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Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
BARRON BROWN,
Case No. 15CV005987
Plaintiff,
Judge C. Brown
Vv.
GARY MORHR, et al.,
Defendants.
DEFENDANTS’ MOTION TO DISMISS
Defendants Gary Mohr, the Department of Rehabilitation and Corrections and the
Chillicothe Correctional Institution (“Defendants”), respectfully move the Court pursuant to
Ohio Civ. R. 12(B)(1) and 12(B)(6), to dismiss this lawsuit for lack of jurisdiction and failure to
state a claim upon which relief can be granted. The reasons for this motion are set forth more
fully in the attached memorandum.
Respectfully submitted,
MICHAEL DEWINE (0009181)
Ohio Attorney General
s/Mindy Worl
MINDY WORLY (0037395)
Principal Assistant Attorney General
Criminal Justice Section, Corrections Unit
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
Phone: (614) 728-0161; Fax: (866) 474-4985
Mindy, Worly @OhioAttormeyGeneral goy
Trial Attorney for DefendantsFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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MEMORANDUM
I INTRODUCTION
Plaintiff Barron Brown may best be described as a frequent flyer, having now filed at
least four lawsuits in an ill-disguised effort to milk $7,500,000 out of a Private Settlement
Agreement (“Agreement”) negotiated solely to abate what little asbestos remained in Dorms D-
1, D-2, D-3 and the hospital basement of the Chillicothe Correctional Institution (“CCTI’).
(Complaint at 6 and Plaintiff's Affidavit of Prior Action. Nos. 1, 2, and 6). While the
Agreement attached a two- page exhibit listing floors, rooms, building materials, asbestos type,
and hazard rankings (Agreement Exhibit D), thereby designating the areas of CCI to be abated,
nowhere did the Agreement include any Approvals or Permits subject thereto. Nor did the
Agreement contemplate any payment of damages. Perhaps most importantly, the work to be
done in abating the designated areas has already been completed. (Complaint Exhibit I).
Although the Complaint seeks money damages “for the years of being forced to live in a
danger zone, and enduring the thought of incomparable emotional distress of bearing the weight
of the exposure to these hazardous conditions,” only the Court of Claims has jurisdiction over
damage claims filed against state entities or state employees, a fact Plaintiff likely recognized
when he filed a similar Civil Complaint for Negligent Infliction of Emotional Distress
(“complaint”) in the Court of Claims containing the very same allegation. (Complaint Prayer for
Relief and Plaintiff’s Affidavit of Prior Action, No. 2).
Notably, the Court of Claims dismissed Plaintiff's complaint, finding “incarceration of
plaintiff in buildings that were discovered to contain asbestos is not extreme and outrageous
conduct sufficient to sustain a claim for intentional infliction of emotional distress.” Likewise,
the Court of Claims found the facts in the complaint insufficient to support a breach of theFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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Agreement. Since Plaintiff is prohibited by Ohio Rev. Code §§2743.02, 2969.25, and 2969.26
from bringing this lawsuit, the Complaint must be dismissed.
Il. LAW AND ARGUMENT
A. Standard of Review: Civ. R. 12(B)
To dismiss a complaint for lack of subject-matter jurisdiction pursuant to Civ.R.
12(B)(1), the court must determine “whether any cause of action cognizable by the forum has
been raised in the complaint.” State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d
641 (1989). “The trial court is not confined to the allegations of the complaint when determining
its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss, and it may
consider material pertinent to such inquiry without converting the motion into one for summary
judgment.” Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358
N.E.2d 526 (1976), paragraph one of the syllabus.
Similarly, a motion to dismiss for failure to state a claim upon which the court can grant
relief challenges the sufficiency of the complaint itself. Volbers-Klarich v. Middletown Mgmt.,
Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, J11. A court will dismiss a
complaint if it fails to allege facts necessary to support the claim. See ex rel. Russell v.
Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, (10. Moreover, “unsupported
conclusions of a complaint are not considered admitted and are not sufficient to withstand a
motion to dismiss.” State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490 (1994); State ex
rel. Hickman v. Capots, 45 Ohio St.3d 324 (1989).
B. All of Plaintiff’s Claims Have Been Waived
Ohio Rev. Code §2743.02 specifically provides that “filing a civil action in the court of
claims results in a complete waiver of any cause of action, based on the same act or omission,Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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which the filing party has against any officer or employee.” Thus, Plaintiffs Court of Claims
suit filed against various state agencies waived any and all claims Plaintiff may have had against
the Defendants based upon the same acts or omissions. (Plaintiff's Affidavit of Prior Action, No.
2). Accordingly, because Plaintiff previously filed a complaint in the Court of Claims based on
the same act or omission, the Complaint should be dismissed. Fischer v. Kent State Univ., F.3d
(6th Cir. 2012) (dismissing plaintiff's complaint where the Court of Claims action addressed
similar acts and omissions because the sequence of filing did not matter).
Cc. Plaintiff’s Constitutional Claims Are Barred by the Doctrines of Res
Judicata and Collateral Estoppel.
The doctrine of claim preclusion, a.k.a. res judicata, prevents subsequent actions by the
same parties or their privies based upon any claim arising out of an occurrence that was the
subject matter of a previous action. See State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St. 3d
449, 2010-Ohio-606 at {{[ 21-22. Plaintiff’s Complaint alleges he has been “forced to live in a
danger zone, and [to endure] the thought of incomparable emotional distress of bearing the
weight of the exposure to these hazardous conditions.” (Prayer for Relief). However, as the
Court of Claims previously found, “incarceration of plaintiff in buildings that were discovered to
contain asbestos is not extreme and outrageous conduct sufficient to sustain a claim for
intentional infliction of emotional distress.” Likewise, the Court of Claims found the facts in the
complaint insufficient to support a breach of the Agreement.
Similarly, the doctrine of issue preclusion, a.k.a. collateral estoppel, “precludes the re-
litigation, in a second action, of an issue that had been actually and necessarily litigated and
determined in a prior action that was based on a different cause of action.” Ft. Frye Teachers
Assn., OEA/NEA y. State Emp. Relations Bd. (1999), 81 Ohio St. 3d 392, 395. Unlike federal
law, Ohio law requires “that the parties to the subsequent action must be identical to or in privityFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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with those in the former action.” Kirkhart v. Keiper, 101 Ohio St. 3d 377, 2004-Ohio-1496, {| 8.
Accordingly, issue preclusion operates where, as here, the parties to the present proceeding are
bound by the prior judgment, thereby precluding a party from re-litigating the same issue.
Goodson v. McDonough Power Equip., Inc. (1982), 2 Ohio St. 3d 193, 200.
In the present case, identical to the case filed by the Plaintiff in the Court of Claims,
Plaintiff is seeking damages for his alleged exposure to asbestos. However, the Court of Claims
previously found Plaintiff's complaint failed to state any claim for relief. Since the Court of
Claims previously found Plaintiff's allegations failed to state a claim, his Complaint, not only
arising out of the same occurrences, but also based on issues previously determined by that court,
should be dismissed.
D. Plaintiff failed to satisfy the mandatory statutory requirements for
inmates to file civil actions.
Ohio Rev. Code 2969.25 and 2969.26 set forth a series of requirements that an inmate
must meet before commencing a civil action against a government entity or employee. R.C.
2969.25 and 2969.26 apply to civil actions that an inmate commences against the state or an
employee of the state in a court of common pleas. R.C. 2969.21(B)(1)(a). The requirements of
R.C. 2969.25 and 2969.26 are mandatory, and failure to comply with them subjects an inmate’s
action to dismissal. See State ex rel. Spencer v. Bobby, 7th Dist. Mahoning No. 12-MA-147,
2012-Ohio-5615, {| 3-6; Blackford v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-373, 2011-
Ohio-3369, §§] 19-30; McKinney v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-370, 2011-
Ohio-3174, {ff 11-16; see also State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262,
788 N.E.2d 634, ¥ 5; State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258,
259, 719 N.E.2d 544 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422,
696 N.E.2d 594 (1998); and State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 285, 685 N.E.2dFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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1242 (1997). Failure to comply is not just a sufficient reason to dismiss this action, it is also
sufficient reason to deny indigency status and assess costs against Plaintiff. State ex rel.
Cvijetinovic v. Warden, Belmont Corr. Inst., 7th Dist. No. 10-BE-23, 2011-Ohio-5575, { 3.
Plaintiff failed to comply with the filing requirements of R.C. 2969.25(A) and 2969.26(A) and
therefore his Complaint should be dismissed and costs assessed to him.
a. Plaintiff failed to comply with the requirements of 2969.25(A).
Under R.C. 2969.25(A),
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; [and]
(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.
The affidavit of prior civil actions must be filed “/aJt the time that an inmate commences a civil
action or appeal against a government entity or employee.” (Emphasis added.) R.C.
2969.25(A). A belated attempt to file the required affidavit cannot excuse noncompliance.
Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, {{ 9.
Notably, the Supreme Court of Ohio has upheld dismissal of an inmate’s action pursuant
to this section when the affidavit of prior civil actions failed to describe the nature and outcome
of the civil actions or appeals the inmate had specified. See State ex rel. Norris v. Giavasis, 100Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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Ohio St.3d 371, 2003-Ohio-6609, 800 N.E.2d 365, [ 3; see also Watley v. Coval, 10th. Dist.
Franklin No. 03AP-829, 2004-Ohio-1734, J 6 (upholding dismissal when “in no instance did
plaintiff provide a brief description of the nature of the civil action or appeal”). R.C. 2969.25(A)
does not permit substantial compliance. State ex rel. Manns v. Henson, 119 Ohio St.3d 348,
2008-Ohio-4478, 894 N.E.2d 47, 1 4.
In this case, although Plaintiff filed an “Affidavit of Prior Actions,” the affidavit fails to
provide any information regarding the nature or outcome of his previously filed civil actions and
appeals. Because Plaintiff has failed to comply with the mandatory requirements provided in
R.C. 2969.25(A), which cannot later be corrected, this case should be dismissed.
b. Plaintiff failed to comply with the requirements of 2969.26(A).
R.C. 2969.26(A) mandates:
If an inmate commences a civil action or appeal against a government entity or
employee and if the inmate’s claim in the civil action or the inmate’s claim in the
civil action that is being appealed is subject to the grievance system for the state
correctional institution, jail, workhouse, or violation sanction center in which the
inmate is confined, the inmate shall file both of the following with the court:
(1) An affidavit stating that the grievance was filed and the date on
which the inmate received the decision regarding the grievance.
(2) A copy of any written decision regarding the grievance from
the grievance system.
However, Plaintiff did not file the requisite affidavit with his Complaint stating he filed a
grievance related to his claims, nor did he attach a copy of any written decision regarding such
grievance. To the contrary, Plaintiff neither stated what, if any, grievances he has filed nor the
dates on which he received decisions regarding said grievances. Additionally, Plaintiff failed to
comply with R.C. 2969(A)(2) because he did not file with the Court copies of any written
decisions he received. Since Plaintiff has failed to demonstrate he exhausted his administrative
remedies before commencing this civil action, the Complaint should be dismissed.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987
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Til. CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court dismiss
Plaintiff's Complaint in its entirety with prejudice, assess costs to Plaintiff, and award any other
relief deemed necessary and just by the Court.
Respectfully submitted,
MICHAEL DEWINE (0009181)
Ohio Attorney General
s/Mindy Worly
MINDY WORLY (0037395)
Principal Assistant Attorney General
Criminal Justice Section, Corrections Unit
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
Phone: (614) 728-0161; Fax: (866) 474-4985
Mindy. Worly @ Ohio AttorneyGeneral gov
Trial Attorney for Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Defendants’ Motion to Dismiss has been
electronically filed this 5° day of August 2015 and has been served upon Petitioner Barron
Brown, #465-913, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601,
via U.S. mail, postage prepaid.
s/Mindy Worly
MINDY WORLY (0037395)
Principal Assistant Attorney General
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 O0C624 - R75 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO BARRON BROWN, Case No. 15CV005987 Plaintiff, Judge C. Brown Vv. GARY MORHR, et al., Defendants. DEFENDANTS’ MOTION TO DISMISS Defendants Gary Mohr, the Department of Rehabilitation and Corrections and the Chillicothe Correctional Institution (“Defendants”), respectfully move the Court pursuant to Ohio Civ. R. 12(B)(1) and 12(B)(6), to dismiss this lawsuit for lack of jurisdiction and failure to state a claim upon which relief can be granted. The reasons for this motion are set forth more fully in the attached memorandum. Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General s/Mindy Worl MINDY WORLY (0037395) Principal Assistant Attorney General Criminal Justice Section, Corrections Unit 150 East Gay Street, 16th Floor Columbus, Ohio 43215 Phone: (614) 728-0161; Fax: (866) 474-4985 Mindy, Worly @OhioAttormeyGeneral goy Trial Attorney for DefendantsFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 O0C624 - R76 MEMORANDUM I INTRODUCTION Plaintiff Barron Brown may best be described as a frequent flyer, having now filed at least four lawsuits in an ill-disguised effort to milk $7,500,000 out of a Private Settlement Agreement (“Agreement”) negotiated solely to abate what little asbestos remained in Dorms D- 1, D-2, D-3 and the hospital basement of the Chillicothe Correctional Institution (“CCTI’). (Complaint at 6 and Plaintiff's Affidavit of Prior Action. Nos. 1, 2, and 6). While the Agreement attached a two- page exhibit listing floors, rooms, building materials, asbestos type, and hazard rankings (Agreement Exhibit D), thereby designating the areas of CCI to be abated, nowhere did the Agreement include any Approvals or Permits subject thereto. Nor did the Agreement contemplate any payment of damages. Perhaps most importantly, the work to be done in abating the designated areas has already been completed. (Complaint Exhibit I). Although the Complaint seeks money damages “for the years of being forced to live in a danger zone, and enduring the thought of incomparable emotional distress of bearing the weight of the exposure to these hazardous conditions,” only the Court of Claims has jurisdiction over damage claims filed against state entities or state employees, a fact Plaintiff likely recognized when he filed a similar Civil Complaint for Negligent Infliction of Emotional Distress (“complaint”) in the Court of Claims containing the very same allegation. (Complaint Prayer for Relief and Plaintiff’s Affidavit of Prior Action, No. 2). Notably, the Court of Claims dismissed Plaintiff's complaint, finding “incarceration of plaintiff in buildings that were discovered to contain asbestos is not extreme and outrageous conduct sufficient to sustain a claim for intentional infliction of emotional distress.” Likewise, the Court of Claims found the facts in the complaint insufficient to support a breach of theFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 O0C624 - R77 Agreement. Since Plaintiff is prohibited by Ohio Rev. Code §§2743.02, 2969.25, and 2969.26 from bringing this lawsuit, the Complaint must be dismissed. Il. LAW AND ARGUMENT A. Standard of Review: Civ. R. 12(B) To dismiss a complaint for lack of subject-matter jurisdiction pursuant to Civ.R. 12(B)(1), the court must determine “whether any cause of action cognizable by the forum has been raised in the complaint.” State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). “The trial court is not confined to the allegations of the complaint when determining its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss, and it may consider material pertinent to such inquiry without converting the motion into one for summary judgment.” Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph one of the syllabus. Similarly, a motion to dismiss for failure to state a claim upon which the court can grant relief challenges the sufficiency of the complaint itself. Volbers-Klarich v. Middletown Mgmt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, J11. A court will dismiss a complaint if it fails to allege facts necessary to support the claim. See ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, (10. Moreover, “unsupported conclusions of a complaint are not considered admitted and are not sufficient to withstand a motion to dismiss.” State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490 (1994); State ex rel. Hickman v. Capots, 45 Ohio St.3d 324 (1989). B. All of Plaintiff’s Claims Have Been Waived Ohio Rev. Code §2743.02 specifically provides that “filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission,Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 O0C624 - R78 which the filing party has against any officer or employee.” Thus, Plaintiffs Court of Claims suit filed against various state agencies waived any and all claims Plaintiff may have had against the Defendants based upon the same acts or omissions. (Plaintiff's Affidavit of Prior Action, No. 2). Accordingly, because Plaintiff previously filed a complaint in the Court of Claims based on the same act or omission, the Complaint should be dismissed. Fischer v. Kent State Univ., F.3d (6th Cir. 2012) (dismissing plaintiff's complaint where the Court of Claims action addressed similar acts and omissions because the sequence of filing did not matter). Cc. Plaintiff’s Constitutional Claims Are Barred by the Doctrines of Res Judicata and Collateral Estoppel. The doctrine of claim preclusion, a.k.a. res judicata, prevents subsequent actions by the same parties or their privies based upon any claim arising out of an occurrence that was the subject matter of a previous action. See State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St. 3d 449, 2010-Ohio-606 at {{[ 21-22. Plaintiff’s Complaint alleges he has been “forced to live in a danger zone, and [to endure] the thought of incomparable emotional distress of bearing the weight of the exposure to these hazardous conditions.” (Prayer for Relief). However, as the Court of Claims previously found, “incarceration of plaintiff in buildings that were discovered to contain asbestos is not extreme and outrageous conduct sufficient to sustain a claim for intentional infliction of emotional distress.” Likewise, the Court of Claims found the facts in the complaint insufficient to support a breach of the Agreement. Similarly, the doctrine of issue preclusion, a.k.a. collateral estoppel, “precludes the re- litigation, in a second action, of an issue that had been actually and necessarily litigated and determined in a prior action that was based on a different cause of action.” Ft. Frye Teachers Assn., OEA/NEA y. State Emp. Relations Bd. (1999), 81 Ohio St. 3d 392, 395. Unlike federal law, Ohio law requires “that the parties to the subsequent action must be identical to or in privityFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 0C624 - R79 with those in the former action.” Kirkhart v. Keiper, 101 Ohio St. 3d 377, 2004-Ohio-1496, {| 8. Accordingly, issue preclusion operates where, as here, the parties to the present proceeding are bound by the prior judgment, thereby precluding a party from re-litigating the same issue. Goodson v. McDonough Power Equip., Inc. (1982), 2 Ohio St. 3d 193, 200. In the present case, identical to the case filed by the Plaintiff in the Court of Claims, Plaintiff is seeking damages for his alleged exposure to asbestos. However, the Court of Claims previously found Plaintiff's complaint failed to state any claim for relief. Since the Court of Claims previously found Plaintiff's allegations failed to state a claim, his Complaint, not only arising out of the same occurrences, but also based on issues previously determined by that court, should be dismissed. D. Plaintiff failed to satisfy the mandatory statutory requirements for inmates to file civil actions. Ohio Rev. Code 2969.25 and 2969.26 set forth a series of requirements that an inmate must meet before commencing a civil action against a government entity or employee. R.C. 2969.25 and 2969.26 apply to civil actions that an inmate commences against the state or an employee of the state in a court of common pleas. R.C. 2969.21(B)(1)(a). The requirements of R.C. 2969.25 and 2969.26 are mandatory, and failure to comply with them subjects an inmate’s action to dismissal. See State ex rel. Spencer v. Bobby, 7th Dist. Mahoning No. 12-MA-147, 2012-Ohio-5615, {| 3-6; Blackford v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-373, 2011- Ohio-3369, §§] 19-30; McKinney v. Noble Corr. Inst., 7th Dist. Noble No. 10-NO-370, 2011- Ohio-3174, {ff 11-16; see also State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634, ¥ 5; State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998); and State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 285, 685 N.E.2dFranklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 O0C624 - R80 1242 (1997). Failure to comply is not just a sufficient reason to dismiss this action, it is also sufficient reason to deny indigency status and assess costs against Plaintiff. State ex rel. Cvijetinovic v. Warden, Belmont Corr. Inst., 7th Dist. No. 10-BE-23, 2011-Ohio-5575, { 3. Plaintiff failed to comply with the filing requirements of R.C. 2969.25(A) and 2969.26(A) and therefore his Complaint should be dismissed and costs assessed to him. a. Plaintiff failed to comply with the requirements of 2969.25(A). Under R.C. 2969.25(A), 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; [and] (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. The affidavit of prior civil actions must be filed “/aJt the time that an inmate commences a civil action or appeal against a government entity or employee.” (Emphasis added.) R.C. 2969.25(A). A belated attempt to file the required affidavit cannot excuse noncompliance. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, {{ 9. Notably, the Supreme Court of Ohio has upheld dismissal of an inmate’s action pursuant to this section when the affidavit of prior civil actions failed to describe the nature and outcome of the civil actions or appeals the inmate had specified. See State ex rel. Norris v. Giavasis, 100Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 O0C624 - R81 Ohio St.3d 371, 2003-Ohio-6609, 800 N.E.2d 365, [ 3; see also Watley v. Coval, 10th. Dist. Franklin No. 03AP-829, 2004-Ohio-1734, J 6 (upholding dismissal when “in no instance did plaintiff provide a brief description of the nature of the civil action or appeal”). R.C. 2969.25(A) does not permit substantial compliance. State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, 894 N.E.2d 47, 1 4. In this case, although Plaintiff filed an “Affidavit of Prior Actions,” the affidavit fails to provide any information regarding the nature or outcome of his previously filed civil actions and appeals. Because Plaintiff has failed to comply with the mandatory requirements provided in R.C. 2969.25(A), which cannot later be corrected, this case should be dismissed. b. Plaintiff failed to comply with the requirements of 2969.26(A). R.C. 2969.26(A) mandates: If an inmate commences a civil action or appeal against a government entity or employee and if the inmate’s claim in the civil action or the inmate’s claim in the civil action that is being appealed is subject to the grievance system for the state correctional institution, jail, workhouse, or violation sanction center in which the inmate is confined, the inmate shall file both of the following with the court: (1) An affidavit stating that the grievance was filed and the date on which the inmate received the decision regarding the grievance. (2) A copy of any written decision regarding the grievance from the grievance system. However, Plaintiff did not file the requisite affidavit with his Complaint stating he filed a grievance related to his claims, nor did he attach a copy of any written decision regarding such grievance. To the contrary, Plaintiff neither stated what, if any, grievances he has filed nor the dates on which he received decisions regarding said grievances. Additionally, Plaintiff failed to comply with R.C. 2969(A)(2) because he did not file with the Court copies of any written decisions he received. Since Plaintiff has failed to demonstrate he exhausted his administrative remedies before commencing this civil action, the Complaint should be dismissed.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Aug 05 4:16 PM-15CV005987 OC624 - R82 Til. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss Plaintiff's Complaint in its entirety with prejudice, assess costs to Plaintiff, and award any other relief deemed necessary and just by the Court. Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General s/Mindy Worly MINDY WORLY (0037395) Principal Assistant Attorney General Criminal Justice Section, Corrections Unit 150 East Gay Street, 16th Floor Columbus, Ohio 43215 Phone: (614) 728-0161; Fax: (866) 474-4985 Mindy. Worly @ Ohio AttorneyGeneral gov Trial Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants’ Motion to Dismiss has been electronically filed this 5° day of August 2015 and has been served upon Petitioner Barron Brown, #465-913, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, via U.S. mail, postage prepaid. s/Mindy Worly MINDY WORLY (0037395) Principal Assistant Attorney General