State ex rel. Brooks v. Saffold
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[Cite as State ex rel. Brooks v. Saffold, 2009-Ohio-4357.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93682 STATE OF OHIO, EX REL., ULIOUS BROOKS RELATOR vs. JUDGE SHIRLEY STRICKLAND SAFFOLD RESPONDENT JUDGMENT: WRIT DENIED WRIT OF PROCEDENDO MOTION NO. 425370 ORDER NO. 425454 RELEASE DATE: FOR RELATOR August 25, 2009 2 Ulious Brooks, pro se Inmate No. 453-172 P.O. Box 45699 Lucasville, Ohio 45699 ATTORNEYS FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor BY: James E. Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MELODY J. STEWART, J.: {¶ 1} On July 28, 2009, relator Ulious Brooks commenced this procedendo action against Judge Shirley Strickland Saffold to compel her to rule on his post conviction relief motions which were filed in State v. Brooks, Cuyahoga County Court of Common Pleas Case No. CR-435228 on September 14, 2004, and October 1, 2004. On August 17, 2009, Judge Strickland Saffold, through the Cuyahoga County Prosecutor s office, filed a motion for summary judgment. For the following reason, we grant the motion for summary judgment. {¶ 2} Initially, we find that Brooks complaint for a writ of procedendo is defective since it is improperly captioned. A complaint for a writ of procedendo must be brought in the name of the state, on relation of the person applying. 3 Brooks failure to properly caption the complaint warrants dismissal. Maloney v. Court of Common Pleas of Allen Cty. (1962), 173 Ohio St. 226, 181 N.E.2d 270; Dunning v. Judge Cleary (Jan. 11, 2001), Cuyahoga App. No. 78763. {¶ 3} Brooks also failed to support his complaint with an affidavit specifying the details of the claim as required by Local Rule 45(B)(1)(a). State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077; State ex rel. Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899. {¶ 4} We also find that the petition for a writ of procedendo is fatally defective since Brooks failed to comply with R.C. 2969.25, which mandates that he attach an affidavit to his complaint that describes each civil action or appeal of a civil action filed in the previous five years. The failure to provide such affidavit constitutes sufficient grounds for dismissal of the relator s complaint. State ex rel. Zanders v. Ohio Parole Board, 82 Ohio St.3d 421, 2008-Ohio-218, 696 N.E.2d 594; State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117, 685 N.E.2d 1242. {¶ 5} Nevertheless, attached to the motion for summary judgment is a copy of a journal entry which indicates that on August 13, 2009, Judge Strickland Saffold denied Brooks petitions for post-conviction relief and issued findings of fact and conclusions of law. Accordingly, we find that Brooks petition for a writ of procedendo is moot. State ex rel. Grant v. Coleman (1983), 6 Ohio St.3d 5, 450 N.E.2d 1163; State ex rel. Jerningham v. Cuyahoga Cty. Court of Common Pleas (1996), 74 Ohio St.3d 278, 658 N.E.2d 723. 4 {¶ 6} Accordingly, we grant Judge Strickland Saffold s motion for summary judgment and deny Brooks petition for a writ of procedendo. Respondent to bear costs. It is further ordered that the clerk shall serve upon all parties notice of this judgment and date of entry pursuant to Civ.R. 58(B). Writ denied. MELODY J. STEWART, JUDGE SEAN C. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR
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