
preceding six months as required by R.C. 2969.25(C)(1). See State ex rel. Swanson v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 20AP-151, 2021-Ohio-338, ¶ 7; State ex rel. Sands
v. Lake Cty. Common Pleas Court, 172 Ohio St.3d 146, 2023-Ohio-2599, ¶ 8; Greene v.
Turner, 151 Ohio St.3d 513, 2017-Ohio-8305, ¶ 6.
{¶ 16} Because relator has failed to fully comply with the mandatory requirements
of R.C. 2969.25(C) at the time of the filing of his petition, this action must be dismissed.
State ex rel. Armengau v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 15AP-1070, 2017-
Ohio-368, ¶ 13; Sands at ¶ 11; State ex rel. Roden v. Ohio Dept. of Rehab. & Corr., 159
Ohio St.3d 314, 2020-Ohio-408, ¶ 9; State ex rel. Swain v. Ohio Adult Parole Auth., 10th
Dist. No. 16AP-519, 2017-Ohio-517, ¶ 5. Although relator’s action must be dismissed for
failing to comply with R.C. 2969.25, it is noted that “a dismissal for failure to meet the
requirements of R.C. 2969.25 is not a dismissal on the merits.” (Emphasis added.)
Watkins, 2015-Ohio-1100, at ¶ 8, citing Hall, 2014-Ohio-3735, at ¶ 5.
{¶ 17} Accordingly, it is the decision and recommendation of the magistrate that
respondent’s motion to dismiss should be granted and this action dismissed.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
No. 23AP-768 7
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court’s adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.