[Cite as State ex rel. Tolliver v. Franklin Cty. Court Clerk, 2023-Ohio-3435.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Kevin A. Tolliver, : 

Relator, :

v. : No. 22AP-90

Clerk of Franklin County Courts, : (REGULAR CALENDAR)

 

Respondent. :

D E C I S I O N

Rendered on September 26, 2023

On brief: Kevin A. Tolliver, pro se. 

On brief: G. Gary Tyack, Prosecuting Attorney, and 

Nickole K. Iula, for respondent.

IN MANDAMUS

ON RESPONDENT’S MOTION TO DISMISS AND SUA SPONTE DISMISSAL

MENTEL, J.

{¶ 1} Relator, Kevin A. Tolliver, brought this original action seeking a writ of 

mandamus ordering respondent, the Franklin County Clerk of Courts, to file a complaint 

that he alleges he mailed but was not filed, and to perform a number of other administrative 

duties in that and another case. Respondent filed a motion to dismiss. The parties have 

various other filings pending, as outlined by the magistrate below.

{¶ 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 dismiss this 

action sua sponte because relator has failed to file the affidavit required by R.C. 2969.25 

disclosing all civil actions he has filed in the past five years.
No. 22AP-90 2

{¶ 3} Mr. Tolliver filed no objection to the magistrate’s decision. “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). We agree 

with the magistrate’s conclusion that Mr. Tolliver’s failure to file the affidavit mandated by 

R.C. 2969.25 requires dismissal of this action. Accordingly, we adopt the decision of the 

magistrate, grant respondent’s motion, and dismiss the action for lack of jurisdiction.

Motion to dismiss granted; 

action dismissed. 

BEATTY BLUNT, P.J. and DORRIAN J., concur.

_________________
No. 22AP-90 3

 APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Kevin A. Tolliver, : 

Relator, :

v. : No. 22AP-90

Clerk of Franklin County Courts, : (REGULAR CALENDAR)

 

Respondent. :

M A G I S T R A T E ' S D E C I S I O N

Rendered on August 3, 2022

Kevin A. Tolliver, pro se. 

G. Gary Tyack, Prosecuting Attorney, and Nickole K. Iula, for 

respondent.

IN MANDAMUS

ON MOTIONS AND SUA SPONTE DISMISSAL 

{¶ 4} Kevin A. Tolliver has filed this original action requesting that this court issue 

a writ of mandamus ordering respondent, Franklin County Clerk of Courts, to (1) file the 

complaint, affidavit of indigence, and request for joinder in Kevin A. Tolliver v. The Ohio 

Parole Board and Ohio Department of Rehabilitation and Corrections ("Tolliver"),

received in its office by certified mail on November 22, 2021; (2) to assign a case number 

within the purview of a judge and/or joinder to Brust (and Grasa) v. Ohio Parole Board 

and Ohio Department of Rehabilitation and Corrections, Franklin County, Franklin Case 

No. 21-CV3015 ("Brust"); and (3) send an appropriately time-stamped receipt for these 
No. 22AP-90 4

documents certifying that they have been received by the clerk via said certified receipt. The 

following motions are also pending: respondent's February 17, 2022, motion to dismiss; 

relator's March 15, 2022, motion for summary judgment/declaratory judgment; relator's 

April 28, 2022, motion to show cause and request for restraining order; relator's May 24, 

2022, motion to strike the motion to show cause; and relator's July 12, 2022, motion to file 

instanter a reply to respondent's memorandum in opposition to his motion to strike.

Findings of Fact:

{¶ 5} 1. At the time of the filing of his complaint, relator was an inmate incarcerated 

at Grafton Correctional Institution ("GCI"). 

{¶ 6} 2. Respondent is a governmental entity that, among other things, accepts, 

processes, and manages court filings. 

{¶ 7} 3. According to relator's complaint, on September 30, 2021, relator mailed to 

respondent a complaint against the Ohio Parole Board and Ohio Department of 

Rehabilitation and Correction ("ODRC") with an affidavit of indigence and request to join 

the case with Brust. However, respondent did not file the complaint. 

{¶ 8} 4. According to relator's complaint, relator made three phone calls to 

respondent's office, and relator discussed the matter with respondent's employee. The 

employee indicated she could not find any record of relator's complaint.

{¶ 9} 5. According to relator's complaint, relator then sent, via certified mail, the 

same complaint and filings to respondent, and respondent received the certified mail on 

November 22, 2021. 

{¶ 10} 6. According to relator's complaint, relator made two phone calls to 

respondent's office, and respondent's employee confirmed that the pleading was received, 

but it was not filed and could not be located.

{¶ 11} 7. On February 9, 2022, relator filed a complaint for writ of mandamus 

requesting that this court order respondent to (1) file the complaint, affidavit of indigence, 

and request for joinder in Tolliver, received in its office by certified mail on November 22, 

2021; (2) assign a case number and judge to Tolliver; and (3) send an appropriately time-
No. 22AP-90 5

stamped receipt for these documents certifying that they have been received by respondent 

via said certified receipt. Relator also filed an affidavit of indigency, indicating that he was 

unable to pay the costs associated with the filing of the action.

{¶ 12} 8. On February 17, 2022, respondent filed a motion to dismiss, asserting the 

following: (1) relator has no clear legal right to the relief requested, because relator failed to 

file with his complaint mailed to respondent an affidavit that contains a description of each 

civil action that the inmate has filed in the previous five years in any state or federal court, 

as required by R.C. 2969.25(A); and (2) relator has an adequate remedy at law pursuant to 

R.C. 2701.20, which allows a filer, whose document a clerk of courts refuses to accept 

because it was not required or authorized, to commence an action in or apply for an order 

from the court that the clerk serves requiring the clerk to accept the document for filing. 

{¶ 13} 9. On March 15, 2022, relator filed a memorandum in opposition to 

respondent's motion to dismiss and motion for summary judgment/declaratory judgment. 

In the memorandum, relator contends that: (1) On February 10, 2022, respondent filed the 

Tolliver documents it received on November 22, 2021, with a filing date of February 10, 

2022; (2) thus, a portion of the mandamus action is moot; however, respondent has not 

recorded these documents as having been filed on or about November 22, 2021, the date of 

the certified receipt; (3) relator never received the return of either filing from respondent 

and had no notice of any flaw in his filing; (4) the only issue remaining in mandamus is 

whether the February 10, 2022, filing in Tolliver should bear the filing date of November 

22, 2021; and (5) the two-year statutory deadline for the complaint in Tolliver was 

December 29, 2021. Relator also requests a declaratory judgment ordering that the filing 

date for the Tolliver complaint be deemed November 22, 2021. 

{¶ 14} 10. On March 22, 2022, respondent filed a memorandum contra relator's 

memorandum in opposition to respondent's motion to dismiss, asserting the following: (1) 

the documents relator mailed to respondent in September and November 2021 were 

rejected and notices were sent to respondent; (2) relator admits that he never received the 

notice of rejection mail by respondent and that an exceptional event occurred in posting 

that is not the fault of either party; thus, this court cannot hold respondent responsible for 

the independent actions of a third party; (3) this court, not respondent, has the ability to 
No. 22AP-90 6

correct clerical errors under Civ.R. 60(A), which is limited to a mistake or omission 

mechanical in nature and apparent on the record that does not involve a legal decision or 

judgment; (4) because the issue in the current case is the filing date for a complaint, no 

record prior to February 10, 2022, exists, and relator cannot prove that a mistake or 

omission in the record exists; and (5) it was relator's responsibility to ensure that his filings 

are timely, and relator waited 49 days to resubmit his documents after his September 

submission was rejected and 79 days after receiving confirmation that his November 

documents were received before filing his mandamus complaint.

{¶ 15} 11. On April 7, 2022, relator filed a judicial notice of uncited controlling rule 

and more definite statement clarifying his request for mutual agreement of dismissal, 

asserting the following: (1) Civ.R. 5(E) provides that if a document is rejected, the clerk will 

notify the filer of the deficiency; (2) respondent only "attempted" to notify relator and did 

not provide "actual" notice of the deficiency; and (3) respondent has presented no evidence 

of notification or attempted notification.

{¶ 16} 12. On April 28, 2022, relator filed a motion to show cause and request for 

order restraining ODRC from acting against policy established under Adm.Code. 5120-9-

17, which provides that legal mail may only be opened and inspected for contraband by the 

correctional institution in the presence of the inmate. 

{¶ 17} 13. On May 4, 2022, respondent filed a memorandum in opposition to 

relator's motion to show cause, in which respondent argued that this court cannot issue an 

order granting the motion to show cause against ODRC because ODRC is not a party to this 

action. 

{¶ 18} 14. On May 24, 2022, relator filed a motion to strike the motion to show 

cause, in which he acknowledged that ODRC is not a party to this action and his motion to 

show cause is improper.

{¶ 19} 15. On May 31, 2022, respondent filed a memorandum in opposition to the 

motion to strike, claiming that relator provided no proper reason to strike the motion to 

show cause, and the motion to show cause appears to acknowledge that ODRC could be the 

party responsible for the filing delays at issue in the present case. 
No. 22AP-90 7

{¶ 20} 16. On July 12, 2022, relator filed a motion to file instanter a reply to 

respondent's memorandum in opposition to his motion to strike. 

Conclusions of Law:

{¶ 21} The magistrate recommends that this court sua sponte dismiss relator's 

complaint for writ of mandamus.

{¶ 22} In order for this court to issue a writ of mandamus, a relator must ordinarily 

show a clear legal right to the relief sought, a clear legal duty on the part of the respondent 

to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. 

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A relator bears the burden 

of persuasion to show entitlement to a writ of mandamus by clear and convincing evidence.

Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 

¶ 26. "Clear and convincing evidence" is a measure or degree of proof that is more than a 

preponderance of evidence, but it does not extend the degree of certainty beyond a 

reasonable doubt as required in a criminal case; clear and convincing evidence produces in 

the trier of fact's mind a firm belief of the fact sought to be established. State ex rel. Miller 

v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 14.

{¶ 23} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the 

complaint. "In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6) 'it must appear 

beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him 

to recovery.' " T & M Machines, LLC v. Yost, 10th Dist. No. 19AP-124, 2020-Ohio-551, ¶ 10, 

quoting O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), 

syllabus. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume 

that all factual allegations in the complaint are true and make all reasonable inferences in 

the plaintiff's favor. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio3608, ¶ 14. 

{¶ 24} However, before the magistrate addresses respondent's motion to dismiss, 

the magistrate must address the requirements in R.C. 2969.25. R.C. 2969.25(A) requires 

an inmate to file, at the time he commences a civil action against a governmental entity or 
No. 22AP-90 8

employee, an affidavit listing each civil action or appeal of a civil action that he filed in the 

past five years. R.C. 2969.25(A) provides:

At the time that an inmate commences a civil action or appeal 

against a government entity or employee, the inmate 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. The 

affidavit shall include all of the following for each of those civil 

actions or appeals:

(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.

* * * 

(C) 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 

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;
No. 22AP-90 9

(2) A statement that sets forth all other cash and things of

value owned by the inmate at that time.

R.C. 2969.25 (A)(1) through (4) and (C)(1) and (2).

{¶ 25} R.C. 2969.25 requires strict compliance. State ex rel. Swanson v. Ohio Dept. 

of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6. Compliance with the provisions 

of R.C. 2969.25 is mandatory and the failure to satisfy the statutory requirements is 

grounds for dismissal of the action. State ex rel. Washington v. Ohio Adult Parole Auth., 

87 Ohio St.3d 258 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 

(1998). Nothing in R.C. 2969.25 permits substantial compliance. State ex rel. Manns v. 

Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4, citing Martin v. Ghee, 10th Dist. No. 

01AP-1380, 2002-Ohio-1621. Furthermore, the failure to comply with R.C. 2969.25 cannot 

be cured at a later date by belatedly attempting to file a complaint affidavit. State ex rel. 

Young v. Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9.

{¶ 26} In the present case, relator failed to file an affidavit as required by 

R.C. 2969.25(A). Relator also does not give any indication in his complaint that he has filed 

no civil actions or appeals of a civil action in the previous five years in any state or federal 

court. See State ex rel. Jones v. Franklin Cty. Common Pleas Court Adm. Judge, 10th Dist. 

No. 21AP-662, 2022-Ohio-1296, ¶ 8 (magistrate's decision) (finding that, if the inmate has 

no prior civil actions to list, no R.C. 2969.25(A) affidavit need be filed; in such cases, 

however, the inmate must file a statement with his complaint declaring that there are no 

prior civil actions to list; failure to include such a statement is grounds for dismissal under 

the same conditions as an incomplete or absent affidavit where one would be required), 

citing Kachermeyer v. Tolson, 10th Dist. No. 01AP-1186, 2002-Ohio-2092. Given the lack 

of an R.C. 2969.25(A) affidavit or any mention in his complaint that he has filed no other 

civil actions or appeals in the preceding five years, relator has failed to comply with R.C. 

2969.25(A).

{¶ 27} Furthermore, relator has 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. In this case, in contravention of R.C. 2969.25(C), relator did not file a statement of 

his prisoner trust account that sets forth the balance in his inmate account for each of the 
No. 22AP-90 10

preceding six months, as certified by the institutional cashier. The Supreme Court of Ohio 

has "affirmed dismissals of inmate actions when the inmate had failed to submit the 

account statement required by R.C. 2969.25(C)(1)." State ex rel. Roden v. Ohio Dept. of 

Rehab. & Corr., 159 Ohio St.3d 314, 2020-Ohio-408, ¶ 8. Therefore, relator's failure to 

submit a statement of his prisoner trust account is an additional ground for dismissal. 

{¶ 28} Accordingly, it is the magistrate's decision that, based upon relator's failure 

to comply with the mandatory filing requirements of R.C. 2969.25, this court should sua 

sponte dismiss relator's complaint for writ of mandamus. All other pending motions are 

denied as moot. 

/S/ MAGISTRATE 

 THOMAS W. SCHOLL III

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).