{¶ 2} On February 25, 2005, appellant filed a civil complaint in the Franklin County Court of Common Pleas, purporting to allege claims of fraud against Mbah, a Franklin County Children Services ("FCCS") caseworker, and Grote, an FCCS intake worker. Appellant's claims arise from the removal of her minor son, M.M., from her custody on January 2, 2002, and the subsequent filing of a complaint in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, alleging that M.M. was an abused, neglected, and dependent child ("juvenile complaint").
{¶ 3} The juvenile complaint, signed by Grote, was filed on January 3, 2002, in case No. 02JU01-97, and lists appellees, in their capacities as FCCS caseworker and intake worker, as the complainants. In addition to allegations that M.M. was an abused child, as defined by R.C.
{¶ 4} The juvenile court initially granted temporary custody of M.M. to FCCS. However, on August 20, 2002, the juvenile court entered judgment, terminating FCCS's temporary custody of M.M., maintaining a wardship over M.M., and awarding legal custody of M.M. to his father.
{¶ 5} Appellant was arrested on June 13, 2002, and was indicted on charges of child endangering, abduction, and kidnapping. On November 12, 2003, a jury returned a verdict of not guilty on the abduction and kidnapping charges but could not reach a verdict on the child endangering charge. On March 22, 2004, the trial court, in appellant's criminal case, granted a Crim.R. 29 motion for acquittal on the charge of child endangering and entered judgment acquitting appellant of all indicted charges.
{¶ 6} In her civil complaint, appellant alleges that the allegations in the juvenile complaint were false and that appellees violated R.C.
* * * [C]aused [her] to [lose] her minor child [M.M.], monetary support from the Social Security benefits, their family dwelling, and subsidies from the Franklin County Public Housing Program, a decline in her health as a result of 5 ½ months incarceration, denial of her right to family obligation, and her moral standing in the community as a law abiding citizen.
{¶ 7} Appellees filed an answer to appellant's complaint on April 7, 2005, admitting:
* * * [T]hat law enforcement transported [M.M.] to Franklin County Children Services Intake Center on January 2, 2002 and that an investigation began at that time. Defendants further admit that an emergency court order was granted on January 3, 2002, that a temporary order of the court was granted on January 4, 2002, and that a temporary court commitment was eventually granted. Defendants further admit that Susan Mbah was the intake worker who handled the [M.M.] referral, that a NetCare assessment was performed, and that [M.M.'s] father was granted supervised visitation on April 2, 2002.
Appellees denied the remaining allegations in appellant's complaint for lack of sufficient knowledge and information. Appellees also asserted various affirmative defenses, including failure to state a claim upon which relief could be granted and immunity. On August 26, 2005, the trial court granted appellees leave to amend their answer to raise the statute of limitations as an additional affirmative defense.
{¶ 8} On November 28, 2005, appellees filed a motion for summary judgment, in response to which appellant filed a memorandum contra on December 27, 2005. Appellees argued that appellant's claims were barred by the two-year statute of limitations applicable to actions for damages against a political subdivision, as set forth in R.C.
{¶ 9} On March 30, 2006, the trial court partially granted appellees' motion for summary judgment. After noting the R.C.
{¶ 10} On May 4, 2006, the trial court granted appellees leave to file a second motion for summary judgment, which appellees filed on May 10, 2006. In their second motion for summary judgment, appellees argued that appellant's claim based on the failure to return M.M. was time-barred because FCCS's temporary custody of M.M. terminated on August 20, 2002, when the juvenile court awarded legal custody of M.M. to his father. In support of their motion, appellees submitted a certified copy of the juvenile court's judgment entry. Appellant filed a memorandum contra appellees' second motion for summary judgment on May 30, 2006. While appellant did not dispute that FCCS's temporary custody of M.M. terminated on August 20, 2002, she argued that the limitations period on her claims should have been tolled based on her continuing harm.
{¶ 11} On June 27, 2006, before the trial court ruled on appellees' second motion for summary judgment, appellant filed a motion for default judgment. Appellant argued that she was entitled to default judgment, pursuant to Civ.R. 55, based on appellees' failure to file a reply memorandum in support of their second motion for summary judgment.
{¶ 12} The trial court denied appellant's motion for default judgment and granted appellees' second motion for summary judgment on July 20, 2006. The trial court concluded that any conduct that might serve as the basis of a claim regarding FCCS's failure to return M.M. ceased no later than August 20, 2002, upon the termination of FCCS's temporary custody. The trial court also rejected appellant's tolling argument, stating that "the statute of limitations is not tolled by continued suffering, but only by continuing conduct." Accordingly, the trial court concluded that appellant's complaint was time-barred in its entirety and entered final judgment in favor of appellees.
{¶ 13} Appellant filed a timely notice of appeal and assigns the following as error:
The trial court erred by partially granting defendants' motion for summary judgment, granting final judgment for motion for summary judgment in favor of defendants, overlooking Pro Se Standard of Review and various genuine issues of material fact entered by Plaintiff throughout the Court Record, and denial of the Plaintiff's Motion for Default Judgment, when the record presents genuine issues of material fact that demand resolution by the trier of fact.
Appellant contends that the trial court erred by granting summary judgment in favor of appellees and by denying her motion for default judgment. Appellant also contends that the trial court erred by not applying a "Pro Se Standard of Review[.]" Before reviewing the propriety of the trial court's entry of summary judgment, we briefly address appellant's arguments concerning the standard of review and her motion for default judgment.
{¶ 14} At the outset, we reject appellant's contention that she was entitled to a different standard of review based on her status as a pro se litigant. In her appellate brief, appellant cites a litany of federal cases suggesting that, when considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, federal courts hold pro se complaints to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner (1972),
{¶ 15} This court has routinely rejected the notion that pro se litigants are entitled to lenient treatment with respect to procedural law and court rules. In Justice v. Lutheran Social Servs. of Cent.Ohio (Apr. 8, 1993), Franklin App. No. 92AP-1153, this court succinctly stated:
* * * While one has the right to represent himself or herself and one may proceed into litigation as a pro se litigant, the pro se litigant is to be treated the same as one trained in the law as far as the requirement to follow procedural law and the adherence to court rules. If the courts treat pro se litigants differently, the court begins to depart from its duty of impartiality and prejudices the handling of the case as it relates to other litigants represented by counsel.
See, also, McNeil v. United States (1993),
{¶ 16} We next turn to appellant's contention that the trial court erred in denying her motion for default judgment, premised on appellees' failure to file a reply memorandum in support of their second motion for summary judgment. Appellant's motion demonstrates a basic misunderstanding of the concept of default, which the Ohio Supreme Court has discussed at length:
* * * Default * * * is a clearly defined concept. A default judgment is a judgment entered against a defendant who has failed to timely plead in response to an affirmative pleading. McCabe v. Tom (1929),
. As stated by the court in Reese v. Proppe (1981), 35 Ohio App. 73 , 3 Ohio App.3d 103 105 , "[a] default by a defendant * * * arises only when the defendant has failed to contest the allegations raised in the complaint and it is thus proper to render a default judgment against the defendant as liability has been admitted or `confessed' by the omission of statements refuting the plaintiff's claims. * * *" It is only when the party against whom a claim is sought fails to contest the opposing party's allegations by either pleading or "otherwise defend[ing]" that a default arises. This rule * * * is logically consistent with the general rule of pleading contained in Civ.R. 8(D), which reads in part that "[a]verments in a pleading to which a responsive pleading is required * * * are admitted when not denied in the responsive pleading."
Ohio Valley Radiology Assoc, Inc. v. Ohio Valley Hosp. Assn. (1986),
{¶ 17} Finally, we turn to appellant's contention that the trial court erred by granting summary judgment in favor of appellees. Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular,Inc. (1994),
{¶ 18} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the non-moving party.Harless v. Willis Day Warehousing Co. (1978),
{¶ 19} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record * * * which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996),
{¶ 20} In their first motion for summary judgment, appellees argued that appellant's claims were time-barred by the two-year statute of limitations contained in R.C.
An action against a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by any act or omission in connection with a governmental or proprietary function * * * shall be brought within two years after the cause of action arose, or within any applicable shorter period of time for bringing the action provided by the Revised Code. * * *
The limitations period in R.C.
{¶ 21} To the extent that appellant brings state law claims against appellees, as employees of FCCS, her claims are subject to the two-year statute of limitations contained in R.C.
{¶ 22} R.C.
If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
Because the conflict between the statutes of limitations in R.C.
{¶ 23} To determine whether appellant's claims were time-barred when she filed her complaint in February 2005, we must establish when appellant's claims accrued. "A cause of action ordinarily accrues, and the limitations period begins to run, when the violation giving rise to liability occurs." Lane v. Grange Mut. Cos. (1989),
{¶ 24} First, appellant premises at least part of her claims on appellees' filing of the juvenile complaint on January 2, 2002, at which time appellant's claims, based on such conduct, would have accrued. Appellant filed her complaint on February 25, 2005. Because more than two years had elapsed after appellant's claims, based on the filing of the juvenile complaint, accrued, reasonable minds could only conclude that such claims were time-barred. Accordingly, the trial court did not err in granting summary judgment on appellant's state law claims based on appellees' filing of the juvenile complaint.
{¶ 25} Second, the trial court also found that appellant's complaint contained a claim based on appellees' failure to restore her custody of M.M. after the dismissal of the criminal charges against her. The trial court initially denied appellees' motion for summary judgment on such claim, stating that appellees failed to point to any evidence that the claim was time-barred. When appellees filed their second motion for summary judgment, they submitted a certified copy of a juvenile court judgment entry divesting FCCS of its temporary custody of M.M. and granting legal custody to M.M.'s father on August 20, 2002. Appellant did not dispute that FCCS's temporary custody of M.M. terminated in August 2002. Thus, any claim based on FCCS's failure to return custody to appellant would have accrued, at the latest, in August 2002, more than two years prior to appellant filing her complaint. Consequently, any claim based on such conduct was barred by the two-year statute of limitations contained in R.C.
{¶ 26} In an attempt to save her claims from the bar of the statute of limitations, appellant argued in her memorandum in opposition to appellees' second motion for summary judgment, and argues again on appeal, that the limitations period on her claims was tolled. Appellant specifically argues that the limitations period on her claims was statutorily tolled, pursuant to R.C.
{¶ 27} R.C.
When a person is imprisoned for the commission of any offense, the time of his imprisonment shall not be computed as any part of any period of limitation, as provided in section
2305.09 ,2305.10 ,2305.11 , or2305.14 of the Revised Code, within which any person must bring any action against the imprisoned person.
Appellant argues that the limitations period on her claims was tolled during the time she was incarcerated due to her criminal charges. We conclude, however, that, by its express terms, R.C.
{¶ 28} Appellant also argues that the time for bringing her action was tolled, pursuant to R.C.
Unless otherwise provided in sections1302.98 ,1304.35 , and2305.04 to2305.14 of the Revised Code, if a person entitled to bring any action mentioned in those sections, unless for penalty or forfeiture, is, at the time the cause of action accrues, * * * of unsound mind, the person may bring it within the respective times limited by those sections, after the disability is removed. * * *
After the cause of action accrues, if the person entitled to bring the action becomes of unsound mind and is adjudicated as such by a court of competent jurisdiction or is confined in an institution or hospital under a diagnosed condition or disease which renders the person of unsound mind, the time during which the person is of unsound mind and so adjudicated or so confined shall not be computed as any part of the period within which the action must be brought.
R.C.
{¶ 29} Where, like here, a defendant meets her initial burden on summary judgment of proving that the statute of limitations is a valid affirmative defense, the plaintiff "ha[s] a burden of proof regarding [her] claim that the tolling statute applied to render the statute of limitation's defense invalid." Heskett v. Roberts (Apr. 27, 1995), Franklin App. No. 94APE09-1411, citing Wright v. Univ. Hosp. ofCleveland (1989),
{¶ 30} Appellees contend that R.C.
{¶ 31} Appellant first argues that records filed in juvenile court and in the criminal case against her contain evidence that she was of unsound mind as a result of "preexisting mental illness conditions, including but not limited to dementia, debilitating major depression, memory loss, dyslexia, traumatic brain injury, bi-polar disorder and post traumatic stress disorder[.]" The only records from the juvenile case or appellant's criminal case included in the record here are the juvenile complaint, the certified judgment entry from juvenile court awarding legal custody of M.M. to his father, and the trial court's final judgment entry in the criminal case. Despite appellant's assertions, no records from either the juvenile or criminal cases, containing evidence relating to appellant's mental soundness, were filed in this action. Accordingly, the trial court could not consider any such alleged evidence when ruling on appellees' motions for summary judgment, and this court may not consider any such alleged evidence on appeal. SeeState v. Ishmail (1978),
{¶ 32} In addition to her vague references to documents in other cases, appellant also identifies certain documents in the record below in support of her R.C.
{¶ 33} Among the documents attached to appellant's affidavit of indigency is a document from the Franklin County Department of Job and Family Services, dated October 20, 2004, notifying appellant of the termination of her food stamps and Medicaid, based on her failure to provide required documentation of eligibility. An undated document, on letterhead of Southeast, Inc. Recovery and Mental Health Care Services ("Southeast"), states that appellant has no income. The next document is appellant's application for the Central Ohio Transit Authority reduced fare program, dated September 29, 2004. A Southeast case manager completed a portion of the application form to be completed by a licensed medical professional and checked a box indicating that the nature of appellant's disability is physical and explaining that her disability consisted of brain, spine and hip injury, and diabetes. The case manager did not check the pre-printed box to indicate that appellant had a psychological disability. The final document attached to appellant's affidavit of indigency is a Supplemental Security Income Notice from the Department of Health and Human Services, Social Security Administration, dated October 23, 2003, denying appellant's claim for Supplemental Security Income payments. Additionally, appellant submitted, as an attachment to her memorandum contra appellees' second motion for summary judgment, a copy of a Brain Injury Association of Ohio membership card, which states that appellant sustained, suffered, and survived a brain injury.
{¶ 34} To the extent that appellant relies on the first paragraph of R.C.
{¶ 35} We likewise conclude that appellant failed to demonstrate an issue of fact regarding her entitlement to tolling under the second paragraph of R.C.
* * * [O]nly when the claimant presents evidence substantiating he or she was of unsound mind and the disease or condition (1) was determined by a psychiatrist or licensed physician who treated the claimant during his confinement to have rendered him of unsound mind, or (2) is generally accepted by the medical community as one causing unsound mind.
Fisher at syllabus. None of the documents attached to either appellant's affidavit of indigency or memorandum contra appellees' second motion for summary judgment reveal that appellant was institutionally confined under a diagnosed condition or disease that rendered her of unsound mind.
{¶ 36} Appellant's own conclusory allegations that she was of unsound mind at an unspecified time during the limitations period are insufficient to overcome appellees' No. 06AP-829 19 motion for summary judgment. Kotyk v. Rebovich (1993),
{¶ 37} In addition to arguing that appellant's state law claims were time-barred under R.C.
{¶ 38} For statute of limitations purposes, Section 1983 claims are characterized as personal injury actions. Owens v. Okure (1989),
{¶ 39} In support of their argument that a two-year statute of limitations applies to Section 1983 claims arising in Ohio, appellees rely on Browning v. Pendleton (C.A.6, 1989),
{¶ 40} While appellees correctly state the Sixth Circuit's holding inBrowning, this court has repeatedly refused to follow Browning, concluding that the Sixth Circuit was incorrect in its determination that former R.C.
* * * [Although the question of how to characterize section 1983 claims for statute of limitation purposes, and the question of whether Ohio's general or residual statute of limitations should be applied to section 1983 claims are questions of federal law, the question of which Ohio statute of limitations constitutes the state's general or residual statute of limitations is a question of state law. * * *
There, we acknowledged a split among the Ohio appellate districts as to which statute represents Ohio's general or residual statute of limitations for personal injury actions. After reviewing the positions of the Sixth Circuit and various Ohio appellate districts, as well as the statutory language of Ohio's statutes of limitations for personal injury actions, this court concluded, contrary to the holding inBrowning, that the four-year statute of limitations contained in R.C.
{¶ 41} In its decision and entry granting appellees' first motion for summary judgment, the trial court stated, without citation to any legal authority, that "Section 1983 actions are also subject to a two-year statute of limitations." This conclusion is contrary to our holding inProhazka and constitutes error. Rather, as stated in Prohazka, Section 1983 claims arising in Ohio are subject to a four-year limitations period set forth in R.C.
{¶ 42} Appellees did not argue before the trial court that appellant's complaint failed to state Section 1983 claims, and, in fact, at oral argument before this court, appellees' counsel conceded that appellant's complaint did allege Section 1983 claims. Additionally, appellees did not argue before the trial court that appellant could present no evidence to prove her Section 1983 claims, relying instead on their statute of limitations argument. Consequently, we express no opinion on the merits of appellant's Section 1983 claims, which the trial court has not yet considered.
{¶ 43} Appellees' final argument to the trial court in support of their motion for summary judgment was that they were immune from liability. Appellees first argued that they were entitled to immunity, pursuant to R.C.
{¶ 44} Appellees also argue that they are entitled to qualified immunity. Under the doctrine of qualified immunity:
* * * [Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. * * *
Harlow v. Fitzgerald (1982),
"Defendants bear the initial burden of coming forward with facts to suggest that they were acting within the scope of their discretionary authority during the incident in question. * * * Thereafter, the burden shifts to the plaintiff to establish that the defendants' conduct violated a right so clearly established that any official in defendants' positions would have clearly understood that they were under an affirmative duty to refrain from such conduct."
Gratsch v. Hamilton Cty. (C.A.6, 2001),
{¶ 45} The trial court determined that the record contained insufficient evidence for the court to evaluate appellees' claims of immunity. We agree. Although appellees argued that, as employees of FCCS, their filing of the juvenile complaint was a discretionary act within the scope of their employment, appellees offered no evidence in support of that argument. Appellees attached to their first motion for summary judgment an uncertified copy of the juvenile complaint, a document entitled "Client Record of Activity," and a document entitled "Arrest Information," none of which demonstrates that appellees' acts, as set forth in appellant's complaint, were discretionary acts or within the scope of their employment by FCCS.5 Because appellees failed to meet their initial burden of coming forward with facts to suggest that they were entitled to qualified immunity, the burden did not shift to appellant to refute appellees' entitlement to qualified immunity. Accordingly, appellees were not entitled to summary judgment on the basis of qualified immunity. Of course, we express no opinion on whether appellees will ultimately prevail on their claim of qualified immunity on remand to the trial court.
{¶ 46} In conclusion, we find that the trial court properly granted summary judgment in favor of appellees on appellant's state law claims, as such claims are barred by the two-year statute of limitations set forth in R.C.
Judgment affirmed in part, reversed in part, and cause remanded.
BROWN and McGRATH, JJ., concur.
Notes
"If it appears at the hearing of a child that any person has abused or has aided, induced, caused, encouraged, or contributed to the dependency, neglect, or delinquency of a child or acted in a way tending to cause delinquency in such child, or that a person charged with the care, support, education, or maintenance of any child has failed to support or sufficiently contribute toward the support, education, and maintenance of such child, the juvenile judge may order a complaint filed against such person and proceed to hear and dispose of the case as provided in sections
"On the request of the judge, the prosecuting attorney shall prosecute all adults charged with violating such sections."