[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Russell v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2020-Ohio-4788.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4788
THE STATE EX REL. RUSSELL, APPELLANT, v. OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Russell v. Ohio Dept. of Rehab. & Corr., Slip
Opinion No. 2020-Ohio-4788.]
Mandamus—Inmate failed to comply with filing requirements of R.C. 2969.25(A)—
Court of appeals’ dismissal of petition affirmed.
(No. 2020-0386—Submitted August 4, 2020—Decided October 8, 2020.)
APPEAL from the Court of Appeals for Pickaway County, No. 19CA39.
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Per Curiam.
{¶ 1} Appellant, Mark R. Russell, a prison inmate, filed a petition for a writ
of mandamus seeking to compel appellee, Ohio Department of Rehabilitation and
Correction (“DRC”), to conduct a hearing concerning an alleged use-of-force
incident. The petition was dismissed because Russell did not comply with R.C.
2969.25(A), which requires an inmate commencing a civil action in the court of
SUPREME COURT OF OHIO
appeals against a government entity to file 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.” We affirm.
Background
{¶ 2} Russell initially filed his petition in the Tenth District Court of Appeals,
alleging that he had suffered severe burns and temporary blindness when a prison
officer used a chemical spray on him while he was incarcerated at the Pickaway
Correctional Institution. Russell sought a writ of mandamus to compel DRC to hold
a hearing concerning the alleged incident.
{¶ 3} DRC moved to dismiss the petition, first arguing that the Tenth District
lacked jurisdiction over Russell’s petition because the Pickaway Correctional
Institution is not located within the court’s territorial boundaries. DRC also argued
that Russell had failed to set forth in his affidavit of indigency the balance of his
inmate account for each of the preceding six months, as required by R.C. 2969.25(C).
The Tenth District rejected DRC’s challenge to the court’s jurisdiction but held that
venue was more appropriate in the court of appeals for the county in which the
alleged incident occurred. State ex rel. Russell v. Ohio Dept. of Rehab. & Corr.,
2019-Ohio-4947, 149 N.E.3d 1064 (10th Dist.). The Tenth District therefore
transferred the case to the Fourth District Court of Appeals.
{¶ 4} On receiving the case, the Fourth District ordered DRC to file a
response to Russell’s petition. DRC filed another motion to dismiss, this time
arguing that Russell has no clear legal right to a hearing and that he had failed to
adequately describe the civil actions he had filed in the previous five years, as
required by R.C. 2969.25(A). In opposing DRC’s motion, Russell argued that DRC
should not be allowed to present new arguments that it did not make in the motion to
dismiss filed in the Tenth District. But Russell did not claim that he had satisfied
R.C. 2969.25(A). The Fourth District held that Russell had not satisfied R.C.
2969.25(A) and granted DRC’s motion to dismiss.
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January Term, 2020
{¶ 5} Russell has appealed to this court as of right.
Analysis
{¶ 6} On appeal, Russell does not dispute that he failed to comply with R.C.
2969.25(A). But he contends that DRC waived the issue by failing to raise it in the
Tenth District. In support of this argument, Russell relies on the well-settled rule that
a party may not raise an argument for the first time on appeal. That principle does
not help Russell, however, because the Fourth District adjudicated Russell’s petition
as an original action, not on appeal. When the Fourth District ordered DRC to
respond to Russell’s petition, the litigation was still at its earliest stage. Russell
provides no support for the proposition that DRC could not assert a meritorious
defense in a Civ.R. 12(B)(6) motion under those circumstances.
{¶ 7} The Fourth District was right to dismiss Russell’s petition for failing to
comply with R.C. 2969.25(A), which requires an inmate commencing a civil action
in the court of appeals against a government entity to file 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 statute requires the case
descriptions to include
(1) [a] brief description of the nature of the civil action or
appeal;
(2) [t]he case name, case number, and the court in which the
civil action or appeal was brought;
(3) [t]he name of each party to the civil action or appeal;
[and]
(4) [t]he 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
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SUPREME COURT OF OHIO
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.
R.C. 2969.25(A).
{¶ 8} Along with his petition, Russell filed an affidavit listing six civil actions
he had filed within the previous five years, but he did not identify the courts in which
the cases were brought, the names of all the parties, or the outcomes of the cases.
“The requirements of R.C. 2969.25 are mandatory and failure to comply with them
requires dismissal of an inmate’s complaint.” State ex rel. Hall v. Mohr, 140 Ohio
St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4. Because Russell did not strictly
comply with R.C. 2969.25(A), the Fourth District correctly dismissed his petition.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Mark R. Russell, pro se.
Dave Yost, Attorney General, and George Horváth, Assistant Attorney
General, for appellee.
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