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State ex rel. Thompson v. Santoli

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 2, 2018

STATE OF OHIO, EX REL. JOHNNY THOMPSON RELATOR
v.
ASSISTANT PROSECUTING ATTORNEY ANDREW SANTOLI RESPONDENT

          Writ of Procedendo Motion No. 516125 Order No. 516739

          FOR RELATOR Johnny Thompson, pro se.

          ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga County Prosecutor, James E. Moss Assistant County Prosecutor

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, P.J.

         {¶1} Relator, Johnny Thompson, seeks a writ of procedendo to compel a ruling or action on a document filed with a common pleas court judge in an underlying criminal case, Cuyahoga C.P. No. CR-12-562669-A.[1] The complaint, however, only names a Cuyahoga County assistant prosecutor as respondent. The respondent assistant county prosecutor has filed a motion for summary judgment, which we grant.

         I. Procedural and Factual History

         {¶2} According to his complaint, on September 23, 2017, Thompson filed what he describes as an original action with the trial court pursuant to R.C. 2935.09 and 2935.10 in the underlying criminal case.[2] The docket from this case indicates that a filing titled "(Accusation by Affidavit) Pursuant to R.C. 2935.09 and R.C. 2935.10" was filed on September 21, 2017. The filing alleges that the respondent prosecutor committed crimes during the proceedings. In November, December, and January, Thompson filed other documents asserting that the trial court failed to act on the September filing, and thereby violated various constitutional rights.

         {¶3} In response, on February 6, 2018, the trial court issued an order stating, "defendant's judicial notices are not a motion and fails to meet the requirements of Evidence Rule201(b) and this court is not required to rule upon it, " and the court determined that the November, December, and January filings were moot. Thompson then filed the instant complaint for a writ of procedendo on March 2, 2018. The respondent prosecutor filed a motion for summary judgment, and Thompson filed a brief in opposition.

         II. Law and Analysis

         {¶4} To be entitled to a writ of procedendo, Thompson must show "a clear legal right to require the respondent to proceed, a clear legal duty on the part of the respondent to proceed, and the lack of an adequate remedy in the ordinary course of the law." State ex rel Nye v. Coates, 146 Ohio St.3d 426, 2016-Ohio-1559, 57 N.E.3d 1138, ¶ 6, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d 899 (1995).

         {¶5} Here, the complaint for a writ of procedendo seeks to have a judge rule on Thompson's "accusation by affidavit" without naming the judge as a party in the present action. A writ cannot issue against a nonparty judge. See Coates at _ 8. Further, a writ of procedendo cannot issue against a county prosecutor; nor can a writ issue when the prosecutor is not the party that Thompson is seeking to compel to action. State ex rel Johnson v. Jensen, 140 Ohio St 3d 65, 2014-Ohio-3159, 14 N.E.3d 1039; Hill v. Kelly, 11th Dist. Trumbull No. 2011-T-0094, 2011-Ohio-6341, _ 11 (writ of procedendo cannot issue against a respondent warden), citing State ex rel. Doughty v. Campbell, 11th Dist. Trumbull No. 2002-T-0112, 2002-Ohio-6466, _ 5 (writ of procedendo cannot issue against a clerk of courts). A writ of procedendo is a civil judgment in which a court of superior jurisdiction orders a court of inferior jurisdiction to make a determination on a pending matter. State ex rel. Grove v. Nadel, 81 Ohio St.3d 325, 326, 691 N.E.2d 275 (1998). Thompson's failure to name the judge he wishes to compel to act is fatal.

         {¶6} Further, the complaint does not comply with Civ.R. 10 in that the address of the prosecutor is not listed in the case caption. A failure to comply with Civ.R. 10 is a separate grounds for dismissal. State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 133, 742 N.E.2d 651 (2001).

         {¶7} Additionally, the complaint fails to comply with R.C. 2969.25(C). This statute requires an inmate wishing to waive the filing fee must file an affidavit of indigency along with a certified statement from the institutional cashier setting forth the balance in the inmate's account for each of the preceding six months. R.C. 2969.25(C)(1). Thompson attached an affidavit of indigency to his complaint, but failed to include a certified statement from the prison cashier. Thompson attempted to cure this defect by attaching the required statement to his brief in opposition to summary judgment. However, the failure to include the necessary statement from the prison cashier is a defect that may not be cured by subsequent filings. Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378. This also is sufficient reason to deny the petition, deny indigency status, and assess costs against him. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842.

          {¶8} The respondent prosecutor asserts that he is also entitled to summary judgment because Thompson failed to ...


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