[Cite as State ex rel. Brown v. Walker, 2022-Ohio-4680.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

COLUMBIANA COUNTY

STATE OF OHIO EX REL.,

TERRY BROWN,

Relator,

v.

SHERIFF DETECTIVE,

STEVEN S. WALKER,

Respondent.

OPINION AND JUDGMENT ENTRY

Case No. 22 CO 0030

Writ of Mandamus

BEFORE:

Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.

JUDGMENT:

Dismissed.

Terry Brown, pro se, Belmont Correctional Institution, 68518 Bannock Road, St. 

Clairsville, Ohio 43950, Relator and

Atty. Vito Abruzzino, Columbiana County Prosecutor, Atty. Krista R. Peddicord, 

Assistant Prosecuting Attorney, 135 S. Market Street, Lisbon, Ohio 44432, for 

Respondent.
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Case No. 22 CO 0030

Dated: December 22, 2022

PER CURIAM.

{¶1} Relator Terry Brown has filed a petition for a writ of mandamus naming as 

Respondent, Sheriff Detective Steven S. Walker. Respondent participated in the 

investigation leading to Relator’s conviction, following guilty pleas, for aggravated murder, 

aggravated robbery, abuse of a corpse, and tampering with evidence. Respondent has 

filed a motion to dismiss. Because Relator’s petition does not comply with the mandatory 

requirements of R.C. 2969.25 and the court is without jurisdiction over the substance of 

Relator’s petition, the 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. Respondent is a government 

employee and Relator, incarcerated in the Belmont Correctional Institution, is a selfrepresented 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-Ohio3671, 831 N.E.2d 435, ¶ 6 (“The requirements of R.C. 2969.25 are mandatory, and failure 

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

{¶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). Relator’s petition 

contains no such affidavit.

{¶4} Second, Relator did not pay the cost deposit required by Loc.R. 2. He also 

failed to comply with R.C. 2969.25(C), which sets forth specific requirements for an 

inmate who seeks to proceed without paying the cost deposit. He did not file an affidavit 

of waiver and an affidavit of indigency containing a statement of his prisoner trust account 

that sets forth the balance in his inmate account for each of the preceding six months, as 

certified by the institutional cashier, as required by R.C. 2969.25(C).

{¶5} Turning to the petition itself, although titled as an action in mandamus, it is 

in substance a private citizen affidavit filed pursuant to R.C. 2935.09 and 2935.10 seeking 

to have this court issue a warrant for Respondent’s arrest and prosecute him for a variety 
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Case No. 22 CO 0030

of offenses Relator alleges Respondent committed in the course of the investigation and 

prosecution of Relator.

{¶6} R.C. 2935.09 provides various procedures for using an affidavit to cause 

the arrest and criminal prosecution of a person. R.C. 2935.09(D) authorizes a private 

citizen to file an affidavit charging an offense “with the clerk of a court of record.” 

(Emphasis added.) If the affidavit alleges a felony, unless the judge, clerk, or magistrate 

has reason to believe that the affidavit was not filed in good faith or lacks merit, he or she 

must issue a warrant for the arrest of the person identified in the affidavit or refer the 

matter to the prosecuting attorney for investigation. R.C. 2935.10(A); see also State ex 

rel. Brown v. Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, 95 N.E.3d 365, ¶ 12 

(discussing a “trial court’s obligations” with regard to citizen affidavits). The Supreme 

Court of Ohio has specifically held that a court of appeals is not a court of record under 

R.C. 2935.09. In re Affidavit of Helms, 166 Ohio St.3d 548, 2022-Ohio-293, 188 N.E.3d 

166, ¶ 8. Therefore, this court is without jurisdiction to consider Relator’s citizen affidavit.

{¶7} Accordingly, in consideration of the foregoing and upon consideration of 

Respondent’s motion to dismiss, IT IS ORDERED by the court that said motion be, and 

the same is hereby, GRANTED, the writ is DENIED, and this original action DISMISSED.

{¶8} IT IS FURTHER ORDERED by the court, pursuant to Civ.R. 58, that the 

Clerk of the Columbiana County Court of Appeals shall immediately serve upon all parties 

(including unrepresented or self-represented parties) notice of this judgment and its date 

of entry upon the journal. Costs taxed to Relator.

JUDGE CAROL ANN ROBB

JUDGE CHERYL L. WAITE

JUDGE DAVID A. D’APOLITO

NOTICE TO COUNSEL

This document constitutes a final judgment entry.