[Cite as State ex rel. Jones v. McIntosh, 2023-Ohio-496.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

[State ex rel.] Antonio Jones, : 

Relator, :

v. : No. 22AP-269

Franklin County Common Pleas : (REGULAR CALENDAR)

Court Administrative Judge Mr. Stephen

McIntosh, :

 

Respondent. :

D E C I S I O N

Rendered on February 21, 2023

Antonio Jones, pro se. 

G. Gary Tyack, Prosecuting Attorney, and Charles R. Ellis, for 

respondent.

IN PROCEDENDO 

ON MOTIONS

JAMISON, J.

{¶ 1} Relator, Antonio Jones, an inmate in the custody of the Ohio Department of 

Rehabilitation and Correction, has filed an original action requesting this court issue a writ 

of procedendo ordering respondent, a judge of the Franklin County Court of Common 

Pleas, to rule on an affidavit of accusation. Respondent filed a motion to dismiss pursuant 

to Civ.R. 12(B)(6) for failure to comply with R.C. 2969.25(A). Relator has filed a motion to 

strike respondent's reply to relator's response to respondent's motion to dismiss.

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 
No. 22AP-269 2

appended decision, including findings of fact and conclusions of law, recommending this 

court grant respondent's motion to dismiss, deny relator's motion to strike, and deny 

relator's request for a writ of procedendo. Relator filed no objections.

{¶ 3} "If no timely objections are filed, the court may adopt a magistrate's decision 

unless it determines that there is an error of law or other defect evident on the face of the 

magistrate's decision." Civ.R. 53(D)(4)(c). See, e.g., State ex rel. Armengau v. French, 10th 

Dist. No. 16AP-223, 2016-Ohio-5342, ¶ 3 (Finding no error or other defect on the face of 

the magistrate's decision, we adopt the decision of the magistrate as our own, including the 

findings of fact and conclusions of law.). "Whether or not objections are timely filed, a court 

may adopt or reject a magistrate's decision in whole or in part, with or without modification. 

A court may hear a previously-referred matter, take additional evidence, or return a matter 

to a magistrate." Civ.R. 53(D)(4)(b).

{¶ 4} We note that the magistrate's decision contains a typographical error in 

findings of fact at appendix paragraph 8, wherein it refers to a case termination date of 

January 28, 2021 as January 28, 2020. We also note that case No. 16AP-25 was filed on 

January 13, 2016, which is outside the five-year lookback provision of R.C. 2969.25(A), but 

the other listed cases were filed inside the period.

{¶ 5} Upon review, and other than the two obvious errors above, we find no other 

error in the magistrate's findings of fact or conclusions of law. Therefore, except for 

correcting the errors, we adopt the magistrate's decision as our own, including the findings 

of fact and conclusions of law therein. In accordance with the magistrate's decision,

respondent's motion to dismiss is granted, relator's motion to strike is denied, and this 

action is dismissed.

Motion to dismiss granted; motion to strike denied;

action dismissed.

DORRIAN and BOGGS, JJ., concur.
No. 22AP-269 3

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Antonio Jones, : 

Relator, :

v. : No. 22AP-269

Franklin County Common Pleas : (REGULAR CALENDAR)

Court Administrative Judge Mr. Stephen

McIntosh, :

 

Respondent. :

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

Rendered on November 15, 2022

Antonio Jones, pro se. 

G. Gary Tyack, Prosecuting Attorney, and Charles R. Ellis, for 

respondent.

IN PROCEDENDO

ON MOTIONS 

{¶ 6} Relator, Antonio Jones, an inmate in the custody of the Ohio Department of 

Rehabilitation and Correction, commenced this original action seeking a writ of 

procedendo ordering respondent, Judge Stephen McIntosh of the Franklin County Court 

of Common Pleas, to rule on a pending February 19, 2021, affidavit of accusation filed in 

Franklin C.P. No. 20CV-1621. Respondent has filed a motion to dismiss relator's complaint 
No. 22AP-269 4

for failure to comply with the filing requirements of R.C. 2969.25(A). Relator has filed a 

motion to strike respondent's reply to relator's response to respondent's motion to dismiss. 

Findings of Fact:

{¶ 7} 1. At the time of the filing of his complaint, relator was an inmate incarcerated 

at Chillicothe Correctional Institution.

{¶ 8} 2. Respondent is a judge in the Franklin County Court of Common Pleas and 

presides over Franklin C.P. No. 20CV-1621 ("Jones I"). In that case, on February 26, 2020,

relator filed an affidavit of accusation pursuant to R.C. 2935.09 and 2935.10. On December 

6, 2020, respondent issued a notice, ordering relator show good cause within 10 days as to 

why the case should not be dismissed based upon relator's failure to obtain service against 

the named defendant. On January 28, 2020, respondent dismissed relator's action based 

upon relator's failure to obtain service upon the named defendant.

{¶ 9} 3. On February 19, 2021, in Jones I, relator filed another affidavit of 

accusation pursuant to R.C. 2935.09 and 2935.10 against the same named defendant. On 

October 29, 2021, relator filed a memorandum in support of writ of procedendo in case No. 

20CV-1621, requesting respondent to rule on his February 19, 2021, affidavit of accusation. 

On May 25, 2022, respondent filed an entry, finding the October 29, 2021, memorandum 

in support moot, given the case was terminated on January 28, 2020.

{¶ 10} 4. On December 9, 2021, relator filed a complaint in procedendo in State ex 

rel. Jones v. Franklin Cty. Common Pleas Court Adm. Judge, 10th Dist. No. 21AP-662,

2022-Ohio-1296 ("Jones II"). The complaint in Jones II alleges that the same respondent 

as in the current case (Judge McIntosh) unreasonably delayed ruling on the same pleading 

at issue in the current case (the February 19, 2021, affidavit of accusation filed by relator) 

in the same underlying case at issue in the current case (Jones I). In Jones II, relator filed 

the identical October 29, 2021, writ of procedendo he filed with the common pleas court in 

Jones I. The magistrate in Jones II recommended dismissal of the action based upon 

relator's failure to include an R.C. 2969.25(A) affidavit, finding that relator commenced at 

least one civil action in the prior five years (the action to which he wishes this court to direct 

a writ, i.e., Jones I). Upon objections, the court found that, even if the underlying affidavitof-accusation action was not a civil matter, citing State v. Fraley, 12th Dist. No. CA2019-

09-072, 2020-Ohio-3763, ¶ 25 (characterizing a proceeding under R.C. 2935.09(D) as a 
No. 22AP-269 5

proto-criminal action, a statutory stage that precedes the potential commencement of a 

criminal action), it took judicial notice of the fact relator has filed several civil actions within 

the past five years, including State ex rel. Jones v. McIntosh, 10th Dist. No. 19AP-32, 2019-

Ohio-3865 (dismissing as moot relator's original action requesting writ of procedendo); 

State ex rel. Jones v. Hogan, 10th Dist. No. 20AP-319, 2021-Ohio-526 (dismissing relator's 

original action requesting writ of mandamus and prohibition); State v. Jones, 10th Dist. 

No. 18AP-578, 2019-Ohio-1014 (affirming denial of successive motion for postconviction 

relief); and State ex rel. Jones v. Court of Common Pleas, 10th Dist. No. 16AP-25, 2016-

Ohio-8342 (denying relator's request for writ of mandamus to compel respondent judge to 

rule on petition for postconviction relief). The court concluded that, notwithstanding the 

magistrate's focus on Jones I, it agreed with the magistrate's ultimate determination that 

relator had commenced at least one civil action or appeal in the preceding five years, and,

therefore, relator's failure to provide an affidavit as required by R.C. 2969.25(A) warranted 

dismissal. 

{¶ 11} 5. On May 2, 2022, relator filed the current complaint in procedendo in this 

court. The complaint alleges that respondent has unreasonably delayed ruling on the 

February 19, 2021, affidavit of accusation filed by relator in C.P. No. 20CV-1621. Relator's 

complaint includes an affidavit, in which relator avers the following, in pertinent part: (1) 

he has never filed a civil complaint against any state employee asking for financial damages; 

(2) he filed a postconviction relief motion (petition to vacate and set aside his judgment of 

conviction), which was denied and subsequently affirmed on March 28, 2017, in State v. 

Jones, 10th Dist. Franklin No. 16AP-128, 2017-Ohio-1121; (3) he filed a postconviction relief 

motion, which was denied and subsequently decided by the Tenth District Court of Appeals 

on January 25, 2018, in State v. Jones, 10th Dist. Franklin No. 17AP-431, 2018-Ohio-306; 

and (4) he filed a writ of procedendo in Jones, 2019-Ohio-3865, which was dismissed on 

September 24, 2019. 

{¶ 12} 6. On June 30, 2022, respondent filed a Civ.R. 12(B)(6) motion to dismiss 

relator's complaint based upon his failure to comply with R.C. 2969.25(A). 

{¶ 13} 7. On August 1, 2022, relator filed a motion to strike respondent's reply to 

relator's response to respondent's motion to dismiss. 

Conclusions of Law:
No. 22AP-269 6

{¶ 14} The magistrate recommends this court grant respondent's motion to dismiss 

relator's complaint for writ of procedendo.

{¶ 15} In order to be entitled to a writ of procedendo, a relator must establish a clear 

legal right to require the court to proceed, a clear legal duty on the part of the court to 

proceed, and the lack of an adequate remedy in the ordinary course of law. State ex rel. 

Miley v. Parrott, 77 Ohio St.3d 64, 65 (1996). A writ of procedendo is appropriate when a 

court has either refused to render a judgment or has unnecessarily delayed proceeding to 

judgment. Id. An " 'inferior court's refusal or failure to timely dispose of a pending action is 

the ill a writ of procedendo is designed to remedy.' " State ex rel. Dehler v. Sutula, 74 Ohio 

St.3d 33, 35 (1995), quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110 

(1994).

{¶ 16} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the 

complaint. "In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6)'it must appear 

beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him 

to recovery.' " T & M Machines, LLC v. Yost, 10th Dist. No. 19AP-124, 2020-Ohio-551, ¶ 10,

quoting O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975),

syllabus. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume 

that all factual allegations in the complaint are true and make all reasonable inferences in 

the plaintiff's favor. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio3608, ¶ 14. 

{¶ 17} The magistrate may take judicial notice of the pleadings and orders in related 

cases when these are not subject to reasonable dispute, at least insofar as they affect the 

present original action. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199,

2020-Ohio-2690, ¶ 33, citing Evid.R. 201(B); State ex rel. Ohio Republican Party v. 

Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, ¶ 18; and State ex rel. Womack v. Marsh,

128 Ohio St.3d 303, 2011-Ohio-229, ¶ 8. Furthermore, a court may take judicial notice of 

pleadings that are readily accessible on the internet. See Draughon v. Jenkins, 4th Dist. No. 

16CA3528, 2016-Ohio-5364, ¶ 26, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 

195, 2007-Ohio-4798, ¶ 8, 10 (a court may take judicial notice of appropriate matters,

including judicial opinions and public records accessible from the internet, in determining 

a Civ.R. 12(B)(6) motion); and Giannelli, 1 Baldwin's Ohio Practice Evidence, Section 201.6 
No. 22AP-269 7

(3d Ed.2015) (noting that the rule generally precluding a court from taking judicial notice 

of other cases has been relaxed if the record is accessible on the internet). 

{¶ 18} R.C. 2969.25(A) requires an inmate to file, at the time he commences a civil 

action against a governmental entity or employee, an affidavit listing each civil action or 

appeal of a civil action that he filed in the past five years. R.C. 2969.25(A) provides:

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:

(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.

R.C. 2969.25 (A)(1) through (4).

{¶ 19} R.C. 2969.25 requires strict compliance. State ex rel. Swanson v. Ohio Dept. 

of Rehab. & Corr., 156 Ohio St.3d 408, 2019-Ohio-1271, ¶ 6. Compliance with the provisions 

of R.C. 2969.25 is mandatory and the failure to satisfy the statutory requirements is 

grounds for dismissal of the action. State ex rel. Washington v. Ohio Adult Parole Auth.,

87 Ohio St.3d 258 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 

(1998). Nothing in R.C. 2969.25 permits substantial compliance. State ex rel. Manns v. 

Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4, citing Martin v. Ghee, 10th Dist. No. 
No. 22AP-269 8

01AP-1380, 2002-Ohio-1621. Furthermore, the failure to comply with R.C. 2969.25 cannot 

be cured at a later date by belatedly attempting to file a complaint affidavit. State ex rel. 

Young v. Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9.

{¶ 20} In the present case, relator failed to file an affidavit fully complying with 

R.C. 2969.25(A). Although relator did include some of the information required by 

R.C. 2969.25(A) in his affidavit, he failed to include other required information. With 

regard to the postconviction motions relator lists, he variously failed to indicate the 

associated case names, case numbers, court names, and party names. Relator also failed to 

indicate the court and party names for the Jones, 2019-Ohio-3865, case. Therefore, his

affidavit did not comply with R.C. 2969.25(A) in these respects.

{¶ 21} Furthermore, as we indicated in Jones II, relator has filed several civil actions 

within the past five years that he does not include in his current affidavit, including State 

ex rel. Jones v. Hogan, 10th Dist. No. 20AP-319, 2021-Ohio-526 (dismissing relator's 

original action requesting writ of mandamus and prohibition); State v. Jones, 10th Dist. 

No. 18AP-578, 2019-Ohio-1014 (affirming denial of successive motion for postconviction 

relief); and Jones, 2016-Ohio-8342 (denying relator's request for writ of mandamus to 

compel respondent judge to rule on petition for postconviction relief). In addition, in his 

current affidavit, relator does not include the procedendo action he filed in Jones II.

Therefore, relator's affidavit does not comply with R.C. 2969.25(A) in these respects.

{¶ 22} Accordingly, it is the magistrate's decision that, based upon relator's failure 

to comply with the mandatory filing requirements of R.C. 2969.25, this court should grant 

respondent's motion to dismiss relator's complaint for writ of procedendo pursuant to 

Civ.R. 12(B)(6). Relator's August 1, 2022, motion to strike respondent's reply to relator's 

response to respondent's motion to dismiss is denied. 

/S/ MAGISTRATE 

 THOMAS W. SCHOLL III
No. 22AP-269 9

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).