State ex rel. Richard Swanson, Relator, v. Ohio Department of Rehabilitation and Correction, Respondent.
No. 18AP-136
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on September 18, 2018
[Cite as State ex rel. Swanson v. Dept. of Rehab. & Corr., 2018-Ohio-3761.]
(REGULAR CALENDAR)
Michael DeWine, Attorney General, and Jared S. Yee, for respondent.
IN MANDAMUS
ON OBJECTION TO MAGISTRATE‘S DECISION
KLATT, J.
{¶ 1} Relator, Richard Swanson, commenced this original action in mandamus seeking an order compelling respondent, Ohio Department of Rehabilitation and Correction, to properly calculate his sentence. Respondent has filed a motion to dismiss.
{¶ 2} Pursuant to
{¶ 3} Relator has filed an objection to the magistrate‘s decision. Relator contends he did list all civil actions in the pаst five years. We disagree.
{¶ 4} In her findings of fact, the magistrate determined that on January 30, 2018, relator filed a second рetition for a writ of mandamus in the Cuyahoga County Court of Appeals. Relator does not dispute this finding in his objection tо the magistrate‘s decision. Relator‘s February 13, 2018 affidavit does not list this action. Therefore, relator has failed to comply with the mandatory requirements of
{¶ 5} Following an independent review of this matter, we find that the magistrate has рroperly determined the facts and applied the appropriate law. Therefore, we adopt the decision as our own, including the findings of fact and conclusions of law contained therein. In accordanсe with the magistrate‘s decision, we grant respondent‘s motion to dismiss.
Motion to dismiss granted; writ of mandamus denied.
TYACK and SADLER, JJ., concur.
The State ex rel. Richard Swanson, Relator, v. Ohio Dеpartment of Rehabilitation and Correction, Respondent.
No. 18AP-136
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on May 9, 2018
(REGULAR CALENDAR)
M A G I S T R A T E ’ S D E C I S I O N
N U N C P R O T U N C1
Richard Swanson, pro se.
Michael DeWine, Attorney General, and Jared S. Yee, for respondent.
IN MANDAMUS
ON RESPONDENT‘S MOTION TO DISMISS
{¶ 6} Relator, Richard Swanson, has filed this original action requesting this court issue a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and Correction (“ODRC“), to properly calculate his sentence.
{¶ 7} 1. Relator is an inmate currently incarcerated at Marion Cоrrectional Institution.
{¶ 8} 2. On February 22, 2018, relator filed this mandamus action asserting that ODRC had improperly calculated his sentеnce.
{¶ 9} 3. At the time he filed this mandamus action, relator filed an affidavit of indigency and attached thereto a certified copy of his inmate account setting forth the balance for each of the preceding six months.
{¶ 10} 4. At thе time he filed this mandamus action, relator filed a prior actions affidavit asserting that he had filed two civil actions or appeals of civil actions in the state or federal courts within the past five years.
{¶ 11} 5. Relator failеd to include other cases he had filed including a petition for a writ of mandamus filed in the Cuyahoga County Court of Apрeals on October 21, 2015, a motion to correct void judgment filed in the underlying criminal case in the common pleas court in 2017, and a second petition for a writ of mandamus also filed in the Cuyahoga County Court of Appeals on Jаnuary 30, 2018.
{¶ 12} 6. On March 19, 2018, respondent filed a motion to dismiss.
{¶ 13} 7. Relator has not filed a reply to the motion to dismiss and the matter is сurrently before the magistrate.
Conclusions of Law:
{¶ 14} Because relator has failed to comply with the mandatory requirements of
{¶ 15} In Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, an inmate, Carlos J. Fuqua, filed in the Allen County Court of Appeals a petition for a writ of habеas corpus. He requested leave to proceed in forma pauperis but he did not file the affidavit requirеd by
{¶ 16} Fuqua‘s prison warden, Jesse J. Williams, moved to dismiss the petition.
{¶ 17} Fuqua requested leаve in the court of appeals to amend his petition with the affidavit required by
The Supreme Court of Ohio, in Fuqua at ¶ 9 states:
Fuqua‘s bеlated attempt to file the required affidavit does not excuse his non-compliance. See
R.C. 2969.25(A) , which requires that the affidavit be filed ”[a]t the time that an inmate commences a civil action or appeal against a government entity or employee.” (Emphasis added.)
{¶ 19} In Hawkins v. S. Ohio Corr. Facility, 102 Ohio St.3d 299, 2004-Ohio-2893, an inmate, Jomo Hawkins, petitioned the Scioto County Court of Appeals for a writ of habeas corpus. However, Hawkins’ petition did not contain the
{¶ 20} Following dismissal of his action, Hawkins appealed as of right to the Supreme Court of Ohio. Citing Fuqua, the Supreme Court affirmed the judgment of the court of appeals.
{¶ 21} As set forth in the findings оf fact, relator did not include all other cases he had filed in the past five years. Pursuant to the above-citеd authority and because relator cannot cure this deficiency now or at a later date, it is the magistrate‘s decision that this court should dismiss relator‘s complaint. Further, pursuant to the above-cited authority, inasmuch as relator did not prevail and did not establish indigency, this court should order relator to pay the costs of the procеedings.
/S/ MAGISTRATE
STEPHANIE BISCA