State ex rel. Newell v. Fuerst

2012 Ohio 3697

• Court: Ohio Court of Appeals
• Decided: August 14, 2012
• Docket: 98198
• Status: Published

Opinion

[Cite as State ex rel. Newell v. Fuerst, 2012-Ohio-3697.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98198

STATE EX REL. EMANUEL NEWELL RELATOR

vs.

JUDGE NANCY A. FUERST RESPONDENT

JUDGMENT: WRITS DENIED

Writs of Mandamus and Procedendo Motion No. 454755 Order No. 456990

RELEASE DATE: August 14, 2012 RELATOR

Emanuel Newell No. A206453 Allen Correctional Institution Attention C-Unit 2338 North West Street Lima, Ohio 45802

ATTORNEYS FOR RESPONDENT

William D. Mason, Esq. Cuyahoga County Prosecutor By: James E. Moss, Esq. Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.:

{¶1} On April 10, 2012, the relator, Emanuel Newell, commenced this

mandamus and procedendo action against Judge William Mahon1 to compel the judge to

rule on two motions — (1) Motion to compel as for contempt in disobeying judgment and

(2) Motion to vacate journal entry filed 12-2-88 — which Newell filed in late 2011 in the

underlying case, State v. Newell, Cuyahoga C.P. No. CR-226066. On May 3, 2012, the

respondent judge, through the Cuyahoga County Prosecutor, moved for summary

judgment on the grounds of mootness. Attached to the dispositive motion was a

certified copy of a May 1, 2012 journal entry which denied both motions. Newell

never filed a response. Because the May 1, 2012 journal entry establishes that Newell

has received his requested relief, rulings on the subject motions, this writ action is moot.

{¶2} Relator also did not comply with R.C. 2969.25(C) which requires that an

inmate file a certified statement from his prison cashier setting forth the balance in his

private account for each of the preceding six months. This also is sufficient reason to

1 The original respondent was former judge William Mahon. In a prior entry, this court recognized that presiding Judge Nancy A. Fuerst is the assigned judge to the underlying case and instructed the clerk to substitute Judge Nancy Fuerst as the respondent and to change the caption in this action accordingly. See Civ.R.25(D). deny the writs, deny indigency status, and assess costs against the relator. State ex rel.

Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842.

{¶3} Accordingly, this court grants the respondent’s motion for summary

judgment and denies the application for writs of procedendo and mandamus. Relator to

pay costs. This court directs the clerk of court to serve all parties with notice of this

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

{¶4} Writs denied.

JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR