[Cite as State ex rel. Davis v. Holbrook, 2018-Ohio-3389.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. James Allen Davis, : 

 Relator, : 

v. : No. 17AP-838 

Michael J. Holbrook, : (REGULAR CALENDAR) 

Judge of the Court of Common Pleas, 

 : 

 Respondent. 

 : 

 

D E C I S I O N 

Rendered on August 23, 2018 

 

James Allen Davis, pro se. 

Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale, 

Jr., for respondent. 

 

IN MANDAMUS 

ON SUA SPONTE DISMISSAL 

SADLER, J. 

{¶ 1} Relator, James Allen Davis, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent, the Honorable Michael J. Holbrook, judge 

of the Franklin County Court of Common Pleas, to prove the court had subject-matter 

jurisdiction over him in the underlying criminal cases involving multiple charges of rape. 

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law, and recommended 

this court sua sponte dismiss the action because relator failed to comply with the 

requirements of R.C. 2969.25(C). Relator filed five enumerated objections to the 
No. 17AP-838 2 

magistrate's decision. For the reasons that follow, we agree that dismissal of relator's 

complaint is required. 

{¶ 3} R.C. 2969.25provides in relevant part as follows: 

(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; 

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

value owned by the inmate at that time. 

{¶ 4} The magistrate made the following relevant factual finding: 

At the time relator filed this mandamus complaint, he did file 

an affidavit of indigency and sought the waiver of the 

prepayment of fees. However, relator failed to attach a 

statement of the balance in his inmate account for each of the 

preceding six months as certified by the institutional casher 

and also failed to provide a statement of all other cash and 

things of value he owns. 

(Mag.'s Decision at ¶ 13.) 

{¶ 5} Because our resolution of relator's fourth objection essentially disposes of 

this action, we will consider it first. In his fourth objection, relator acknowledges 

noncompliance with R.C. 2969.25(C) on filing this action, but he contends that he cured 

any defect in his original filing by his January 9, 2018 motion to amend his affidavit with a 

statement of the balance in his inmate account for each of the preceding six months as 

certified by the institutional cashier. Relator argues that his amended affidavit establishes 

compliance with the requirements of R.C. 2969.25(C)(1). The magistrate determined, 

however, that R.C. 2969.25(C) does not permit an inmate to subsequently cure defects in 

the original affidavit. We agree with the magistrate. 

{¶ 6} The Supreme Court of Ohio has repeatedly held the requirements of R.C. 

2969.25(C) are mandatory and the inmate's failure to comply with them requires dismissal 
No. 17AP-838 3 

of the complaint. State ex rel. Neil v. French, __Ohio St.3d __, 2018-Ohio-2692; State ex 

rel. Evans v. McGrath, 151 Ohio St.3d 345, 2017-Ohio-8290, ¶ 7; State ex rel. Jackson v. 

Calabrese, 143 Ohio St.3d 409, 2015-Ohio-2918, ¶ 5; State ex rel. Hall v. Mohr, 140 Ohio 

St.3d 297, 2014-Ohio-3735, ¶ 4. The Supreme Court has also consistently found that a 

"belated attempt to [file an affidavit that complies] with R.C. 2969.25(C) 'does not excuse 

[the] noncompliance.' " State ex rel. Swain v. Ohio Adult Parole Auth., 151 Ohio St.3d 552, 

2017-Ohio-9175, ¶ 4, quoting Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9; 

State ex rel. Young v. Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9; Hazel v. Knab, 130 

Ohio St.3d 22, 2011-Ohio-4608, ¶ 1. Because relator cannot cure his initial noncompliance 

with R.C. 2969.25(C)(1) by a subsequent amendment to his affidavit, relator's fourth 

objection is overruled. 

{¶ 7} In his third objection, relator contends the magistrate's factual findings are 

erroneous inasmuch as his affidavit filed with the complaint contains a statement of all 

other cash and things of value he owns as required by R.C. 2969.25(C)(2). We acknowledge 

that relator's affidavit contains the following averment: "I posses [sic] no sufficient funds, 

property, nor chattel to offer as security to the cost and fees related to, and this action." 

(Ex. A, attached to Nov. 28, 2017 Compl.) However, even if we were to agree that the 

magistrate's factual finding is in error with respect to the specific requirement set forth in 

R.C. 2969.25(C)(2), the Supreme Court has observed that "R.C. 2969.25(C) does not permit 

substantial compliance." Neil at ¶ 7, citing State ex rel. Manns v. Henson, 119 Ohio St.3d 

348, 2008-Ohio-4478, ¶ 4. Consequently, any error in the magistrate's findings as to 

relator's compliance with R.C. 2969.25(C)(2) is harmless error, as a matter of law, given 

relator's admitted failure to comply with R.C. 2969.25(C)(1). Accordingly, relator's third 

objection is overruled. 

{¶ 8} Relator's remaining objections concern the merits of his complaint. Having 

determined, however, that relator failed to comply with the mandatory requirements of 

R.C. 2969.25(C) and that dismissal of relator's complaint is required, relator's remaining 

objections are overruled. 

{¶ 9} Following an independent review of this matter, we find the magistrate has 

properly determined the facts, with the single exception noted above, and applied the 

appropriate law. Accordingly, we overrule relator's objections and adopt the magistrate's 
No. 17AP-838 4 

decision as our own, including the findings of fact as modified herein, and conclusions of 

law. In accordance with the magistrate's recommendation, relator's action is hereby 

dismissed. 

Objections overruled; 

action dismissed. 

TYACK and DORRIAN, JJ., concur. 

 

 
No. 17AP-838 5 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. James Allen Davis, : 

 

 Relator, : 

v. : No. 17AP-838 

 

Michael J. Holbrook, : (REGULAR CALENDAR) 

Judge of the Court of Common Pleas, 

 : 

 Respondent. 

 : 

 

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

NUNC PRO TUNC1

Rendered on January 23, 2018 

 

Jim Allen Davis, pro se. 

Ron O'Brien, Prosecuting Attorney, and Arthur J. 

Marziale, Jr., for respondent. 

 

IN MANDAMUS 

ON SUA SPONTE DISMISSAL 

{¶ 10} Relator, James Allen Davis, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent, the Honorable Michael J. Holbrook, judge 

of the Franklin County Court of Common Pleas, to prove the court had subject-matter 

jurisdiction over him in the underlying criminal cases involving multiple charges of rape. 

 

 

1 This decision replaces, nunc pro tunc, the original decision released on December 21, 2017, and is effective 

as of that date. This decision adds Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale, Jr., for 

respondent. 
No. 17AP-838 6 

Findings of Fact: 

{¶ 11} 1. Relator is an inmate at Marion Correctional Institution. 

{¶ 12} 2. On November 28, 2017, relator filed this mandamus complaint asserting 

the trial court abused its discretion when it proceeded to try him on multiple counts of rape 

because the trial court lacked subject-matter jurisdiction over him. 

{¶ 13} 3. At the time relator filed this mandamus complaint, he did file an affidavit 

of indigency and sought the waiver of the prepayment of fees. However, relator failed to 

attach a statement of the balance in his inmate account for each of the preceding six months 

as certified by the institutional casher and also failed to provide a statement of all other cash 

and things of value he owns. 

{¶ 14} 4. After this decision was drafted but before it was released, respondent filed 

a motion to dismiss asserting dismissal was appropriate because relator failed to comply 

with R.C. 2969.25(c). 

Conclusions of Law: 

{¶ 15} 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). 

{¶ 16} In regard to filing fees, R.C. 2969.25(C) and 2969.22distinguish 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.2 Under R.C. 2969.25(C), an inmate who seeks waiver of prepayment on 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. 

{¶ 17} Compliance with the provisions of R.C. 2969.25 ismandatory and 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). 

 

2Under 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. 17AP-838 7 

{¶ 18} 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: 

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. 2969.25required 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. 

{¶ 19} 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 institutional 

cashier. 

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

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

to comply with them subjects an inmate's action to dismissal." 
No. 17AP-838 8 

State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio2262, 788 N.E.2d 634, ¶ 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." 

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." State ex rel. Washington v. Crush, 106 Ohio 

St.3d 60, 2005-Ohio-3675, 831 N.E.2d 432, ¶ 5. 

Id. at ¶ 5-6. 

{¶ 21} Pursuant to the above-cited 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. Respondent's motion to dismiss is denied as moot. 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).