TODD CLEAVENGER v. B.O., et al.
C.A. No. 29875
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 16, 2022
[Cite as Cleavenger v. B.O., 2022-Ohio-454.]
CALLAHAN, Judge.
STATE OF OHIO COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2020 04 1216
CALLAHAN, Judge.
{1} Appellant, Todd Cleavenger, appeals orders of the Summit County Court of Common Pleas that dismissed his complaint. This Court affirms.
I.
{2} Mr. Cleavenger filed a complaint against B.O., the victim of an alleged crime, and K.T., a witness to the events, asserting various claims against them in connection with their statements to law enforcement and testimony at trial. The complaint purported to sue them “in their personal, representative and official capacities[.]” It alleged that B.O. and K.T., by making false statements in police reports and testifying in his criminal trial, deprived Mr. Cleavenger of his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution while acting under color of law, pursuant to
{3} B.O. moved to dismiss the complaint under
{4} On September 22, 2020, the trial court ordered Mr. Cleavenger to perfect service against K.T. or show cause why service was not made by October 16, 2020. The order further provided that if Mr. Cleavenger did not do so, dismissal would result. Mr. Cleavenger moved for default judgment against K.T., arguing that K.T. “was properly served on June 17, 2020[]” and that the trial court “[could] plainly infer that [K.T.] was clearly made aware of this action against him, from a multitude of sources.” (Emphasis omitted.) Mr. Cleavenger filed a response on October 21, 2020. He reiterated his position that B.O. and K.T. had been served. On the same date, Mr. Cleavenger filed a “Praecipe For Service of Summons By Publication” and an affidavit in which he described the reasons that he believed that K.T. resided at the address previously provided to the clerk, but represented that in light of the trial court‘s determination, he “ha[d] no knowledge of defendant [K.T.‘s] address.”
{5} On October 24, 2020, the trial court dismissed the claims against K.T. “for failure to prosecute in accordance with
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED TO THE PREJUDICE OF CLEAVENGER, IN ORDERING DISMISSAL OF THIS CASE AGAINST [B.O. AND K.T.], BASED ON ITS OWN CONCLUSIONS OF EVIDENCE OUTSIDE OF THE COMPLAINT; CONSTRUED FACTS IN THE COMPLAINT IN THE MOVANTS’ FAVOR; [AND] [I]GNORED FACTS IN THE COMPLAINT[,] WHICH CONSTITUTED ERRORS OF LAW AND FACT BY THE TRIAL COURT.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRONEOUSLY DISMISSED THE CASE AGAINST [B.O. AND K.T.], AS IT FAILED TO PROPERLY [AND] APPROPRIATELY APPLY THE CORRECT STANDARD FOR DISMISSING SAID CASE.
{6} Mr. Cleavenger‘s first and third assignments of error appear to maintain that the trial court erred by dismissing his complaint with respect to B.O. In his third assignment of error, he has argued that the trial court applied the wrong standard in evaluating his claims against B.O. and, particularly, that the trial court incorrectly considered matters outside the complaint in determining the motion. In his first assignment of error, he has argued that the trial court‘s conclusions were incorrect. This Court does not agree.
{7} This Court must review an order that resolves a motion under
{8} Contrary to Mr. Cleavenger‘s assertions in his third assignment of error, the trial court did not err by holding his complaint to this standard. In addition, although a trial court is obligated under
Mr. Cleavenger‘s 42 U.S.C. 1983 Claims
{9}
{10} Section 1983‘s requirement of action under color of state law is undergirded by “the notion that individual conduct, to be actionable, must be taken pursuant to powers granted by virtue of state law and possible only because the actor is clothed with the authority of state law.” Cooperman v. Univ. Surgical Assocs., Inc., 32 Ohio St.3d 191, 199 (1987), superseded on other grounds by
{11} “[A] private party can fairly be said to be a state actor if (1) the deprivation complained of was ‘caused by the exercise of some right or privilege created by the State’ and (2) the offending party ‘acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.‘” Tahfs at 590-591, quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). A claim of conspiracy between private actors and state actors, “if adequately alleged,” will ordinarily be sufficient to establish that private parties acted under color of state law for purposes of defeating a motion to dismiss. Rudd at 512, quoting Revis v. Meldrum, 489 F.3d 273, 292 (6th Cir.2007). In order to survive a motion to dismiss, a plaintiff must allege the existence of a single plan, that every alleged coconspirator “shared in the general conspiratorial objective,” and that there was an overt act committed that furthered the conspiracy. Rudd at 517, quoting Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985).
{12} With respect to Mr. Cleavenger‘s allegation that B.O. testified falsely against him during his criminal trial, it is well established that individuals testifying in a judicial proceeding enjoy absolute immunity under Section 1983 in connection with their testimony, “even if the testimony constituted perjury (and even assuming the witness was acting under color of state law).” Doe v. Boland, 630 F.3d 491, 499 (6th Cir.2011), quoting Briscoe v. LaHue, 460 U.S. 325, 329-330 (1983). Mr. Cleavenger can prove no set of facts in connection with B.O.‘s trial testimony that could warrant relief under Section 1983 and, therefore, the trial court did not err by dismissing his Section 1983 claim to the extent that it was grounded in her trial testimony.
{13} With respect to Mr. Cleavenger‘s allegations related to statements made by B.O. to law enforcement before trial, his complaint appears to suggest conspiracy as the basis for asserting that B.O. was not a private actor. Nonetheless, the complaint does not “adequately allege” a claim of conspiracy sufficient to establish that B.O. was acting under color of state law. See Rudd at 512. His complaint maintained that B.O. acted “collectively and officially * * * as agents, servants, and witnesses thereto, to the County of Summit and/or the Summit County Prosecutors Office[,]” but he did not allege the existence of a single conspiracy; participation by each alleged conspirator in the identified, shared objective; and overt acts taken in furtherance of the conspiracy. See id. at 517. As such, Mr. Cleavenger can prove no set of facts that would warrant relief under Section 1983, and the trial court did not err by dismissing his Section 1983 claim to the extent that it was grounded in B.O.‘s pretrial statements.
Mr. Cleavenger‘s Common Law Claims
{14} Mr. Cleavenger also alleged claims against B.O. for intentional infliction of emotional distress, defamation, and slander and libel. The trial court dismissed his defamation claims based on the conclusion that B.O. was absolutely privileged in connection with statements made during a judicial proceeding. In the alternative, the trial court concluded that Mr. Cleavenger‘s claims for defamation, slander and libel, and intentional infliction of emotional distress were barred by the relevant statute of limitations.
{15} “A complaint may be dismissed under
{16} Ordinarily, claims for intentional infliction of emotional distress are subject to a four-year statute of limitations.
{17} Mr. Cleavenger filed his complaint on April 7, 2020. Therefore, to the extent that his claims for defamation, libel and slander, and intentional infliction of emotional distress arose from statements that he alleged to have been made to law enforcement more than one year before the complaint was filed, those claims are barred by the statute of limitations. In addition, because the complaint alleged that these statements were made more than one year before the COVID-19 public health emergency commenced, Mr. Cleavenger‘s appeal to the tolling provisions of Am.Sub.H.B. No. 197 are of no avail. See generally Chapman Ents., Inc. v. McClain, Slip Opinion No. 2021-Ohio-2386, ¶ 10-13.
{18} With respect to B.O.‘s trial testimony, which, according to the complaint, occurred on June 24, 2019, the motion to dismiss was properly granted for a different reason. As the Supreme Court of Ohio has explained:
It is a well-established rule that judges, counsel, parties, and witnesses are absolutely immune from civil suits for defamatory remarks made during and relevant to judicial proceedings. See Erie Cty. Farmers’ Ins. Co. v. Crecelius, 122 Ohio St. 210, 212-213 (1930); McChesney v. Firedoor Corp. of Am., 50 Ohio App.2d 49, 51 (9th Dist.1976). This immunity is based on the policy of protecting the integrity of the judicial process. The function of a judicial proceeding is to ascertain the truth. To achieve this noble goal, participants in judicial proceedings should be afforded every opportunity to make a full disclosure of all pertinent information within their knowledge. For a witness, this means he must be permitted to testify without fear of consequences. Freedom of speech in a judicial proceeding is essential to the ends of justice. 1 Harper & James, Law of Torts, Section 5.22, 423-426 (1956).
Willitzer v. McCloud, 6 Ohio St.3d 447, 448-449 (1983). The Supreme Court recently reiterated this principle, emphasizing that “[t]he litigation privilege provides absolute immunity to parties, witnesses, lawyers, and judges from future lawsuits for statements made during and relevant to judicial proceedings.”
{19} As the trial court concluded, B.O. enjoyed absolute privilege in connection with Mr. Cleavenger‘s claims for defamation and libel/slander. See Willitzer at 448-449. See generally Fisher, 2020-Ohio-1196, at ¶ 32, quoting Gosden, 116 Ohio App.3d at 206. As noted above, Mr. Cleavenger‘s claim for intentional infliction of emotional distress was based solely on the allegation that B.O. made defamatory statements against him. Accordingly, the trial court also did not err by concluding that B.O. enjoyed absolute privilege with respect to Mr. Cleavenger‘s claim for intentional infliction of emotional distress. See Ritter at ¶ 15.
{20} The trial court, therefore, did not err by granting B.O.‘s motion to dismiss Mr. Cleavenger‘s claims asserted under Section 1983 or his claims for defamation, libel/slander, and intentional infliction of emotional distress. Mr. Cleavenger‘s first and third assignments of error are overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION, COMMITTING PREJUDICIAL ERROR TO CLEAVENGER, IN NOT CONSIDERING CLEAVENGER‘S MOTIONS, ACTIONS, AND/OR THE TOTALITY OF THE CIRCUMSTANCES BEFORE DISMISSING THE CASE AGAINST [B.O. AND K.T.].
{21} In his second assignment of error, Mr. Cleavenger appears to argue that the trial court did not consider his opposition to the motion to dismiss and to reiterate some of his arguments that the trial court erred by granting B.O.‘s motion to dismiss. He also argues that the trial court erred by failing to rule on his motion for leave to file an amended complaint after the trial court dismissed his claims against B.O. The record does not demonstrate that the trial court failed to consider any of the documents that Mr. Cleavenger filed in opposition to the motion to dismiss, and, as demonstrated above, the trial court did not err by granting B.O.‘s motion to dismiss. This Court also cannot agree that the trial court erred with respect to the motion to amend the complaint.
{22} This Court must review an order that grants or denies leave to amend a pleading for an abuse of discretion. See State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610 (1996). An abuse of discretion is present when a trial court‘s decision “is contrary to law, unreasonable, not supported by evidence, or grossly unsound.” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.
{23}
A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion
under Civ.R. 12(B) , (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court shall freely give leave when justice so requires.
See also King v. Divoky, 9th Dist. Summit No. 29769, 2021-Ohio-1712, ¶ 38-39.
{24}
{25} B.O. moved to dismiss the complaint on July 29, 2020. Mr. Cleavenger moved for leave to amend the complaint on October 15, 2020, well after the expiration of the twenty-eight-day period provided by
{26} Mr. Cleavenger‘s second assignment of error is overruled.
THE TRIAL COURT ERRED TO THE PREJUDICE OF CLEAVENGER, AND ABUSED ITS DISCRETION, IN RELYING ON EVIDENCE OUTSIDE THE COMPLAINT, IN DISMISSING THE CASE AGAINST [K.T.].
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED [AND] ABUSED ITS DISCRETION, IN DISMISSING THE CASE AGAINST [K.T.], IN VIOLATION OF [THE] OHIO CONSTITUTION, ‘DUE COURSE OF LAW’ [AND] [THE UNITED STATES] CONSTITUTION ‘DUE PROCESS OF LAW’ PROVISIONS[.]
{27} Mr. Cleavenger‘s fourth and fifth assignments of error argue that the trial court erred by dismissing his claims against K.T. for failure to prosecute. In his fourth assignment of error, Mr. Cleavenger maintains that the trial court incorrectly considered matters outside the complaint. As with his first assignment of error, the record does not demonstrate that the trial court considered matters outside the pleadings. In his fifth assignment of error, Mr. Cleavenger argues that the trial court erred by determining that he had not perfected service upon K.T. This Court does not agree.
{28}
{29} The methods that must be used to obtain service of process upon a party are set forth in the Ohio Rules of Civil Procedure. Hubiak v. Ohio Family Practice Ctr., 9th Dist. Summit No. 26949, 2014-Ohio-3116, ¶ 10, citing
{30} Mr. Cleavenger filed instructions for service upon K.T. that did not specify service in accordance with
{31} On September 22, 2020, the trial court ordered Mr. Cleavenger to perfect service upon K.T. or show cause why service was not perfected and notified him that failure to do so would result in dismissal. Mr. Cleavenger responded on October 21, 2020, maintaining that service had been perfected on K.T. and that, in any event, K.T. surely had notice of the complaint because of his relationship with B.O., who had waived service and defended the action. It is clear from the docket, however, that despite repeated attempts to serve K.T. at one residential address and three business addresses, service was not perfected. Further, although Mr. Cleavenger filed a document and accompanying affidavit that purported to instruct the clerk to serve K.T. by publication, he failed to aver that he could not ascertain K.T.‘s residence with reasonable diligence, as required by
{32} Mr. Cleavenger‘s fourth and fifth assignments of error are overruled.
III.
{33} Mr. Cleavenger‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
TODD CLEAVENGER, pro se, Appellant.
LAWRENCE R. BACH, Attorney at Law, for Appellee.
K. T. pro se, Appellee.