State ex rel. Graham v. Niemeyer
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[Cite as State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 2005-Ohio-5522.] THE STATE EX REL. GRAHAM, APPELLANT, v. NIEMEYER, JUDGE, APPELLEE. [Cite as State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 2005-Ohio-5522.] Appeal from dismissal of complaint for writ of procedendo Writ of procedendo denied, when. (No. 2005-0716 Submitted September 28, 2005 Decided November 2, 2005.) APPEAL from the Court of Appeals for Hancock County, No. 5-05-06. __________________ Per Curiam. {¶ 1} This is an appeal from a judgment dismissing a complaint for a writ of procedendo. {¶ 2} On February 22, 2005, appellant, Nathan Graham, an inmate, filed a complaint in the Court of Appeals for Hancock County. Graham sought a writ of procedendo to compel appellee, Hancock County Court of Common Pleas Judge Joseph H. Niemeyer, to conduct an evidentiary hearing and rule on a newtrial motion in Graham s criminal case. On March 15, 2005, Judge Niemeyer denied Graham s motion because it was not timely filed. Judge Niemeyer then answered Graham s procedendo complaint and moved for summary judgment. {¶ 3} On April 6, 2005, the court of appeals dismissed the complaint. {¶ 4} We affirm the judgment of the court of appeals. A writ of procedendo will not issue to compel the performance of a duty that has already been performed. State ex rel. Bortoli v. Dinkelacker, 105 Ohio St.3d 133, 2005Ohio-779, 823 N.E.2d 448, ¶ 3. Judge Niemeyer has ruled on Graham s motion for new trial, and insofar as Graham challenges that ruling, he has or had an adequate remedy by appeal. SUPREME COURT OF OHIO {¶ 5} Moreover, Graham failed to comply with R.C. 2969.25(A)(1) because his affidavit of prior civil actions did not contain a brief description of the nature of the civil action[s] or appeal[s] that he specified. Graham s noncompliance with R.C. 2969.25 warranted dismissal. State ex rel. Norris v. Giavasis, 100 Ohio St.3d 371, 2003-Ohio-6609, 800 N.E.2d 365, ¶ 4. R.C. 2969.25 applies to procedendo claims. State ex rel. Kimbro v. Glavas, 97 Ohio St.3d 197, 2002-Ohio-5808, 777 N.E.2d 257, ¶ 3. Judgment affirmed. MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O CONNOR, O DONNELL and LANZINGER, JJ., concur. __________________ Nathan Graham, pro se. ______________________ 2
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