[Cite as State ex rel. Peoples v. Schneider, 2015-Ohio-3207.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

David A. Peoples, 

 : 

 Relator, No. 15AP-437 

 : 

v. (REGULAR CALENDAR) 

 : 

Judge Schneider, Court of Common 

Pleas of Franklin County, Ohio, : 

 

 Respondent. : 

 

D E C I S I O N 

Rendered on August 11, 2015 

 

David A. Peoples, pro se. 

Ron O'Brien, Prosecuting Attorney, and Scott J. Gaugler, for 

respondent. 

 

IN PROCEDENDO 

ON MOTION TO DISMISS 

HORTON, J. 

{¶ 1} Relator, David A. Peoples, an inmate incarcerated at North Central 

Correctional Institution, commenced this original action requesting this court to issue a 

writ of procedendo ordering respondent, the Honorable Judge Charles Schneider, a judge 

of the Franklin County Court of Common Pleas, to rule on relator's petition for postconviction relief filed in the common pleas court on January 6, 2015. 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, this matter was referred to a magistrate who issued a decision on May 11, 2015, 

including findings of fact and conclusions of law, which is appended hereto. The 

magistrate recommended that this court dismiss relator's complaint due to relator's 
No. 15AP-437 2 

failure to comply with R.C. 2969.25. Relator has not filed an objection to the magistrate's 

decision. 

{¶ 3} On May 7, 2015, respondent filed a motion to dismiss relator's complaint, 

asserting that relator's request for the writ of procedendo was moot, as respondent ruled 

on relator's petition for post-conviction relief on February 11, 2015. Respondent attached 

a copy of the February 11, 2015 decision and entry denying relator's petition for postconviction relief to the motion to dismiss. It is well-established that procedendo does not 

lie to compel performance of a duty that has already been performed. See State ex rel. 

Fontanella v. Kontos, 117 Ohio St.3d 514, 2008-Ohio-1431, ¶ 6. Thus, as respondent has 

already ruled on relator's January 6, 2015 petition for post-conviction relief, relator is not 

entitled to a writ of procedendo. 

{¶ 4} Accordingly, we grant respondent's motion to dismiss, and dismiss relator's 

request for a writ of procedendo as moot. 

Action dismissed. 

BROWN, P.J. and DORRIAN, J., concur. 

_________________ 

 
No. 15AP-437 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

David A. Peoples, 

 : 

 Relator, No. 15AP-437 

 : 

v. (REGULAR CALENDAR) 

 : 

Judge Schneider, Court of Common 

Pleas of Franklin County, Ohio, : 

 

 Respondent. : 

 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on May 11, 2015 

 

David A. Peoples, pro se. 

Ron O'Brien, Prosecuting Attorney, and Scott J. Gaugler, for 

respondent. 

 

IN PROCEDENDO 

ON SUA SPONTE DISMISSAL 

{¶ 5} In this original action, relator, David A. Peoples, an inmate of the North 

Central Correctional Institution ("NCCI") requests a writ of procedendo ordering 

respondent, the Honorable Charles A. Schneider, a judge of the Franklin County Court of 

Common Pleas to rule upon relator's petition for post-conviction relief allegedly filed in 

the common pleas court on January 6, 2015 in Franklin C.P. No. 01CR-4150. 

Findings of Fact: 
No. 15AP-437 4 

{¶ 6} 1. On April 22, 2015, relator, an NCCI inmate, filed this original action 

against respondent. 

{¶ 7} 2. 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. 

{¶ 8} 3. With his complaint, relator filed a document captioned "Affidavit of 

Indigence" which relator executed on April 16, 2015. 

{¶ 9} 4. Relator did not file with his complaint a statement that sets forth the 

balance in his inmate account as certified by the institutional cashier pursuant to R.C. 

2969.25(C)(1). 

{¶ 10} 5. With his complaint, relator did file a document captioned "The 

Petitioner's Affidavit Pursuant to R.C. § 2969.25." The affidavit was executed by relator 

on April 17, 2015. 

{¶ 11} In the affidavit, relator avers: 

I have filed the following previous civil actions. #(1), A Writ 

of Mandamus, in the Ohio Supreme Court, at ColumbusOhio., On (11/19/2013). The writ was Dismissed on 

(01/22/2014). No Sanction was imposed. 

#(2), A Writ of Mandamus, in the Tenth Appellate District 

Court of Appeals on (10/11/2013). The Writ was Dismissed 

on (5/15/2014). No Sanction was imposed. 

{¶ 12} The affidavit executed April 17, 2015 fails to present a brief description of 

the nature of the civil action, fails to state the case name and case number in which the 

action was brought, and fails to name each party to the civil action. 

Conclusions of Law: 

{¶ 13} It is the magistrate's decision that this court sua sponte dismiss this action. 

{¶ 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 

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. 
No. 15AP-437 5 

(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 2323.51 of the 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. 

* * * 

(C) If an inmate who files a civil action or appeal against a 

government entity or employee seeks a waiver of the 

prepayment of the full filing fees assessed by the court in 

which the action or appeal is filed, the inmate shall file with 

the complaint or notice of appeal an affidavit that the inmate 

is seeking a waiver of the prepayment of the court's full filing 

fees and an affidavit of indigency. The affidavit of waiver 

and the affidavit of indigency shall contain all of the 

following: 

(1) A statement that sets forth the balance in the inmate 

account of the inmate for each of the preceding six months, 

as certified by the institutional cashier; 

(2) A statement that sets forth all other case and things of 

value owned by the inmate at that time. 

{¶ 15} Here, by failing to file a statement that sets forth the balance in his inmate 

account as certified by the institutional cashier, relator has failed to meet a mandatory 

filing requirement set forth in R.C. 2969.25(C)(1) and, thus, this court must dismiss this 

action. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533; Hawkins v. S. Ohio Corr. 

Facility, 102 Ohio St.3d 299, 2004-Ohio-2893. 

{¶ 16} Also, relator's affidavit executed April 17, 2015 that lists the two prior 

actions fails to comply with R.C. 2969.25(A) with respect to the two actions listed. 
No. 15AP-437 6 

{¶ 17} That is, the two prior actions listed are identified only by the date of the 

filing of the action, the date of the dismissal, and the court in which the action was filed. 

Relator's affidavit fails to comply with the requirements of R.C. 2969.25(A). Thus, this 

court must also dismiss this mandamus action because relator has failed to comply with 

the mandatory filing requirements set forth in R.C. 2969.25(A). 

{¶ 18} Accordingly, for all the above reasons, 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).