JOHN PAUL GOMEZ, et al., v. NOBLE COUNTY CHILDREN SERVICES, et al.
CASE NO. 09 NO 361
STATE OF OHIO, NOBLE COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 31, 2010
2010-Ohio-1538
Hon. Mary DeGenaro, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite
JUDGMENT: Affirmed in Part, Reversed in Part and Remanded.
APPEARANCES:
For Plaintiffs-Appellants: John Paul Gomez, Pro-se, 318 Moon Clinton Road, Unit A-10, Moon Township, OH 15105
For Defendants-Appellees: Attorney Randall Lambert, 215 South Fourth Street, Ironton, OH 45638
{1} This timely appeal comes for consideration upon the record in the trial court and the parties’ briefs. Pro-se Appellants, John Paul Gomez, with his children, N.G. and E.G., appeal the March 23, 2009 decision of the Noble County Court of Common Pleas which dismissed Gomez‘s complaint pursuant to the
{2} Gomez argues on appeal that the trial court erroneously dismissed his complaint because Gomez adequately pleaded failure to report child abuse and the commission of malicious, reckless or wanton acts during the investigation of Gomez‘s child abuse allegation under
{3} Gomez‘s claims against the government entities, as well as his claims pursuant to
Facts and Procedural History
{4} On January 25, 2008, Gomez filed a complaint naming Noble County Children‘s Services, its employees Donna Boyd and Kelly Clark, and Noble County Commissioners, John Carter, Charles Cowgill, and Virgil Thompson all as defendants. Gomez‘s original complaint states that Appellees failed to report his daughter as an abused child, and failed to perform their duties as mandated by law.
{5} According to the complaint, Gomez requested a civil protection order on June 26, 2006 against Timothy Dyer, the boyfriend of the mother of Gomez‘s children,
{6} According to the docket, none of the Appellees filed an answer to Gomez‘s complaint. On March 7, 2008, Appellees filed a
{7} Gomez sought to have Judge Nau disqualified from his case. Gomez filed an affidavit of disqualification with the Ohio Supreme Court, which Chief Justice Moyer denied on February 8, 2008. However, Judge Nau voluntarily recused himself from the case on March 13, 2008.
{8} On May 12, 2008 the trial court held a hearing on Appellees’ motion to dismiss. The parties conceded that Children Services was performing a governmental function. Gomez conceded that his complaint did not specifically address any of the employees of the Noble County Commissioners that were individually named in his complaint. The trial court orally granted leave for Gomez to amend his complaint.
{9} On May 13, 2008, Gomez filed a motion requesting that the trial court issue findings of fact and conclusions of law at the point when it would enter judgment on the motion to dismiss. On May 16, 2008, the trial court ordered both parties to submit proposed findings of fact and conclusions of law. Neither party did so at any point in the proceedings below.
{10} Gomez filed an amended complaint on May 27, 2008, adding Noble County, Mindy Harding and Kristine Shoeppner, employees of Children Services, as additional defendants. Gomez also alleged that the Defendants acted in a malicious, reckless or wanton manner during the performance of their statutory duty to investigate reports of
{11} On February 25, 2009, the trial court held another hearing on Gomez‘s amended complaint and Children Services‘s motion to dismiss. Counsel presented legal arguments on behalf of Appellees, and Gomez argued pro-se. No sworn testimony was presented regarding the facts of Gomez‘s claims.
{12} On March 23, 2009, the trial court filed a judgment entry granting Appellees’ motion, dismissing all outstanding motions by Gomez, and dismissing Gomez‘s complaint. The trial court found that none of the exceptions to government subdivision immunity from tort liability applied in this case, and concluded that all of the government subdivisions and employees identified in Gomez‘s amended complaint were immune from liability. The trial court specifically noted that “this action is a result of a claim of child abuse which was investigated by the proper authorities to whom it was directed. Those authorities, in their discretion, determined that the child abuse complaint was unsubstantiated and took no action. This court can find no reason to believe that the employees of Noble County acted outside the scope of their authority or to find any other reason to impose liability upon them.” Though the trial court did not address the merits of Gomez‘s
{13} On April 13, 2009, Gomez filed his notice of appeal and a motion for stay of execution. On April 29, 2009, this court denied Gomez‘s motion to stay.
Civ.R. 12(B)(6) Dismissal
{14} In his sole assignment of error, Gomez asserts:
{15} “The trial court erred by failing to construe the factual allegations set forth in plaintiff‘s complaint as true, and failed to draw all reasonable inferences in light most
{16} Gomez contends that he set forth a cause of action upon which relief could be granted pursuant to
{17} Dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate if, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in favor of the nonmoving party, it appears beyond doubt that the nonmoving party can prove no set of facts entitling him to the requested relief. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, at ¶ 13. A
{18} As an initial matter, although the lion‘s share of the debate in this appeal is focused on immunity from liability under the Political Subdivision Tort Liability Act, we must first determine whether Gomez has adequately pleaded a tortious act from which the various Appellees may be found liable or immune. This becomes difficult as Gomez, a pro se litigant, makes many incorrect statements of law. However, Ohio is a notice pleading state, and a plaintiff‘s claim is only required to set forth the operative facts that give fair notice to the defendant of the nature of the action.
{19} Gomez has included in his pleadings an assertion that the Appellees had various duties pursuant to
{20} Gomez raised several issues in his amended complaint, all of which must be reviewed for their sufficiency: (1) Whether any applicable party could be liable under
Section 1983
{21} First, an action under
{22} “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ***, subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress * * *.”
{23} Federal courts do not have exclusive jurisdiction to remedy this deprivation. Will v. Michigan Dept. of State Police (1989), 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45. Therefore, it is possible for Gomez to raise such a claim in the court below. To survive a
{24} Gomez‘s complaint asserts that Harding of Children Services asked Gomez to complete a psychological evaluation, and that Judge Nau limited Gomez‘s visitation rights to his children so that he was only able to have supervised visits for a temporary period. Gomez stated in his complaint that these actions violated his and his children‘s Fourth and Fourteenth Amendment rights.
{25} The Fourth Amendment, which protects individuals from unreasonable searches and seizures, does not have any applicability to Gomez‘s claim. Gomez is probably asserting a violation of his fundamental right to the care, custody and management of his children under the Fourteenth Amendment. Troxel v. Granville (2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49; Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.
{26} Gomez‘s complaint does not indicate what misfeasance Harding carried out apart from asking Gomez to take a psychological test. The making of such a request does not constitute a deprivation of Gomez‘s fundamental right to the custody and care of
{27} Gomez pleaded no set of facts indicating that any of the Appellees had deprived Gomez of a fundamental federal right, thus a
R.C. 2151.421(A)
{28} Second, Gomez‘s complaint alleges that Children Services and its employees were liable for failure to report the abuse of Gomez‘s child. Gomez appears to be arguing that Children Services was obligated to report Gomez‘s report to the police.
{29} Pursuant to
{30} Before entering an analysis of the Political Subdivision Tort Liability Act, we note that it is well established that a “children services agency and its employees, upon receipt of a case referral, do not have a duty under
{31} Gomez‘s argument regarding the reporting aspect of
Governmental Actors and R.C. 2151.421(F) and R.C. 2744.02(B)(5)
{32} Third, Gomez‘s complaint alleges that Children Services was liable for failure to investigate the abuse of Gomez‘s child. Gomez‘s complaint and arguments before the trial court seem to concede that the governmental actors fulfilled their initial duty of responding to the report of child abuse. However, Gomez contended that the governmental actors blatantly failed to adequately conduct the investigation, to the extent that they did not perform their statutory duties. For clarity of analysis, the duties and liability of the government subdivisions will be addressed separately from those of the individual employees.
{33} The applicable section of
{34} “[T]he public children services agency shall investigate, within twenty-four hours, each report of child abuse or child neglect that is known or reasonably suspected or believed to have occurred *** that is referred to it under this section to determine the circumstances surrounding the injuries, abuse, or neglect or the threat of injury, abuse, or neglect, the cause of the injuries, abuse, neglect, or threat, and the person or persons responsible. *** The public children services agency shall submit a report of its investigation, in writing, to the law enforcement agency.”
{35} In order to determine an exception to the immunity from liability of Children Services pursuant to the Political Subdivision Tort Liability Act, a three-tiered analysis of
{36} “The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. *** However, that immunity is not absolute. * * *”
{37} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
{38} “If any of the exceptions to immunity in
{39} Gomez has conceded that Children Services is a political subdivision and is thus generally immune from liability. As for the second tier of the analysis, the only exception that potentially applies to Children Services in this case is
{40} Because none of the exceptions pursuant to
{41} Gomez‘s complaint did not establish that any of the exceptions to political subdivision immunity, enumerated in
Employee Actors and R.C. 2151.421(F) and R.C. 2744.03(A)(6)
{42} Fourth, Gomez‘s complaint alleges that certain individual employees of Children Services were not immune from liability for failure to investigate a report of child abuse, pursuant to
{43} The three-tiered analysis of the Political Subdivision Tort Liability Act for a political subdivision does not apply in the determination of whether an individual employee of a political subdivision could be liable for harm caused to Gomez‘s children. Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, at ¶ 17. Instead, an employee of a political subdivision is generally immune from liability, unless:
{44} “(a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s employment or official responsibilities;
{45} “(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
{46} “(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code.”
{47} Gomez‘s complaint contends that all three of these exceptions apply to the employees responsible for investigating his report of child abuse. The primary contention within Gomez‘s complaint is that his children continue to be abused because various employees breached their duties pursuant to
{48} As for employee liability pursuant to an express statutory imposition of liability, the Ohio Supreme Court‘s holding that “[within the meaning of
{49} As for employee liability pursuant to an act or omission outside the scope of employment, the only specific reference to
{50} As for employee liability pursuant to an act or omission with malicious purpose, in bad faith, or in a wanton or reckless manner, the Ohio Supreme Court has noted that it is possible to bring a claim against an individual employee for reckless failure to perform her duties under
{51} In O‘Toole, the Ohio Supreme Court addressed, among other issues, whether an employee of a public children services agency was entitled to immunity in the case of a child who died from abuse after having been reported to the agency. The opinion specifically examined whether an employee of the agency could be held liable for
{52} “Distilled to its essence, and in the context of
{53} “Recklessness, therefore, necessarily requires something more than mere negligence. *** In fact, ‘the actor must be conscious that his conduct will in all probability result in injury.’ ***”
{54} “Although the determination of recklessness is typically within the province of the jury, the standard for showing recklessness is high, so summary judgment can be appropriate in those instances where the individual‘s conduct does not demonstrate a disposition to perversity.”
{55} Id. at ¶ 73-75 (internal citations omitted).
{56} O‘Toole concluded that the facts alleged by the complainant regarding the employee‘s recklessness were not sufficient to withstand a motion for summary judgment. Id. at ¶ 92. Although the claims in O‘Toole were not supportable in the context of summary judgment, the Ohio Supreme Court‘s analysis indicates that the recklessness claim was, at a minimum, theoretically possible under the law. Thus, a tort action which includes a claim that a political subdivision employee engaged in reckless conduct during his investigation of the child abuse report is a claim upon which relief could be granted.
{57} The discussion in O‘Toole indicates that even if an investigation is being or has been conducted, if an employee breaches his duties pursuant to
{58} Here, we must examine the same issue as that in O‘Toole within the context of
{59} Appellees argue that Gomez‘s allegations of recklessness constitute an unsupported conclusion and are mere “magic words” which do not constitute a valid claim. However, Gomez‘s complaint claims that Children Services employee Kelly Clark witnessed the child‘s injuries and heard the child‘s explicit reports that the step-father beat her with a belt. Gomez‘s complaint alleges that Clark then intentionally created a fabricated story, stating that the child claimed that a caseworker injured her, all for the purpose of undermining the child‘s credibility. The complaint also claims that Clark and other Children Services workers sent a letter intimidating Gomez for having reported the child abuse. Gomez alleged in his complaint that his children are still subject to physical abuse as a result of the employees’ reckless failure. Thus the facts contained within Gomez‘s complaint put the defendants on notice of his claims that the Children Services employees had duties pursuant to
{61} Given the foregoing, a claim for a government employee‘s reckless failure to adequately investigate a report of child abuse is legally feasible. The trial court‘s dismissal was erroneous for this portion of Gomez‘s complaint.
Conclusion
{62} Gomez‘s sole assignment of error is partially meritorious. This conclusion should not be construed to imply any opinion regarding the strength or weakness of Gomez‘s case beyond the very limited context of a
{63} Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Vukovich, P.J., concurs.
Waite, J., concurring in part and dissenting in part with concurring in part and dissenting in part opinion.
Waite, J., concurring in part; dissenting in part:
Because I do not read Appellants’ amended complaint as stating a claim for negligence, I would affirm the trial court‘s dismissal of Appellants’
While it is true that pro se complaints are to be liberally construed, in Gomez v. Dyer, 7th Dist. No. 07 NO 342, 2008-Ohio-1523, we stated that, “[p]ro se civil litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors.” Id. at ¶ 46, citing State v. Gordon, 10th Dist. No. 03AP-490, 2003-Ohio-6558, ¶ 14.
Here, the majority goes to some lengths to fashion a negligence claim from Appellants’ allegations in the amended complaint. As I read the amended complaint, Appellants rely exclusively upon an alleged violation of
In determining whether statutes create a private cause of action for enforcement, the Ohio Supreme Court has held that a “statutory policy” may not be implemented by the Ohio courts in a private civil action absent a clear implication that such a remedy was intended by the Ohio General Assembly. Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 249, 348 N.E.2d 144, 147. Ohio courts apply a three-part test adopted from Cort v. Ash (1975), 422 U.S. 66, 95 S.Ct. 2080, to determine when a private cause of
Accordingly, in addition to affirming the trial court‘s decision in all other respects, I would affirm the trial court‘s dismissal of Appellants’