[Cite as State ex rel. Swain v. Ohio Adult Parole Auth., 2017-Ohio-517.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Sean Swain, : 

 

 Relator, : 

v. : No. 16AP-519 

 

The Ohio Adult Parole Authority et al., : (REGULAR CALENDAR) 

 

 Respondents. : 

 

D E C I S I O N 

Rendered on February 14, 2017 

 

Sean Swain, pro se. 

Ron O'Brien, Prosecuting Attorney, and Thomas C. Miller, 

for respondents. 

 

IN MANDAMUS 

ON OBJECTIONS TO MAGISTRATE'S DECISION 

KLATT, J. 

{¶ 1} Relator, Sean Swain, commenced this original action in mandamus seeking 

an order compelling respondents, the Ohio Adult Parole Authority and the Ohio 

Department of Rehabilitation and Correction, to expunge his records of allegedly 

inaccurate information and to rehear relator's parole eligibility determination. 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, we referred this matter to a magistrate who issued a decision, including findings 

of fact and conclusions of law, which is appended hereto. The magistrate found that 

relator failed to comply with R.C. 2969.25(C) because he failed to provide with his 

affidavit of indigency that was filed with his complaint a statement of the amount in his 

inmate account for each of the preceding six months as certified by the institutional 
No. 16AP-519 2 

cashier. Therefore, the magistrate has recommended that this court sua sponte dismiss 

this action. 

{¶ 3} Relator has filed objections to the magistrate's decision. In his objections, 

relator argues that subsequent to the filing of his complaint and affidavit of indigency, he 

filed an affidavit authenticating two requests for the prison cashier to send a six-month 

statement to the court. The record also reflects that approximately two weeks after relator 

filed his complaint, relator filed statements for his prison account covering the past six 

months. In essence, it appears that relator is attempting to retroactively comply with the 

requirements of R.C. 2969.25(C). Relator's argument is not supported by Ohio law. 

{¶ 4} As noted by the magistrate, an inmate who seeks waiver of prepayment of 

the filing fee on the ground of indigency must file with the complaint an affidavit that 

includes: (1) a statement of the amount in the inmate's account for each of the preceding 

six months as certified by the institutional cashier, and (2) a statement of all other cash 

and things of value owned by the inmate. R.C. 2969.25(C). Compliance with the 

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

ground for dismissal of the action. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 

2006-Ohio-1507, ¶ 5-7; State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-

Ohio-854, ¶ 5-6. 

{¶ 5} Our review of the record indicates that relator failed to file with his 

complaint and affidavit of indigency the documents required by R.C. 2969.25(C). Relator 

cannot cure this deficiency by attempting to comply with the statutory requirements after 

the fact. For this reason, we overrule relator's objections. We agree with the magistrate's 

recommendation to sua sponte dismiss relator's complaint due his failure to comply with 

R.C. 2969.25(C). 

{¶ 6} Following an independent review of this matter, we find that the magistrate 

has properly determined the facts and applied the appropriate law. Therefore, we adopt 

the magistrate's decision as our own, including the findings of fact and conclusions of law 

contained therein. In accordance with the magistrate's decision, we sua sponte dismiss 

this action. Relator's remaining pending motions are thereby rendered moot. 

Case dismissed.

LUPER SCHUSTER and BRUNNER, JJ., concur. 

 
No. 16AP-519 3 

 
No. 16AP-519 4 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Sean Swain, : 

 

 Relator, : 

v. : No. 16AP-519 

 

The Ohio Adult Parole Authority, : (REGULAR CALENDAR) 

 

 Respondent. : 

 

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

Rendered on July 29, 2016

 

Sean Swain, pro se. 

Ron O'Brien, Prosecuting Attorney, and Jason S. Wagner, 

for respondent. 

 

IN MANDAMUS 

ON SUA SPONTE DISMISSAL 

{¶ 7} Relator, Sean Swain, has filed this original action requesting that this court 

issue a writ of mandamus ordering the Ohio Adult Parole Authority and the Ohio 

Department of Rehabilitation and Correction to "expunge [his] records of inaccurate 

information * * * and to re-hear relator's prior parole eligibility hearings in which 

inaccurate information was relied upon, providing Relator a meaningful opportunity for 

parole based upon accurate factual findings." 

 
No. 16AP-519 5 

Findings of Fact: 

{¶ 8} 1. Relator is an inmate currently incarcerated at Warren Correctional 

Institution. 

{¶ 9} 2. On July 14, 2016, relator filed this mandamus action. 

{¶ 10} 3. At the time he filed his action, relator did file a prior actions affidavit. 

{¶ 11} 4. At the time he filed his mandamus action, relator filed a motion to 

proceed in forma pauperis; however, relator failed to provide the relevant information, 

failed to ask for a waiver of the prepayment of fees, and failed to include a statement in his 

inmate account for each of the preceding six months, as certified by the institutional 

cashier. 

Conclusions of Law: 

{¶ 12} The magistrate recommends that this court sua sponte dismiss this action 

because relator has failed to comply with the requirements of R.C. 2969.25(C). 

{¶ 13} In regard to filing fees, R.C. 2969.25(C) and 2969.22 distinguish between 

paying the full amount of filing fees upon filing (referred to as "prepayment" of fees) and 

paying the fees pursuant to periodic deductions from the inmate's account maintained by 

the prison.1 Under R.C. 2969.25(C), an inmate who seeks waiver of prepayment on the 

grounds of indigency must file an affidavit that includes: (1) a statement of the amount in 

the inmate's account for each of the preceding six months as certified by the institutional 

cashier, and (2) a statement of all other cash and things of value owned by the inmate. 

{¶ 14} 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); State ex rel. Alford v. Winters, 80 

Ohio St.3d 285 (1997). 

{¶ 15} In State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, the 

Supreme Court of Ohio affirmed the judgment of the court of appeals from Medina 

County which had dismissed the complaint of George D. Pamer, an inmate at Mansfield 

Correctional Institution, for his failure to comply with the requirements of R.C. 

2969.25(C). Specifically, the court stated: 

 

1Under the statute, when the inmate has submitted the requisite affidavit of indigency, the clerk charges 

the inmate's account for funds in excess of ten dollars. Following that payment, all income in the inmate's 

account (excluding the ten dollars) is forwarded to the clerk each month until the fees are paid. 
No. 16AP-519 6 

Pamer's cashier statement did not set forth the account 

balance for the month immediately preceding his mandamus 

complaint - August 2005. See R.C. 2969.25(C)(1), which 

requires an inmate filing a civil action against a government 

employee seeking waiver of prepayment of court filing fees to 

file a "statement that sets forth the balance in the inmate 

account for each of the preceding six months, as certified by 

the institutional cashier." Pamer's failure to comply with R.C. 

2969.25(C)(1) warranted dismissal of the complaint. State ex 

rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio 

St.3d 195, 2005-Ohio-6184, 837 N.E.2d 777, ¶ 5. 

In addition, nothing in R.C. 2969.25 required the court of 

appeals to afford Pamer the opportunity to pay the requisite 

filing fee before dismissing the case when Pamer expressly 

requested waiver of prepayment of those fees. 

Finally, because Pamer did not prevail and did not establish 

his indigency, the court of appeals did not abuse its discretion 

in ordering him to pay the costs of the proceeding. See State 

ex rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750 

N.E.2d 164; Civ.R. 54(D). 

Id. at ¶ 5-7. 

{¶ 16} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-

Ohio-854, the Supreme Court affirmed the judgment of the Ross County Court of Appeals 

which had dismissed the complaint filed by William L. Ridenour because of his failure to 

comply with R.C. 2969.25(C). In that case, Ridenour had filed a motion for 

reconsideration attaching a statement setting forth his inmate account balance for the six 

months preceding the filing of his complaint; however, the statement was not certified by 

the prison cashier. 

{¶ 17} In affirming the judgment of the appellate court, the Supreme Court stated: 

"The requirements of R.C. 2969.25 are mandatory, and 

failure to comply with them subjects an inmate's action to 

dismissal." State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 

2003 Ohio 2262, 788 N.E.2d 634, P 5. Ridenour failed to 

comply with R.C. 2969.25(C)(1), which requires an inmate 

filing a civil action against a government employee seeking 

waiver of prepayment of court filing fees to file with the 

complaint 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. 16AP-519 7 

Moreover, although Ridenour claims that the court erred in 

failing to grant him leave to amend his complaint to comply 

with R.C. 2969.25(C)(1), he never filed 

 a motion to amend his complaint. Instead, he filed a motion 

for reconsideration, which was "a nullity because his 

mandamus action was filed originally in the court of appeals, 

rendering App.R. 26(A) inapplicable." 

Id. at ¶ 5-6. 

{¶ 18} Pursuant to the above-cited authority and because relator cannot cure this 

deficiency now or at a later date, it is this 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 proceedings. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

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).