Hillman v. Brown , 2018 Ohio 2409 ( 2018 )

[Cite as Hillman v. Brown, 2018-Ohio-2409.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Robert L. Hillman, :
Relator, :
v. : No. 17AP-836
Franklin County Common Pleas Judge, :
Mr. Jeffrey M. Brown, (REGULAR CALENDAR)
:
Respondent.
:
D E C I S I O N
Rendered on June 21, 2018
On brief: Robert L. Hillman, pro se.
On brief: Ron O'Brien, Prosecuting Attorney, for respondent.
IN PROCEDENDO
ON OBJECTION TO THE MAGISTRATE'S DECISION
BROWN, P.J.
{¶ 1} Relator, Robert L. Hillman, an inmate, has filed a pro se original action
requesting this court issue a writ of procedendo ordering respondent, the Honorable
Jeffrey M. Brown, a judge of the Franklin County Court of Common Pleas, to "proceed to
judgment" with respect to a complaint and affidavit relator filed, pursuant to R.C. 2935.09
and 2935.10, accusing another common pleas judge of a criminal offense.
{¶ 2} This court referred the matter to a magistrate of this court pursuant to
Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued
the appended decision, including findings of fact and conclusions of law, recommending
this court dismiss this action for failure to comply with R.C. 2969.25(A). Relator has filed
No. 17AP-836 2
a pro se objection to the magistrate's decision arguing he should have been allowed to
amend his pleading to comply with R.C. 2969.25.
{¶ 3} Relator seeks a writ of procedendo with respect to an "Affidavit of
Accusation and Criminal Complaint" he filed on November 29, 2016 in Franklin C.P. No.
16MS-674, alleging that a common pleas judge "deliberately committed the crimes of * * *
obstructing official business." Relator subsequently filed several motions in case No.
16MS-674, requesting the trial court to proceed to judgment on his affidavit and
complaint. On November 28, 2017, relator filed the instant original action in this court.
{¶ 4} In general, "[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. Sherrills v. Common Pleas, 72 Ohio St.3d 461, 462 (1995). However, " '[a]
writ of procedendo will not issue to compel the performance of a duty that has already
been performed.' " State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 2005-Ohio-
5522, ¶ 4, quoting State ex rel. Bortoli v. Dinkelacker, 105 Ohio St.3d 133, 2005-Ohio-
779, ¶ 3. An appellate court "can take judicial notice that the requested act has been
performed." State ex rel. Stanley v. D'Apolito, 7th Dist. No. 12 MA 218, 2013-Ohio-428,
¶ 8, citing State ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253 (1998).
{¶ 5} In the instant action, we take judicial notice of the fact that, subsequent to
the filing of this action, the trial court issued a decision and entry in case No. 16MS-674
on February 9, 2018, ruling on appellant's "Affidavit of Accusation and Criminal
Complaint." Because respondent has ruled on the affidavit and complaint in case No.
16MS-674, the petition for writ of procedendo before this court is rendered moot.
Similarly, relator's objection to the magistrate's decision is rendered moot and we do not
address it.
{¶ 6} Based on the foregoing, the decision of the magistrate is vacated, relator's
objection is moot, and relator's request for a writ of procedendo is dismissed.
Action dismissed.
DORRIAN and BRUNNER, JJ., concur.
___________________
No. 17AP-836 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Robert L. Hillman, :
Relator, :
v. : No. 17AP-836
Franklin County Common Pleas Judge, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on February 12, 2018
Robert L. Hillman, pro se.
Ron O'Brien, Prosecuting Attorney, for respondent.
IN PROCEDENDO
ON SUA SPONTE DISMISSAL
{¶ 7} In this original action, relator, an inmate of the Chillicothe Correctional
Institution ("CCI"), requests a writ of procedendo ordering respondent, the Honorable
Jeffrey Brown, a judge of the Franklin County Court of Common Pleas ("common pleas
court"), "to proceed to judgment" with respect to an affidavit relator allegedly filed
pursuant to R.C. 2935.09 in which he accuses another common pleas court judge of a
criminal offense.
Findings of Fact:
{¶ 8} 1. On November 28, 2017, relator, a CCI inmate, filed this original action
for a writ of procedendo against respondent.
No. 17AP-836 4
{¶ 9} 2. In this original action, relator has not deposited with the clerk of this
court the monetary sum required as security for the payment of costs. See Loc.R. 13(B) of
the Tenth District Court of Appeals.
{¶ 10} 3. With his complaint, relator filed an affidavit of indigency that he
executed on October 25, 2017.
{¶ 11} 4. With his complaint, relator filed a four-page document captioned
"Chillicothe Correctional Institution, Inmate Demand Statement." The statement is
certified by the CCI institutional cashier.
{¶ 12} 5. With his complaint, relator filed his affidavit that he executed
October 25, 2017. The affidavit states "within the past (5) years these are my civil filings."
Thereunder, relator provides eight paragraphs. The last four paragraphs which the
magistrate shall enumerate, state:
[Five] On June 1, 2015 relator filed in the Franklin County
Common Pleas Court a civil complaint against the Franklin
County Clerk of Court titled Robert L. Hillman-vs-Maryellen
O'Shaughnessy case No. 15CV-4626 before Judge
O'Donnell[.] The case is now under appeal in the Ohio
Supreme Court.
[Six] On June 9, 2016 relator filed a[n] application for a writ
of procedendo in the Franklin County Court of Appeals case
No. 14AP-436 concerning court costs imposed by the
Common Pleas Court.
[Seven] On [November] 13, 2017 case No. 17AP-793 writ of
procedendo in Hillman-vs-Beatty.
[Eight] On [April] 13, 2017 relator filed for a writ of
procedendo within the Ohio Supreme Court case No. 17-
0503 titled Hillman-vs-Franklin County Common Pleas
Court Administrator, case is still pending and 17-0626.
Conclusions of Law:
{¶ 13} It is the magistrate's decision that this court sua sponte dismiss this action,
as more fully explained below.
{¶ 14} R.C. 2969.25 provides:
(A) At the time that an inmate commences a civil action or
appeal against a government entity or employee, the inmate
No. 17AP-836 5
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 2323.51ofthe 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.
{¶ 15} Paragraph five of the civil actions affidavit states that, on June 1, 2015,
relator filed an action in the common pleas court against the Franklin County Clerk. The
case number (15CV-4626) is listed as well as the common pleas court judge assigned to
the case. However, paragraph five fails to give a brief description of the nature of the civil
action, as required by R.C. 2969.25(A)(1).
{¶ 16} Paragraph five ends with the statement "the case is now under appeal in the
Ohio Supreme Court." The case number of the appeal to the Supreme Court of Ohio is not
given. Also, the nature of the appeal is not given. Thus, paragraph five fails to satisfy the
requirements of R.C. 2969.25(A) with respect to the civil action and appeal that relator
endeavors to describe at paragraph five.
{¶ 17} Paragraph six of the civil actions affidavit states that relator filed a petition
for a writ of procedendo in this court on June 9, 2016 which was assigned case No. 14AP-
436. Allegedly, the action concerned court costs imposed by the common pleas court.
Paragraph six fails to state the outcome of the action and, thus, fails to satisfy the
requirements of R.C. 2969.25(A)(4).
No. 17AP-836 6
{¶ 18} Paragraph seven of the civil actions affidavit simply states "On
[November] 13, 2017 case No. 17AP-793 writ of procedendo in Hillman-vs-Beatty."
Paragraph seven fails to name the court and to give the outcome of the action.
{¶ 19} Paragraph eight of the civil actions affidavit makes reference to case No. "17-
0626." The online docket of the Supreme Court of Ohio shows that case No. 2017-0626 is
assigned to an action in prohibition that relator filed there. Thus, in paragraph eight of
the civil actions affidavit, relator's reference to case No. "17-0626" fails to name the court
or describe the nature of the action or state the outcome.
{¶ 20} The filing requirements of R.C. 2969.25(A) are mandatory, and failure to
comply with them subjects the complaint to dismissal. State ex rel. Arroyo v. Sloan, 142
Ohio St.3d 541, 2015-Ohio-2081; Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859;
State ex rel. Walker v. Sloan, 147 Ohio St.3d 353, 2016-Ohio-7451; State ex rel. Yantis v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-483, 2017-Ohio-8590.
{¶ 21} Accordingly, it is the magistrate's decision that this court sua sponte dismiss
this action.
/S/ MAGISTRATE
KENNETH W. MACKE
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).