State ex rel. Jones v. McIntoshState ex rel. Jones v. McIntosh
Rendered on February 21, 2023
Antonio Jones, pro se.
G. Gary Tyack, Prosecuting Attorney, and Charles R. Ellis, for respondent.
IN PROCEDENDO ON MOTIONS
JAMISON, J.
{1} Relator, Antonio Jones, an inmate in the custody of the Ohio Department of Rehabilitation and Correction, has filed an original action requesting this court issue a writ of procedendo ordering respondent, a judge of the Franklin County Court of Common Pleas, to rule on an affidavit of accusation. Respondent filed a motion to dismiss pursuant to
{2} This matter was referred to a magistrate of this court pursuant to
{3} “If no timely objections are filed, the court may adopt a magistrate‘s decision unless it determines that there is an error of law or other defect evident on the face of the magistrate‘s decision.”
{4} We note that the magistrate‘s decision contains a typographical error in findings of fact at appendix paragraph 8, wherein it refers to a case termination date of January 28, 2021 as January 28, 2020. We also note that case No. 16AP-25 was filed on January 13, 2016, which is outside the five-year lookback provision of
{5} Upon review, and other than the two obvious errors above, we find no other error in the magistrate‘s findings of fact or conclusions of law. Therefore, except for correcting the errors, we adopt the magistrate‘s decision as our own, including the findings of fact and conclusions of law therein. In accordance with the magistrate‘s decision, respondent‘s motion to dismiss is granted, relator‘s motion to strike is denied, and this action is dismissed.
Motion to dismiss granted; motion to strike denied; action dismissed.
DORRIAN and BOGGS, JJ., concur.
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
State ex rel. Antonio Jones, Relator, v. Franklin County Common Pleas Court Administrative Judge Mr. Stephen McIntosh, Respondent.
No. 22AP-269 (REGULAR CALENDAR)
MAGISTRATE‘S DECISION
Rendered on November 15, 2022
Antonio Jones, pro se.
G. Gary Tyack, Prosecuting Attorney, and Charles R. Ellis, for respondent.
IN PROCEDENDO ON MOTIONS
{6} Relator, Antonio Jones, an inmate in the custody of the Ohio Department of Rehabilitation and Correction, commenced this original action seeking a writ of procedendo ordering respondent, Judge Stephen McIntosh of the Franklin County Court of Common Pleas, to rule on a pending February 19, 2021, affidavit of accusation filed in Franklin C.P. No. 20CV-1621. Respondent has filed a motion to dismiss relator‘s complaint
Findings of Fact:
{7} 1. At the time of the filing of his complaint, relator was an inmate incarcerated at Chillicothe Correctional Institution.
{8} 2. Respondent is a judge in the Franklin County Court of Common Pleas and presides over Franklin C.P. No. 20CV-1621 (“Jones I“). In that case, on February 26, 2020, relator filed an affidavit of accusation pursuant to
{9} 3. On February 19, 2021, in Jones I, relator filed another affidavit of accusation pursuant to
{10} 4. On December 9, 2021, relator filed a complaint in procedendo in State ex rel. Jones v. Franklin Cty. Common Pleas Court Adm. Judge, 10th Dist. No. 21AP-662, 2022-Ohio-1296 (“Jones II“). The complaint in Jones II alleges that the same respondent as in the current case (Judge McIntosh) unreasonably delayed ruling on the same pleading at issue in the current case (the February 19, 2021, affidavit of accusation filed by relator) in the same underlying case at issue in the current case (Jones I). In Jones II, relator filed the identical October 29, 2021, writ of procedendo he filed with the common pleas court in Jones I. The magistrate in Jones II recommended dismissal of the action based upon relator‘s failure to include an
{11} 5. On May 2, 2022, relator filed the current complaint in procedendo in this court. The complaint alleges that respondent has unreasonably delayed ruling on the February 19, 2021, affidavit of accusation filed by relator in C.P. No. 20CV-1621. Relator‘s complaint includes an affidavit, in which relator avers the following, in pertinent part: (1) he has never filed a civil complaint against any state employee asking for financial damages; (2) he filed a postconviction relief motion (petition to vacate and set aside his judgment of conviction), which was denied and subsequently affirmed on March 28, 2017, in State v. Jones, 10th Dist. Franklin No. 16AP-128, 2017-Ohio-1121; (3) he filed a postconviction relief motion, which was denied and subsequently decided by the Tenth District Court of Appeals on January 25, 2018, in State v. Jones, 10th Dist. Franklin No. 17AP-431, 2018-Ohio-306; and (4) he filed a writ of procedendo in Jones, 2019-Ohio-3865, which was dismissed on September 24, 2019.
{12} 6. On June 30, 2022, respondent filed a
{13} 7. On August 1, 2022, relator filed a motion to strike respondent‘s reply to relator‘s response to respondent‘s motion to dismiss.
Conclusions of Law:
{15} In order to be entitled to a writ of procedendo, a relator must establish a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 65 (1996). A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. Id. An ” ‘inferior court‘s refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.’ ” State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33, 35 (1995), quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110 (1994).
{16} A motion to dismiss pursuant to
{17} The magistrate may take judicial notice of the pleadings and orders in related cases when these are not subject to reasonable dispute, at least insofar as they affect the present original action. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199, 2020-Ohio-2690, ¶ 33, citing Evid.R. 201(B); State ex rel. Ohio Republican Party v. Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, ¶ 18; and State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, ¶ 8. Furthermore, a court may take judicial notice of pleadings that are readily accessible on the internet. See Draughon v. Jenkins, 4th Dist. No. 16CA3528, 2016-Ohio-5364, ¶ 26, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, ¶ 8, 10 (a court may take judicial notice of appropriate matters, including judicial opinions and public records accessible from the internet, in determining a
{18}
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;
(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.
{19}
{20} In the present case, relator failed to file an affidavit fully complying with
{21} Furthermore, as we indicated in Jones II, relator has filed several civil actions within the past five years that he does not include in his current affidavit, including State ex rel. Jones v. Hogan, 10th Dist. No. 20AP-319, 2021-Ohio-526 (dismissing relator‘s original action requesting writ of mandamus and prohibition); State v. Jones, 10th Dist. No. 18AP-578, 2019-Ohio-1014 (affirming denial of successive motion for postconviction relief); and Jones, 2016-Ohio-8342 (denying relator‘s request for writ of mandamus to compel respondent judge to rule on petition for postconviction relief). In addition, in his current affidavit, relator does not include the procedendo action he filed in Jones II. Therefore, relator‘s affidavit does not comply with
{22} Accordingly, it is the magistrate‘s decision that, based upon relator‘s failure to comply with the mandatory filing requirements of
/S/ MAGISTRATE
THOMAS W. SCHOLL III