Opinion
No. 109537
05-11-2020
STATE EX REL. TERRANCE MITCHELL, Relator, v. MAUREEN E. CLANCY, Respondent.
Appearances: Terrance Mitchell, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Procedendo
Motion No. 536828
Order No. 538315
Appearances:
Terrance Mitchell, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent. MICHELLE J. SHEEHAN, J.:
{¶ 1} Relator, Terrance Mitchell, seeks a writ of procedendo to direct respondent, Judge Maureen E. Clancy, to rule on a postconviction relief petition filed by Mitchell in an underlying case. Respondent has issued a ruling in the underlying case. Therefore, Mitchell's complaint is moot. Mitchell's complaint is also fatally defective because it does not comply with R.C. 2969.25. Respondent's motion for summary judgment is granted, and relator's request for writ of procedendo is denied.
I. Factual and Procedural History
{¶ 2} On February 24, 2020, Mitchell filed a complaint for writ of procedendo. There, he claimed that he filed a timely postconviction relief petition on April 22, 2019, in Cuyahoga C.P. No. CR-17-620376. He further asserted that as of February 1, 2020, there had been no decision by the court regarding this petition. Mitchell requested that this court order respondent to proceed to judgment.
{¶ 3} On March 12, 2020, respondent filed a motion for summary judgment. She acknowledged that Mitchell filed a postconviction relief petition on April 22, 2019. Respondent asserted that she resolved the petition on December 23, 2019, by denying it and issuing findings of fact and conclusions of law. However, respondent stated that the order did not include a Civ.R. 58(B) notice to serve Mitchell with the decision. As a result, on February 26, 2020, respondent reentered the order and findings of fact and conclusions of law with the required Civ.R. 58(B) notification. Respondent attached certified copies of the December 23, 2019 and February 26, 2020 orders to her motion for summary judgment. She argued that Mitchell's instant complaint is moot as a result. Respondent also pointed out that Mitchell's complaint failed to comply with R.C. 2969.25, rendering it fatally defective. Mitchell did not timely oppose the motion for summary judgment.
II. Law and Analysis
A. Standards Applicable to this Action
{¶ 4} "A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." State ex rel. Miley v. Parrott, 77 Ohio St.3d 64, 65, 671 N.E.2d 24 (1996). Procedendo may not be used to control judicial discretion by dictating what decision must be made, but may only order a court to proceed to judgment. State ex rel. Utley v. Abruzzo, 17 Ohio St.3d 203, 204, 478 N.E.2d 789 (1985).
{¶ 5} The matter is before the court on respondent's motion for summary judgment. "'Summary judgment is appropriate when an examination of all relevant materials filed in the action reveals that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."'" State ex rel. Parker v. Russo, 158 Ohio St.3d 123, 2019-Ohio-4420, 140 N.E.3d 602, ¶ 5, quoting Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C).
B. Procedural Defects
{¶ 6} Mitchell's complaint indicates that he is an inmate at a state prison — Marion Correctional Institution. When an Ohio prison inmate commences an action against a government entity or employee, he or she must comply with R.C. 2969.25 when filing the complaint or petition. State ex rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764, ¶ 7. The failure to do so is sufficient grounds to deny a requested writ. Id.
{¶ 7} R.C. 2969.25(A) requires an inmate to include an affidavit of prior civil actions or appeals of civil actions commenced against government entities or employees for the previous five years. No such affidavit was included with Mitchell's complaint.
{¶ 8} For inmates that wish to waive the filing fee that must accompany the filing of a complaint, R.C. 2969.25(C) requires the inclusion of an affidavit of indigency and an affidavit of waiver. These affidavits must include:
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;R.C. 2969.25(C)(1)-(C)(2).
A statement that sets forth all other cash and things of value owned by the inmate at that time.
{¶ 9} Mitchell included an affidavit of indigency with his complaint, but he failed to include a statement from the institutional cashier setting forth the balance of his inmate account for the preceding six months. This requirement is mandatory and the failure to strictly comply is sufficient grounds to deny the requested relief. French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764, ¶ 7, citing State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, 894 N.E.2d 47, ¶ 4. Respondent is entitled to summary judgment based on these procedural defects.
C. Mootness
{¶ 10} Here, the certified journal entries attached to respondent's motion for summary judgment clearly establish that Mitchell has received the relief he has requested in his complaint. Respondent has ruled on his postconviction relief petition in the underlying case. "A writ of procedendo will not issue to compel the performance of a duty that has already been performed." State ex rel. Hazel v. Bender, 129 Ohio St.3d 496, 2011-Ohio-4197, 954 N.E.2d 114, ¶ 1. As such, the current action is moot. State ex rel. Morgan v. Fais, 146 Ohio St.3d 428, 2016-Ohio-1564, 57 N.E.3d 1140, ¶ 5. Respondent is entitled to summary judgment on the grounds of mootness.
{¶ 11} Respondent's motion for summary judgment is granted. The request for a writ of procedendo is denied. Appellee to bear costs; costs waived. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
{¶ 12} Writ denied. /s/_________
MICHELLE J. SHEEHAN, JUDGE MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR