2023 Ohio 1604
Ohio Ct. App.2023Background
- Marvin “Andy” Napier died in Clinton County sheriff custody on Nov. 25, 2019; two years later Faith McLemore (his daughter) filed a pro se complaint under 42 U.S.C. § 1983 on behalf of herself, two siblings, and the deceased father.
- The complaint named numerous municipal and county entities, a nonprofit, and dozens of individual public officials; the complaint and a 167‑page amended complaint were unsigned and contained vague certificates claiming email or in‑person "service."
- The record contains no issued summonses, no proper returns of service under Civ.R. 4.1–4.6, and no use of Civ.R. 4.7 waiver procedures; some defendants never appeared.
- Wilmington and OCVJC defendants moved to dismiss for lack of personal jurisdiction and insufficient service; Clinton County defendants moved to strike under Civ.R. 11 (failure to sign).
- The trial court dismissed claims as to Wilmington, OCVJC, and Montgomery County coroner defendants for lack of service/personal jurisdiction, and struck the complaint/amended complaint against all defendants under Civ.R. 11 for failure to sign; McLemore appealed.
- The appellate court affirmed: it held dismissal for defendants not properly served was appropriate where those defendants preserved the defense, and striking pleadings under Civ.R. 11 was proper because the pleadings were unsigned; McLemore’s other arguments (POA, appointment of counsel, pro se leniency, merits) were rejected or found moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service of process / personal jurisdiction | McLemore argued procedural defects should be excused given seriousness of alleged misconduct | Defendants argued no proper summons/service per Civ.R. 4; lack of personal jurisdiction | Court: No summons/valid service in record; Wilmington, OCVJC, Montgomery coroner not served and raised defects promptly — dismissal for lack of personal jurisdiction affirmed |
| Civ.R. 11 — unsigned pleadings | McLemore contended missing signatures/clergy/procedural errors should not justify dismissal; sought leniency | Defendants moved to strike unsigned pleadings under Civ.R. 11 | Court: Pleadings were unsigned (typed names insufficient); Civ.R. 11 permits striking — strike affirmed; dismissing action proper because no pleadings remained |
| Power of attorney participation / unauthorized practice | McLemore claimed POA agents could speak and represent her at hearing under R.C. 1337.53 | Defendants relied on Coleman and R.C. 4705.01 to argue non‑attorneys cannot practice law or represent others in court | Court: POA permits acting in principal’s place as plaintiff but does not authorize non‑attorney to practice law; trial court properly refused to let POA act as counsel or otherwise engage in unauthorized practice |
| Request for appointed counsel / pro se leniency | McLemore argued disability and limited finances warranted appointed counsel and leniency for pro se status | Defendants and precedent: no general right to civil appointed counsel; pro se litigants must follow rules | Court: No statutory basis for appointed counsel in civil case; pro se status does not excuse compliance with procedural rules; request and leniency denied |
Key Cases Cited
- Office of Disciplinary Counsel v. Coleman, 88 Ohio St.3d 155 (power of attorney does not permit non‑attorney to practice law)
- Maryhew v. Yova, 11 Ohio St.3d 154 (personal jurisdiction requirement)
- Murphy Bros., Inc. v. Michetti Pipe Stringing, 526 U.S. 344 (service of process prerequisite to jurisdiction)
- Haines v. Kerner, 404 U.S. 519 (pro se pleadings are construed less stringently but are not exempt from procedural rules)
- Desenco, Inc. v. Akron, 84 Ohio St.3d 535 (statutes presumptively constitutional; courts should construe to avoid conflict with constitutional provisions)