[Cite as State ex rel. Jones v. McIntosh, 2019-Ohio-3865.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Antonio M. Jones,               :

                 Relator,                             :
                                                                    No. 19AP-32
v.                                                    :

Franklin County Common Pleas                          :       (REGULAR CALENDAR)
Judge Stephen L. McIntosh,
                                                      :
                 Respondent.
                                                      :



                                            D E C I S I O N

                                   Rendered on September 24, 2019


                 On brief: Antonio M. Jones, pro se.

                                  IN PROCEDENDO
                            ON SUA SPONTE DISMISSAL AND
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BEATTY BLUNT, J.
        {¶ 1} Relator, Antonio M. Jones, an inmate incarcerated at Chillicothe
Correctional Institution, has filed an original action requesting that this court issue a writ
of procedendo ordering respondent Stephen L. McIntosh, the administrative judge of the
Franklin County Court of Common Pleas, to rule on relator's application to cause arrest or
prosecution.
        {¶ 2} Relator's affidavit and application were filed on August 23, 2018 pursuant to
R.C. 2935.09, and asserted that his criminal trial attorney had committed the offenses of
interference with civil rights and obstruction of official business during the defense of his
criminal case in 2014. Rather than being referred to the respondent as administrative judge
for review and ruling, the application and affidavit were docketed by the clerk of the court
No. 19AP-32                                                                                2


of the court of common pleas as a civil case, which was assigned to Judge Julie M. Lynch.
See Jones v. Thomas, Franklin C.P. No. 18CV-7218. On January 14, 2019, relator filed this
action and requested summary judgment, arguing that he was entitled to the writ because
the trial court had taken no action on his affidavit and application within 120 days.
       {¶ 3} Pursuant to Civ.R. 53 and Loc.R.13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate of this court. On May 31, 2019, the magistrate
issued the appended decision, including findings of fact and conclusions of law, and
recommended that this court sua sponte dismiss relator's action as premature, since the
civil case was proceeding timely according to the trial court's schedule. (Mag.'s Decision at
¶ 14-16.)
       {¶ 4} Relator filed an objection to the magistrate's decision on June 12, 2019,
arguing that the magistrate's decision was "based upon misinformation * * * as relator's
[sic] originally filed a criminal affidavit pursuant to R.C. § 2935.09 against his former
defense counsel * * * [and] has never requested monetary damages." (June 12, 2019 Objs.
to Mag.'s Decision at 1.)
       {¶ 5} But two days earlier, Judge Lynch had ruled on the merits of relator's
underlying affidavit and application and held that there was no probable cause to issue a
warrant, that relator's affidavit was not made in good faith, and also that the filing was in
substance a collateral attack on relator's criminal conviction. (June 10, 2019 Decision &
Order, Franklin C.P. No. 18CV-7218.) On June 25, 2019, relator filed an appeal of that
judgment to this court, and the case is now being briefed. (Notice of Appeal in case No.
19AP-401.)    Relator's substantive claims regarding his affidavit and application will
therefore be resolved by this court in the direct appeal of that case.
       {¶ 6} Under Ohio law, procedendo will not lie to compel an act that has already
been performed. See, e.g., State ex rel. Lester v. Pepple, 130 Ohio St.3d 353, 2011-Ohio-
5756, ¶ 1. As Judge Lynch has now ruled on relator's application and affidavit, relator's
request for a writ of procedendo to issue a ruling on that application is moot. Accordingly,
we sua sponte dismiss this cause.
No. 19AP-32                                                                              3


      {¶ 7} Based on the foregoing, the decision of the magistrate is vacated and relator's
objection is moot. Relator's request for a writ of procedendo and motion for summary
judgment are dismissed as moot.
                                                                         Cause dismissed.
                         SADLER and BRUNNER, JJ., concur.
No. 19AP-32                                                                               4


                                       APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Antonio M. Jones,          :

               Relator,                      :

v.                                           :                     No. 19AP-32

Franklin County Common Pleas                 :
Judge Stephen L. McIntosh,                                   (REGULAR CALENDAR)
                                             :
               Respondent.
                                             :



                          MAGISTRATE'S DECISION

                                Rendered on May 31, 2019



               Antonio M. Jones, pro se.


                                IN PROCEDENDO
                          ON SUA SPONTE DISMISSAL AND
                    RELATOR'S MOTION FOR SUMMARY JUDGMENT

       {¶ 8} Relator, Antonio M. Jones, has filed this original action requesting this court
issue a writ of procedendo ordering respondent, Stephen L. McIntosh, judge of the Franklin
County Court of Common Pleas, to rule on his motion filed August 23, 2018 in his
underlying criminal case.
Findings of Fact:
       {¶ 9} 1. Relator is an inmate currently incarcerated at Chillicothe Correctional
Institution.
       {¶ 10} 2. Relator filed this original action against respondent on January 14, 2019.
No. 19AP-32                                                                                   5


       {¶ 11} 3. Relator's underlying case is Jones v Thomas, Franklin C.P. No. 18CV-7218.
       {¶ 12} 4. A review of the Franklin County Case Information Online docket shows
the trial court has set a schedule for the case, specifically:
          ****     INITIAL STATUS CONFERENCE
          01/10/19 INITIAL JOINT DISCLOSURE OF ALL WITNESSES
          03/07/19 SUPPLEMENTAL JOINT DISCLOSURE OF ALL
          WITNESSES
          05/30/19 DISPOSITIVE MOTIONS
          06/13/19 DISCOVERY CUT-OFF
          07/25/19 DECISIONS ON MOTIONS
          08/08/19 FINAL PRE-TRIAL CONFERENCE/ORDER (OR BOTH)
          08/27/19 TRIAL ASSIGNMENT

       {¶ 13} 5. Relator has filed a motion for summary judgment in which he asserts that
respondent must rule on his motion filed August 23, 2018 within 120 days. Having failed
to do so, relator asserts it is clear he is entitled to the requested writ.
Conclusions of Law:
       {¶ 14} For the reasons that follow, it is this magistrate's decision that this court
should sua sponte dismiss relator's procedendo action as it is premature.
       {¶ 15} In order to be entitled to a writ of procedendo, a relator must establish a clear
legal right to require that 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.
       {¶ 16} 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).
       {¶ 17} Procedendo is an order from a court of superior jurisdiction to proceed to
judgment: it does not attempt to control the inferior court as to what the judgment should
be. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462
(1995).
No. 19AP-32                                                                                   6


       {¶ 18} As an initial matter, it appears that relator has confused the filing of a motion
(perhaps in his underlying criminal case) with the civil complaint he filed against his
attorney on August 23, 2018. There is no motion filed August 23, 2018─it is a civil
complaint. Respondent is not required to bring the civil action to resolution within 120
days. As such, relator's motion for summary judgment is denied.
       {¶ 19} As can be seen from a review of the Case Information Online for relator's
underlying civil case, the trial court has set a schedule and relator has not indicated that the
trial court is not keeping to that schedule. The trial court has not refused to act in
accordance with the schedule which the court set forth and relator has not asserted that the
trial court has failed to proceed. Relator is asking this court to order the trial judge to rule
in his favor, by granting his motion, and immediately cause the arrest and prosecution of
the defendant named in the complaint. Finding that the trial court has not unreasonably
delayed any of the proceedings, the magistrate finds that relator's procedendo action is
premature and this court should sua sponte dismiss his complaint. Further, inasmuch as
relator has not prevailed, this court should order the clerk to deduct from relator's inmate
account periodic payments until the filing fee is paid in full.

                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
              unless the party timely and specifically objects to that factual
              finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
