[Cite as State ex rel. Ware v. Ferrero,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE EX REL. KIMANI E. WARE JUDGES: Hon. William B. Hoffman, P.J Relator Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2019CA00079 JOHN D. FERRERO, PROSECUTOR, et al.,

Respondents O P I N IO N

CHARACTER OF PROCEEDINGS: WRIT OF MANDAMUS

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 23, 2019

APPEARANCES:

For Relator For Respondents

KIMANI WARE JOHN D. FERRERO Inmate #A470743 Stark County Prosecuting Attorney Trumbull Correctional Institute P.O. Box 901 DAVID E. DEIBEL Leavittsburg, Ohio 44430 Assistant Prosecuting Attorney Civil Division 110 Central Plaza South, Suite 510 Canton, Ohio 44702 Stark County, Case No. 2019CA00079 2

Hoffman, P.J. {¶1} On July 30, 2019, Kimani Ware filed a petition for writ of mandamus to

compel the Stark County Prosecutor, John D. Ferrero, and assistant prosecuting

attorneys, Deborah A. Dawson and David E. Deibel, to respond to his public records

request served on the Stark County Prosecutor’s Office, by certified mail, on February 28,

2019. Mr. Ware requested the following public records: (1) all calendars of Stark County

Prosecutors, Ferrero, Dawson and Deibel from January 1, 2019 through February 15,

2019; (2) personnel files of Dawson, Deibel, and Cheryl Parsons; (3) copies of the Stark

County Prosecutor’s employee handbook and public records request poster; (4)

performance evaluation forms for Dawson, Deibel, and Parsons; (5) copies of the Stark

County Prosecutor’s office’s policies, public records policy, records retention schedule,

and records retention policy; and (6) copies of Prosecutor Ferrero’s certificate of election,

oath of office, and the Stark County Prosecutor’s office organizational chart.

{¶2} For a writ of mandamus to issue, the Relator must have a clear legal right

to the relief prayed for, the Respondent must be under a clear legal duty to perform the

requested act, and Relator must have no plain and adequate remedy in the ordinary

course of law. (Citations omitted.) State ex rel. Berger v. McMonagle,

,

(1983). Prosecutor Ferrero has moved to dismiss Mr. Ware’s writ

under Civ.R. 12(B)(6).

{¶3} The Court grants Prosecutor Ferrero’s motion because Mr. Ware failed to

satisfy the statutory requirements of R.C. 2969.25. This statute contains specific filing

requirements for inmates who file a civil action against a government employee or entity.

The statutory requirements of R.C. 2969.25 apply here because Prosecutor Ferrero and

the employees of the prosecutor’s office are “government employees” and the Stark Stark County, Case No. 2019CA00079 3

County Prosecutor’s Office is a “government entity” as those terms are defined under

R.C. 2969.21(B)(1)(a) and (C). Further, Mr. Ware is incarcerated in the Trumbull

Correctional Institution and therefore satisfies the definition of “inmate” under R.C.

2969.21(D).

{¶4} Under R.C. 2969.25(A), an inmate who files a civil action or appeal against

a government entity or employee “shall 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.” An inmate is required to strictly comply

with the statute. State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr.,

,

. The affidavit must contain certain information, including:

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.

{¶5} R.C. 2969.25(A)(4)

{¶6} Failure to follow the mandatory requirements of R.C. 2969.25(A) in the

commencement of an action requires dismissal. State ex rel. Graham v. Findlay Mun.

Court,

,

, ¶6. (“The requirements of R.C. 2969.25 are Stark County, Case No. 2019CA00079 4

mandatory, and failure to comply with them subjects an inmate’s action to dismissal.”)

See also State ex rel. Hall v. Mohr,

,

. Further, the

Ohio Supreme Court recently reaffirmed the mandatory nature of the statute in Swanson,

where the Court dismissed a mandamus action because the inmate failed to include in

his affidavit a mandamus action that he had filed two weeks earlier. Swanson, 2019-Ohio-

1271, at ¶7.

{¶7} Here, Mr. Ware attached an affidavit to his petition in which he identified

eight prior civil actions. In all eight of the identified civil actions, Mr. Ware failed to provide

the outcome for any of the listed civil actions, and in two of the listed civil actions (Case

No. 19AP161, Tenth District Court of Appeals and Case No. CA-29344, Ninth District

Court of Appeals), he failed to describe the nature of the two civil actions. Mr. Ware

contends, in his reply to the motion to dismiss, that he satisfied the requirements of R.C.

2969.25(A)(4) because he stated, at the bottom of the affidavit: “No civil action filed by

mentioned above were never (sic) deemed by any court as frivolous or malicious.”

However, this statement does not address the deficiencies noted above.

{¶8} Mr. Ware’s affidavit does not comply with the mandatory requirements of

R.C. 2969.25(A) and therefore, this case is dismissed. Stark County, Case No. 2019CA00079 5

{¶9} 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).

By: Hoffman, P.J. Delaney, J. and Wise, Earle J. concur