Henderson v. Saffold

2014 Ohio 306

• Court: Ohio Court of Appeals
• Decided: January 27, 2014
• Docket: 100406
• Status: Published

Opinion

[Cite as Henderson v. Saffold, 2014-Ohio-306.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100406

PAUL S. HENDERSON, PATRICIA L. CASEY RELATORS

vs.

JUDGE SHIRLEY S. SAFFOLD RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Procedendo Motion No. 469069 Order No. 471303

RELEASE DATE: January 27, 2014 FOR RELATORS

Paul S. Henderson, pro se Inmate No. 573-468 940 Marion-Williamsport Rd. Marion Correctional Institution Marion, Ohio 43302-0057

Patricia L. Casey, pro se 15409 Euclid Ave., #405 East Cleveland, Ohio 44112

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 EILEEN A. GALLAGHER, J.:

{¶1} Paul S. Henderson has filed a complaint for a writ of procedendo. 1

Henderson’s request for a writ of procedendo is premised upon twelve separate

arguments. Although not specifically argued by Henderson, a review of Henderson’s

complaint reveals that he is also seeks a writ of mandamus. For the following reasons,

we decline to issue a writ of procedendo or a writ of mandamus on behalf of Henderson.

{¶2} Initially, we find that Henderson’s complaint is procedurally defective.

Henderson has failed to comply with Loc.App.R. 45(B)(1)(a), which mandates that a

complaint for an original action must be supported by a sworn affidavit that specifies the

details of the claim for relief. State ex rel. Leon v. Cuyahoga Cty. Court of Common

Pleas, 8th Dist. Cuyahoga No. 92826, 2009-Ohio-1612; State ex rel. Santos v.

McDonnell, 8th Dist. Cuyahoga No. 90659, 2008-Ohio-214; Turner v. Russo, 8th Dist.

Cuyahoga No. 87852, 2006-Ohio-4490; Barry v. Galvin, 8th Dist. Cuyahoga No. 85990,

2005-Ohio-2324.

1 The complaint names both Paul S. Henderson and Patricia L. Casey as relators. Casey, however, did not sign the complaint for a writ of procedendo. Pursuant to R.C. 4705.01, Henderson is prohibited from commencing a writ of procedendo on behalf of Casey unless he has been admitted to the practice of law by the Supreme Court of Ohio. In fact, this is Henderson’s second attempt to file an original action on behalf of Casey. In State v. Henderson, 8th Dist. Cuyahoga No. 97042, 2011-Ohio-5679, this court found that Henderson was engaged in the unauthorized practice of law because Casey did not sign the complaint for a writ of mandamus. Accordingly, we dismiss Casey from this original action. Traywick v. Fuerst, 8th Dist. Cuyahoga No. 96357, 2011-Ohio-947. {¶3} In addition, Henderson has failed to comply with R.C. 2969.25(A), which

requires the attachment of an affidavit to the complaint for a writ of

mandamus/procedendo that describes each civil action or appeal filed within the previous

five years in any state or federal court. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio

St.3d 421, 1998-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.

{¶4} Henderson has also failed to comply with R.C. 2969.25(C), which mandates

that an inmate who files a complaint against a government entity or government employee

must support the complaint with a statement that: (1) sets forth the balance in the inmate’s

account for the preceding six months, as certified by the institutional cashier; and (2) a

statement that sets forth all other cash and items of value as owned by the inmate. The

failure of Henderson to comply with R.C. 2969.25(C) warrants dismissal of his complaint

for a writ of mandamus. Martin v. Woods, 121 Ohio St.3d 609, 2009-Ohio-1928, 906

N.E.2d 1113.

{¶5} A writ of procedendo is proper only when a court has refused to enter

judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Crandall,

Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 1995-Ohio-98, 652 N.E.2d 742.

To be entitled to a writ of procedendo, Henderson must demonstrate: (1) a clear legal

right to require Judge Saffold to proceed to judgment; (2) Judge Saffold possesses a clear

legal duty to proceed to judgment; and (3) there exists no adequate remedy in the ordinary course of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common

Pleas, 72 Ohio St.3d 461, 1995-Ohio-26, 650 N.E.2d 899.

{¶6} The standards for issuing a writ of mandamus are similar. In order to be

entitled to a writ of mandamus, Henderson must show that: (1) Henderson possesses a

clear legal right to the relief prayed; (2) Judge Saffold possesses a clear legal duty to

provide the requested relief; and (3) there exists no other adequate remedy in the ordinary

course of the law. State ex rel. Kuczak v. Saffold, 67 Ohio St.3d 123, 616 N.E.2d 230

(1993).

{¶7} Henderson, through his first argument in support of complaint for a writ of

procedendo/mandamus, posits that the trial court possessed a duty to serve him with a

judgment as mandated by Civ.R. 58(B). However, Civ.R. 58(B) is not applicable to a

criminal action or judgment. State ex rel. Aziz v. Fuerst, 8th Dist. Cuyahoga No. 78018,

2000 Ohio App. LEXIS 3833 (Aug. 24, 2000).

{¶8} Henderson, through his second argument in support of his complaint for a

writ of procedendo/mandamus, posits that the Cuyahoga County Clerk of Courts

interfered with his civil rights under R.C. 2921.45 and also failed to serve him with a

judgment as mandated by Civ.R. 58(B). The Cuyahoga County Clerk of Courts was not

named as a party by Henderson and thus no claim has been raised through the second

argument. Moreover, the clerk possesses no duty to serve Henderson with a copy of a

journal entry entered in a criminal action. State ex rel. Daniels, 8th Dist. Cuyahoga No.

72192, 1997 Ohio App. LEXIS 2360 (May 29, 1997). {¶9} Henderson, through his third argument in support of his complaint for a writ

of procedendo/mandamus, posits that he possesses a legal right to be physically present at

all proceedings pursuant to Crim.R. 43. Henderson has failed to establish at which

proceedings he was prohibited from being physically present. Thus, Henderson has

failed to establish the right to be present at a specific proceeding and has failed to

establish the duty that requires Judge Saffold to allow Henderson to be phsyically present

at a specific proceeding. State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio

St.3d 79, 526 N.E.2d 786 (1988). In addition, Henderson possesses or possessed an

adequate remedy at law through an appeal. R.C. 2731.05; State ex rel. Casey Outdoor

Advertising, Inc. v. Ohio Dept. of Transp., 61 Ohio St.3d 429, 575 N.E.2d 181.

{¶10} Henderson, through his fourth argument in support of complaint for a writ

of procedendo/mandamus, posits that the trial court failed to properly advise him of

postrelease control when sentenced in State v. Henderson, Cuyahoga C.P. Nos.

CR-520709 and CR-530899. Any errors associated with the imposition of postrelease

control cannot be raised through an original action and must be addressed through a direct

appeal. State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d

402, 2010-Ohio-1808, 928 N.E.2d 722; Patterson v. Ohio Adult Parole Auth., 120 Ohio

St.3d 311, 2008-Ohio-6147, 898 N.E.2d 950.

{¶11} Henderson, through his fifth argument in support of complaint for a writ of

procedendo/mandamus, posits that the indictments issued in Case Nos. CR-520709 and

CR-530899 were defective. A claim of a defective indictment cannot be raised in an original action. State ex rel. Bandarapalli v. Gallagher, 128 Ohio St.3d 314,

2011-Ohio-230, 943 N.E.2d 1020. In addition, Henderson possessed an adequate

remedy at law through a direct appeal after conviction and sentence. Natl. Broadcasting

Co., Inc., supra; State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, supra.

{¶12} Henderson, through his sixth argument in support of the complaint for a

writ of procedendo/mandamus, posits that the trial court employed a sham legal process

and corrupt activity in rendering judgments in Case Nos. CR-520709 and CR-530899.

Henderson has failed to establish what specific duty has been violated by Judge Saffold.

In addition, the claims of a sham legal process and corrupt activity could have been raised

on direct appeal. State ex rel. Gray v. McDonnell, 8th Dist. Cuyahoga No. 99217,

2013-Ohio-1805.

{¶13} Henderson, through his seventh argument in support of complaint for a

writ of procedendo/mandamus, posits that law enforcement officers arrested him in

violation of R.C. 2935.09 and R.C. 2935.10 by failing to file valid affidavits or criminal

complaints. Henderson fails to establish what right or duty has been violated that

mandates a writ of mandamus. In addition, the argument of an improper affidavit or

complaint should have been raised on direct appeal. Gray, supra.

{¶14} Henderson, through his eighth argument in support of complaint for a writ

of procedendo/mandamus, posits that law enforcement officials made a controlled

delivery in violation of his Fourth Amendment rights. Henderson has failed to establish

what right or duty has been violated that mandates a writ of mandamus. In addition, the argument of a violation of Fourth Amendment rights should have been raised on direct

appeal. Gray, supra.

{¶15} Henderson, through his ninth argument in support of complaint for a writ

of procedendo/mandamus, posits that the indictments in Case Nos. CR-520709 and

CR-530899 were not properly filed pursuant to R.C. 2939.22. A defective indictment

may not be challenged through an original action. State ex re. Bandarapalli v.

Gallagher, supra.

{¶16} Henderson, through his tenth argument in support of complaint for a writ

of procedendo/mandamus, posits that he is entitled to a declaratory judgment that the

conviction in Case Nos. CR-520709 and CR-530899 are void. Neither procedendo nor

mandamus may be employed to seek a declaratory judgment from this court through an

original action. State ex re. Fillinger v. McCormick, 8th Dist. Cuyahoga No. 98191,

2012-Ohio-3469.

{¶17} Henderson, through his eleventh argument in support of the complaint for

a writ of procedendo/mandamus, posits that he is entitled to appointed appellate counsel.

Henderson fails to establish with specificity for what purpose appellate counsel should be

appointed. In addition, the appointment of appellate counsel is within the sound

discretion of Judge Saffold and cannot be controlled through an original action. State ex

rel. Bandy v. Villanueva, 8th Dist. Cuyahoga No. 97609, 2012-Ohio-2313; State ex rel.

Washington v. McDonnell, 8th Dist. Cuyahoga No. 73173, 1997 Ohio App. LEXIS 5801

(Dec. 24, 1997). {¶18} Henderson, through his twelfth argument in support of the complaint for a

writ of procedendo/mandamus, posits that Judge Saffold has failed to rule on various

motions that were filed on or after April 17, 2013 in Case Nos. CR-520709 and

CR-530899. Attached to Judge Saffold’s motion for summary judgment are copies of

judgments, journalized October 11, 2013, that demonstrate all outstanding motions have

been ruled upon. Thus, Henderson’s request for a writ of procedendo is moot. State ex

rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas, 74 Ohio St.3d 278,

1996-Ohio-117, 658 N.E.2d 723; State ex rel. Gantt v. Coleman, 6 Ohio St.3d 5, 450

N.E.2d 1163 (1983).

{¶19} Finally, the conduct of Henderson, through the continued filing of appeals

and original actions, may result in Henderson being declared a vexatious litigator.

Pursuant to Loc.App.R. 23(A), an appeal or original action shall be considered frivolous

if it is not reasonably grounded in fact or warranted by existing law. Loc.App.R. 23(B)

further provides that a party that habitually, persistently, and without reasonable cause

engages in frivolous conduct, may be declared a vexatious litigator subject to filing

restrictions. Henderson has continually taxed the limited resources of this court through

the filing of ten appeals and eighteen original actions since 1991. Even in a light most

favorable to Henderson, the ten appeals and eighteen original actions were or are not

reasonably grounded in fact or warranted by existing law. Thus, Henderson is

forewarned that the continued filing of appeals or original actions, that are not reasonably grounded in fact or warranted by existing law, shall result in the declaration of him being

a vexatious litigator.

{¶20} Accordingly, we grant Judge Saffold’s motion for summary judgment.

Costs to Henderson. The court directs the clerk of courts to serve all parties with notice

of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

{¶21} Writ denied.

EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR