[Cite as Harris v. Smith, 2012-Ohio-151.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                 :   JUDGES:
DWAYNE HARRIS                                    :   W. Scott Gwin, P.J.
                                                 :   John W. Wise, J.
                                     Plaintiff   :   Julie A. Edwards, J.
                                                 :
-vs-                                             :   Case No. 2011CA00204
                                                 :
                                                 :
KEITH SMITH, et al.,                             :   OPINION

                                Defendants




CHARACTER OF PROCEEDING:                              Criminal Appeal from Stark County
                                                      Court of Common Pleas Case No.
                                                      2010CV0165D

JUDGMENT:                                             Dismissed

DATE OF JUDGMENT ENTRY:                               January 17, 2012

APPEARANCES:

For Plaintiff                                         For Defendant Keith Smith

DWAYNE HARRIS                                         LAWRENCE BABICH
P.O. Box 8107                                         Assistant Attorney General
Mansfield, Ohio 44901                                 Criminal Justice Section
                                                      150 E. Gay Street, 16th Floor
                                                      Columbus, Ohio 43215

                                                      For Defendant Judge
                                                      James DeWeese

                                                      JILL COHRAN
                                                      Assistant Richland County Prosecutor
                                                      38 South Park Street, 2nd Floor
                                                      Mansfield, Ohio 44902
[Cite as Harris v. Smith, 2012-Ohio-151.]


Edwards, J.

        {¶1}    Plaintiff, Dwayne Harris, has filed a “Request for Writ of Procedendo Ad

Judicium” asking this Court to order Defendants, Keith Smith and Judge DeWeese to

rule on outstanding motions in his trial court case.

        {¶2}    Initially, we find this cause of action has not been filed in the proper venue.

All of the conduct which is the subject of the complaint occurred in Richland County.

Plaintiff filed the complaint in Stark County.       There is no conduct alleged to have

occurred in Stark County and no defendant resides in Stark County. Because this Court

also has jurisdiction to review original actions in Richland County, we will address the

merits of the complaint.

        {¶3}    We find Defendant Smith, who is the warden of the Mansfield Correctional

Institution, is not an appropriate party to this case. Writs of procedendo are limited to a

superior court ordering a lower court to proceed, “[T]he limited purpose of the writ is to

require a lower court to go forward ‘when a court has either refused to render a

judgment or has unnecessarily delayed proceeding to judgment.’ State ex rel. Miley v.

Parrott (1996), 77 Ohio St.3d 64, 65, 671 N.E.2d 24.” State ex rel. Lemons v. Kontos

2009 WL 4756269, 2 (Ohio App. 11 Dist.). Defendant Smith is not a court or a judge of

a court. For this reason, the complaint is dismissed as to Defendant Smith.

        {¶4}    We now turn to the complaint as it relates to Judge DeWeese.              The

Supreme Court has held that a judge’s performance of the requested act makes the

complaint in procedendo moot. State ex rel. Hazel v. Bender, 129 Ohio St.3d 496, 496,

954 N.E.2d 114, 115 (Ohio,2011). Subsequent to the filing of the instant complaint,

Defendant DeWeese ruled on outstanding motions by issuing a final, appealable order
Stark County App. Case No. 2011CA00204
                                                                                      3
in the underlying case which Plaintiff has appealed to this Court.   For this reason, we

find the complaint is moot as it relates to Defendant DeWeese.

      {¶5}    For these reasons, we find the complaint in procedendo lacks merit and

dismiss the complaint.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                                 JUDGES

JAE/ads1212
[Cite as Harris v. Smith, 2012-Ohio-151.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


DWAYNE HARRIS                                       :
                                                    :
                                        Plaintiff   :
                                                    :
                                                    :
-vs-                                                :       JUDGMENT ENTRY
                                                    :
KEITH SMITH, et al.                                 :
                                                    :
                                   Defendants       :       CASE NO. 2011CA00204




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

Complaint is dismissed. Costs assessed to plaintiff.




                                                        _________________________________


                                                        _________________________________


                                                        _________________________________

                                                                     JUDGES
