Charles Robol, Plaintiff-Appellant, v. City of Columbus et al., Defendants-Appellees.
No. 24AP-348
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 20, 2025
2025-Ohio-973
(C.P.C. No. 22CV-7497) (REGULAR CALENDAR)
DECISION
Rendered on March 20, 2025
On brief: Charles Robol, pro se. Argued: Charles Robol.
On brief: Zach Klein, City Attorney, and Sarah Feldkamp, for appellees. Argued: Dexter W. Dorsey.
PER CURIAM.
{¶ 1} Plaintiff-appellant, Charles Robol, pro se, appeals from a decision and entry of the Franklin County Court of Common Pleas granting the motion for judgment on the pleadings and motion for summary judgment of defendants-appellees, City of Columbus ( “City” ), Columbus Public Health, Columbus Division of Police, Angie Blevins, Michael Fielding, Andrew Ginther, Emmanuel Remy, Shannon Hardin, and Mysheika Roberts. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On October 26, 2022, Mr. Robol filed a complaint against appellees related to appellees’ implementation and enforcement of COVID-19 policies and protocols. He then filed an amended complaint on February 1, 2023.
{¶ 3} In his amended complaint, Mr. Robol separates his allegations into four distinct “Event Groups” categorized by the timeframe and subject matter of the alleged conduct. “Event Group 1” relates to four Columbus City Council meetings from July 27 to October 5, 2020. During the four meetings in Event Group 1, Mr. Robol alleges Columbus City Councilmembers Mr. Hardin and Mr. Remy removed their face masks on occasion while Mr. Robol was required to keep his face mask on for the duration of the meetings. Mr. Robol seeks damages for the discomfort and reputational harm associated with his own wearing of a face mask, as well as compensation for possible risk to his life from potential COVID-19 exposure from the City Councilmembers’ non-compliance with mask-wearing requirements. Under Event Group 1, Mr. Robol asserts claims for (1) negligence, (2) assault, (3) battery, (4) reputational damage from defamation, (5) trespass to chattels, (6) violation of the Takings Clause, (7) intentional infliction of emotional distress, (8) violation of his right to the free exercise of religion under
{¶ 4} “Event Group 2” relates to an incident at the Columbus Public Health building on October 26, 2020. According to his amended complaint, Mr. Robol sought to discuss the alleged non-compliance with mask wearing he witnessed at City Council meetings with Mr. Fielding, an assistant health commissioner with Columbus Public Health. The situation escalated, and Mr. Robol was escorted from the building by police. Under Event Group 2, Mr. Robol asserts claims for (1) assault, (2) battery, (3) false imprisonment, (4) trespass to
{¶ 5} “Event Group 3” occurred on July 26, 2021, when Mr. Robol attempted to enter a Columbus City Council meeting. Mr. Robol alleges he was detained by security guards and barred from attending the meeting. For this event group, Mr. Robol raises similar claims as those he raised under Event Group 2, including (1) assault, (2) battery, (3) false imprisonment, (4) trespass to chattels, (5) violation of the Takings Clause, (6) violation of his right to the free exercise of religion under
{¶ 6} “Event Group 4” occurred on December 8, 2021 and in the months immediately preceding that date. Mr. Robol alleges he attempted to register for press events conducted by Mr. Hardin but was denied access. Mr. Robol alleges that, on December 8, 2021, he attempted to join the press pool at a press event hosted by Mr. Ginther, the Mayor of Columbus, but was physically separated from other members of the press and barred from asking any questions. Mr. Robol‘s claims related to this event group include claims for (1) assault, (2) battery, (3) trespass to chattels, (4) violation of the Takings Clause, (5) violation of his right to the free exercise of religion under
{¶ 7} Mr. Robol seeks compensatory damages, lost income, pain and suffering, and other alleged damages totaling over $13 billion. He also requests injunctive relief, a letter of apology from Mr. Ginther and Mr. Hardin, costs, and reasonable attorney fees.1
{¶ 8} After filing an answer to the amended complaint, on January 22, 2024, appellees filed a combined motion for judgment as a matter of law and motion for summary judgment. Appellees argued the claims related to Event Group 1 were time-barred by the applicable statute of limitations. Appellees additionally argued, in the alternative, that all claims under Event Group 1 related to the exercise of a governmental function such that political subdivision immunity applies. Further, appellees argued Ms. Blevins, Mr. Fielding, Mr. Ginther, Mr. Remy, Mr. Hardin, and Ms. Roberts are entitled to immunity because they were acting within the scope of their employment and did not act in a wanton or willful manner. Appellees also argued Mr. Robol‘s complaint failed to meet notice pleading standards, and Mr. Robol lacked standing related to Event Group 1 for failure to allege any actual injury. To the extent any of Mr. Robol‘s claims would survive a motion for judgment on the pleadings, appellees argued his allegations did not present any genuine
{¶ 9} Mr. Robol filed a motion to compel discovery on February 4, 2024, alleging appellees were not cooperating with his discovery requests. Appellees then moved for a protection order based on Mr. Robol‘s discovery demands. Subsequently, on February 23, 2024, Mr. Robol filed a memorandum in opposition to appellees’ motion for summary judgment. Mr. Robol argued there remained genuine issues of material fact and appellees failed to cooperate with discovery requests.
{¶ 10} In a May 6, 2024 decision and entry, the trial court granted appellees’ motion for summary judgment. The court found Mr. Robol lacked standing to bring the claims related to Event Group 1 and those claims were time-barred by the applicable statute of limitations. With respect to the second, third, and fourth event groups, the court found appellees were entitled to summary judgment, specifically finding the City of Columbus is immune from liability on the intentional tort claims, the City is entitled to judgment as a matter of law on Mr. Robol‘s claims under
II. Assignments of Error
{¶ 11} Mr. Robol raises the following six assignments of error for our review:
- not analyzing discriminatory religious class based animus.
- ignoring Appellant‘s actual claims for deprivation of rights.
- not allowing discovery which prevented Appellant‘s own summary motions and establish his claims.
- finding claims lacked standing for event group 1.
- finding claims barred by the statute of limitations.
- finding political subdivision and individual immunity.
(Sic passim.) For ease of discussion, we address Mr. Robol‘s assignments of error out of order.
III. Standard of Review and Applicable Law
{¶ 12} An appellate court reviews a trial court‘s grant of summary judgment under a de novo standard. Estate of Sample v. Xenos Christian Fellowship, Inc., 2021-Ohio-3898, ¶ 9 (10th Dist.). “[D]e novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court‘s decision.” (Internal quotations and citations omitted.) Holt v. State, 2010-Ohio-6529, ¶ 9 (10th Dist.). Summary judgment is appropriate only when the moving party demonstrates (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made,
{¶ 13} Pursuant to
IV. Fifth Assignment of Error – Statute of Limitations
{¶ 14} In his fifth assignment of error, Mr. Robol argues the trial court erred in finding the applicable statute of limitations operates to bar his claims related to Event Group 1.
{¶ 15}
{¶ 16} Additionally, a claim brought under a federal law that does not provide its own statute of limitations is subject to the applicable general or residual statute of limitations governing personal injury actions in the state. Nadra v. Mbah, 2008-Ohio-3918, ¶ 1, citing Owens v. Okure, 488 U.S. 235 (1989); Dotson v. Lane, 360 Fed. Appx. 617, 619, fn. 2 (6th Cir. 2010), citing Goodman v. Lukens Steel Co., 482 U.S. 656, 660-61 (1987).
{¶ 17} For purposes of the statute of limitations, an action accrues at the time of the commission of the wrongful act. Qualls v. Peregrine Health Servs., 2022-Ohio-4644, ¶ 15 (10th Dist.), citing Harris v. Liston, 86 Ohio St.3d 203, 205 (1999). The events relating to Mr. Robol‘s claims under Event Group 1 occurred between July
{¶ 18} Mr. Robol acknowledges the two-year statute of limitations in
{¶ 19} Here, Mr. Robol does not demonstrate either that he diligently pursued his rights or that an extraordinary circumstance stood in his way preventing the timely filing. Instead, Mr. Robol admits he delayed filing his complaint to avoid what he perceives as potential political implications if he were to timely file his complaint, stating he did not want his complaint to be viewed as attempting to influence any upcoming elections. He further argues equitable tolling should apply because of the nature of his claims, asserting the issues he presents deserve the court‘s attention. Despite his personal conviction in both the merits of his claims and his perception of potential political implications of a timely filing, we do not find Mr. Robol‘s voluntary decision to delay the filing of his complaint constitutes the type of exceptional circumstances warranting application of the doctrine of equitable tolling. Roach at 8.
{¶ 20} Because the doctrine of equitable tolling does not apply to the instant matter, we agree with the trial court that the two-year statute of limitations in
V. Fourth Assignment of Error – Standing
{¶ 21} In his fourth assignment of error, Mr. Robol argues the trial court erred in concluding he lacked standing to bring the claims related to Event Group 1 because he failed to allege an actual injury. Having already concluded the court did not err in determining the statute of limitations operates to bar the claims related to Event Group 1, Mr. Robol‘s fourth assignment of error regarding lack of standing
VI. Sixth Assignment of Error –Immunity
{¶ 22} In his sixth assignment of error, Mr. Robol argues the trial court erred in determining appellees were entitled to immunity under
{¶ 23} We are mindful that, under the second, third, and fourth event groups, Mr. Robol asserts claims under both state and federal law. Our analysis under this assignment of error relates only to appellees’ claim of immunity for the state law tort claims and is not related to Mr. Robol‘s federal law claims under
A. The City‘s Immunity
{¶ 24}
{¶
{¶ 26}
(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
(b) A function that is for the common good of all citizens of the state;
(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function.
{¶ 27} Mr. Robol asserted tort claims against the City for assault, battery, false imprisonment, trespass to chattels, and interference with prospective economic advantage, all related to the City‘s enactment and enforcement of policies and procedures related to the COVID-19 pandemic. Though Mr. Robol argues his claims do not involve a governmental function under
{¶ 28} Under the second tier of the immunity analysis, the burden on a motion for summary judgment shifts to the plaintiff to demonstrate that a genuine issue of material fact exists regarding the applicability of a statutory exception to immunity. Koeppen at ¶ 13, citing Ohio Bell Tel., 2009-Ohio-5126 at ¶ 10. Here, Mr. Robol does not argue that one of the statutory exceptions to immunity contained in
B. Individual Immunity
{¶ 29} Mr. Robol additionally argues under this assignment of error that the trial court erred in determining Mr. Hardin, Mr. Remy, Mr. Ginther, Ms. Roberts, and Mr. Fielding were entitled to immunity on his intentional tort claims of assault, battery, false imprisonment, trespass to chattels, and interference with prospective economic advantage.
{¶ 30} A determination of whether an employee of a political subdivision is entitled to immunity involves a different analysis than the three-tiered analysis used for a political subdivision. Lambert v. Clancy, 2010-Ohio-1483, ¶ 10.
{¶ 31} “Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” Anderson v. Massillon, 2012-Ohio-5711, ¶ 33. “Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligence conduct.” Id. at ¶ 34.
{¶ 32} Mr. Robol asserts the individual appellees at a minimum acted recklessly when they removed him from the Columbus Public Health building, denied him entry to a Columbus City Council meeting, denied him a press pass, and refused to allow him to ask questions at a press event. However, the non-moving party cannot survive a motion for summary judgment with unsupported assertions and conclusions. Aurora Bank FSB v. Stevens, 2014-Ohio-1713, ¶ 8, 11 (10th Dist.) (the non-moving party on a motion for summary judgment “may not rest upon the mere allegations or denials of the pleadings” but must “set forth specific facts showing that there is a genuine issue for trial” ), citing Todd Dev. Co. v. Morgan, 2008-Ohio-87, ¶ 11, citing
{¶ 33} We also note that, to the extent Mr. Robol argues Mr. Hardin and Mr. Remy acted recklessly when they removed their face masks during portions of City Council meetings, we have already determined Mr. Robol‘s individual claims against Mr. Hardin and Mr. Remy related to Event Group 1 are time-barred under the applicable statute of limitations.
{¶ 34} Because the City and the individual appellees are entitled to immunity on Mr. Robol‘s claims of assault, battery, false imprisonment, trespass to chattels, and interference with prospective economic advantage, the trial court did not err in granting appellees’ motion for summary judgment on those claims. Accordingly, we overrule Mr. Robol‘s sixth assignment of error.
VII. First Assignment of Error – Religious Freedom
{¶ 35} In his first assignment of error, Mr. Robol argues the trial court erred in granting appellees’ motion for summary judgment on his claims under
A. 42 U.S.C. 1983 and the Free Exercise Clause
{¶ 36}
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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[.]
To prevail on a claim under Section 1983, a plaintiff must demonstrate (1) the conduct was committed by a person acting under color of state law, and (2) the conduct deprived the plaintiff of a federal statutory or constitutional right. Boddie v. Landers, 2016-Ohio-1410, ¶ 18 (10th Dist.), quoting Miller v. Leesburg, 1998 Ohio App. LEXIS 5645, *19 (10th Dist. Dec. 1, 1998), citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986). (Further quotations and citations omitted.)
{¶ 37} The First Amendment to the United States Constitution protects a person‘s ability to freely exercise their religion. Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 2013-Ohio-5000, ¶ 86;
{¶ 38} A plaintiff may prove a free exercise violation “by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’ ” Kennedy v. Bremerton School Dist., 597 U.S. 507, 525 (2022), quoting Emp. Div. v. Smith, 494 U.S. 872, 879-81 (1990). Thus, a government policy will survive First Amendment scrutiny if it is generally applicable and neutral toward religion. Id., citing Lukumi at 546.
{¶ 39} Mr. Robol asserts the City infringed upon his right to the free exercise of religion when it implemented a face mask policy in response to the COVID-19 pandemic. Ordinance 1643-2020, the City‘s mask ordinance, required all persons to wear a mask in public spaces. The ordinance did not regulate, or even mention, any religious activity, religious creed, or religious affiliation. Thus, the face mask policies Mr. Robol challenges are both neutral and generally applicable. Kennedy at 525.
{¶ 40} Despite the general applicability and neutrality of the mask ordinance, Mr. Robol nonetheless asserts the City violated his rights under the Free Exercise Clause because the ordinance violated his Christian beliefs, forced him to worship a false god, and had the effect of mocking the tenets of his faith. Though we do not question the sincerity of Mr. Robol‘s interpretation of his religion, we are mindful that a government action is not unconstitutional merely because it incidentally burdens religious practices. See Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, 981 F.3d 505, 509 (6th Cir. 2020), citing Roberts v. Neace, 958 F.3d 409, 413 (6th Cir. 2020). Thus, even if Mr. Robol is motivated by a sincerely held religious belief, his belief “is not determinative where there is a neutral rule of general applicability.” Id., citing Smith, 494 U.S. 872.
{¶ 41} Because the City‘s face mask policy was a neutral rule of general applicability, Mr. Robol cannot show a genuine issue of material fact related to his allegation of a violation of his right to the free exercise of religion. Thus, the trial court did not err in granting appellees’ motion for summary judgment on Mr. Robol‘s free exercise claim under
B. 42 U.S.C. 2000bb – The Religious Freedom Restoration Act
{¶ 42} Mr. Robol also brought a religious exercise claim under
{¶ 43} “The substantial-burden test asks whether the Government is effectively forcing plaintiffs to choose between engaging in conduct that violates sincerely held religious beliefs and facing a serious consequence.” Doe at 589. See also Holt v. Hobbs, 574 U.S. 352, 361 (2015), quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014) (construing the term “substantial burden” as requiring plaintiffs to ” ‘engage in conduct that seriously violates their religious beliefs’ ” ). “[T]he Government substantially burdens an exercise of religion when it ‘place[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs . . . or effectively bar[s] his sincere faith-based conduct.’ ” Doe at 589, quoting Haight v. Thompson, 763 F.3d 554, 565 (2014).
{¶ 44} Not every imposition on religious exercise is a substantial burden. Doe at 590, citing Livingston Christian Schools v. Genoa Charter Twp., 858 F.3d 996, 1003 (6th Cir. 2017). To be considered “substantial,” a burden must have some degree of severity. Id., citing Livingston Christian Schools at 1003. The determination of whether there exists a substantial burden utilizes an objective, rather than subjective, analysis. Id. Importantly, a substantial burden “must be more than a ‘mere inconvenience.’ ” Id., quoting Livingston Christian Schools at 1009.
{¶ 45} Without doubting the sincerity of Mr. Robol‘s belief that wearing a face mask violates his religious beliefs, we note that Mr. Robol does not allege, much less demonstrate through
VIII. Second Assignment of Error – Deprivation of Civil Rights and Freedom of Speech
{¶ 46} In his second assignment of error, Mr. Robol argues the trial court erred in granting appellees’ motion for summary judgment on his claims of violation of his constitutional rights to the freedom of speech, freedom of expression, freedom of the press, due process, unconstitutional taking, and conspiracy to deprive him of civil rights. His arguments under this assignment of error relate to the City‘s face mask policy and to his allegations that he was not given a press pass or permitted to ask questions during a press event. Mr. Robol advanced these arguments through claims brought under
A. Claims Under 42 U.S.C. 1983
{¶ 47} As outlined above,
1. First Amendment Claims
{¶ 48} Mr. Robol alleges appellees violated his First Amendment rights to freedom of speech, freedom of expression, and freedom of the press by requiring him to wear a face mask, by not allowing him to ask questions of Mr. Ginther during a press event, and by refusing to issue him a press pass. The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits the government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
{¶ 49} The First Amendment generally prohibits the government from restricting expression based on its message, ideas, subject matter, or content. Bey v. Rasawehr, 2020-Ohio-3301, ¶ 20, quoting Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002), quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983), quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). However, the First Amendment right to free speech is not absolute, and the government may regulate speech in a manner consistent with the Constitution. Id. at ¶ 21, citing Virginia v. Black, 538 U.S. 343, 358 (2003).
{¶ 50} A government regulation of speech can be either content-based or content-neutral. Bey at ¶ 22-23. When a regulation is content-based, it is presumptively unconstitutional and is subject to strict scrutiny, requiring the regulation to be the least restrictive means to achieve a compelling state interest. Id. at ¶ 22, citing Reed v. Gilbert, 576 U.S. 155, 163 (2015). On the other hand, when a regulation is content-neutral, meaning it does not regulate speech based on what is being communicated, and instead regulates the time, place, and manner of speech, it will be deemed constitutional as long as it (1)
{¶ 51} Mr. Robol argues the City‘s face mask requirement violated his freedom of speech and expression because the choice not to wear a face mask is a form of expressing his opposition to the City‘s response to the COVID-19 pandemic. The City‘s mask ordinance is content-neutral, and nothing in the terms of the ordinance suggests the purpose is to regulate speech. And we agree with appellees the face mask policy promotes an important governmental interest in controlling the spread of COVID-19 that is unrelated to the suppression of speech. See Roman Catholic Diocese v. Cuomo, 592 U.S. 14, 18 (2020) ( “[s]temming the spread of COVID-19 is unquestionably a compelling interest” ). Further, though Mr. Robol opposes the City‘s face mask policy, he does not demonstrate the policy burdens substantially more speech than is necessary to further the important governmental interest of responding to the COVID-19 pandemic. Thus, Mr. Robol cannot show the existence of a genuine issue of material fact that the City‘s face mask policy violated his freedom of speech.
{¶ 52} Mr. Robol next argues the City violated his right to the freedom of speech and expression when it refused to allow him to ask questions of Mr. Ginther at a press conference. On this point, we find any suppression of Mr. Robol‘s speech was incidental to the City‘s important interest in providing a safe and orderly environment.
{¶ 53} “When speech and nonspeech elements are part of the same course of conduct, ‘a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.’ ” Bellecourt v. Cleveland, 2004-Ohio-6551, ¶ 6, quoting O‘Brien, 391 U.S. at 376. A regulation is sufficiently justified where (1) the regulation is within the constitutional power of the Government, (2) the regulation furthers an important or substantial governmental interest, (3) the governmental interest is not related to the suppression of free expression, and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of the governmental interest. Id., quoting O‘Brien at 377.
{¶ 54} The City has an important governmental interest in maintaining order and preserving public safety. See Bellecourt at ¶ 8-9. In Mr. Robol‘s own description of Mr. Ginther‘s press event, which Mr. Robol recorded and was played during his deposition, he bypassed security after he was unable to show a press credential, invited police to arrest him, attempted to enter unauthorized areas, became disruptive, and used profanity directed at security and police. The City allowed Mr. Robol to attend the press conference but advised him he could not ask questions. The City‘s response of instructing Mr. Robol to stand in a different area and not shout questions at Mr. Ginther was not related to the suppression of Mr. Robol‘s expression and was no greater than was necessary to further the City‘s interest in maintaining order and preserving public safety during the press event. Therefore, Mr. Robol cannot demonstrate the existence of a genuine
{¶ 55} Mr. Robol additionally argues under his
{¶ 56} To the extent Mr. Robol challenges, more generally, the government‘s ability to regulate or restrict access to certain events, his argument fails. “Simply because the government may own a piece of property . . . does not mean that property is open to all types of expressive activity at all times.” Miller v. Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010), quoting Perry Edn. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 (1983) ( “[the] State, no less than a private owner of property, has power to preserve the property under its control for the use which it is lawfully dedicated” ). (Internal quotations omitted.) To determine whether a government restriction of speech on publicly owned property is constitutional, we consider (1) whether the speech is protected under the First Amendment, (2) the type of forum and what constitutional standard applies to that type of forum, and (3) whether the restriction on speech satisfies the constitutional standard for the type of forum. Miller at 533, citing S.H.A.R.K. v. Metro Parks Serving Summit Cty., 499 F.3d 553, 559 (6th Cir. 2007).
{¶ 57} The United States Supreme Court recognizes three types of public fora: the traditional public forum, the designated public forum, and the limited public forum. Miller at 534, citing Pleasant Grove City v. Summum, 555 U.S. 460, 469-70 (2009). A non-public forum “is a government-owned property that is not by tradition or governmental designation ‘a forum for public communication.’ ” Id., quoting Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007). “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. Natl. Assn. for the Advancement of Colored People Legal Defense & Edn. Fund, 473 U.S. 788, 806 (1985).
{¶ 58} A limited-access press conference is a non-public forum. See, e.g., Cornelius at 804-06; John K. Maciver Inst. for Pub. Policy, Inc. v. Evers, 994 F.3d 602, 610 (7th Cir. 2021); Kelly v. Lightfoot, 2022 U.S. Dist. LEXIS 195708, *4 (N.D.Ill. Oct. 27, 2022) ( “Mayor Lightfoot‘s press conferences fall under the non-public category because the forum is open only for selective access” ). Thus, the City could regulate access to its limited-access press conferences so long as the regulations are reasonable and are “not an effort to suppress expression merely because public officials oppose the speaker‘s view.” Perry Edn. Assn. at 46. Mr. Robol does not argue the City‘s method of issuing press passes is unreasonable, and he does not point to any
2. Fourteenth Amendment Claims
{¶ 59} Mr. Robol also asserts claims under
{¶ 60} “In a substantive-due-process challenge, ‘[t]he first (and often last) issue . . . is the proper characterization of the individual‘s asserted right.’ ” Stolz v. J & B Steel Erectors, Inc., 2018-Ohio-5088, ¶ 14, quoting Blau v. Fort Thomas Pub. School Dist., 401 F.3d 381, 393 (6th Cir. 2005), citing Reno v. Flores, 507 U.S. 292, 302 (1993). A government action that infringes upon a fundamental right is subject to strict scrutiny, while a government action that does not involve a fundamental right need only be rationally related to a legitimate government interest. Id., citing State v. Lowe, 2007-Ohio-606, ¶ 18.
{¶ 61} Mr. Robol argues the City‘s face mask policies infringed on his fundamental rights without specifying which particular fundamental right is implicated by the City‘s action. As the Fourth District of Ohio recently noted, “there is no general constitutional right to wear, or to refuse to wear a face mask in public places.” (Internal quotations and citations omitted.) Martin v. Ohio Univ., 2023-Ohio-2511, ¶ 47 (4th Dist.). “While the government typically does not regulate what an individual must wear in the privacy of his or her own home, federal, state, and local governments may govern what must be worn in public spaces, particularly when the health and safety of the general public are at issue.” (Internal quotations and citations omitted.) Id. Because Mr. Robol does not identify a fundamental right that is implicated by the City‘s action, the City‘s face mask requirement need only be rationally related to a legitimate government interest. Like the trial court below, we find the City‘s face mask requirement in response to the COVID-19 pandemic was rationally related to the City‘s legitimate government interest in protecting the health and safety of the general public. Thus, Mr. Robol is not able to demonstrate a genuine issue of material fact on his substantive due process claims. As a result, appellees are entitled to summary judgment on Mr. Robol‘s
3. Fifth Amendment Takings Clause Claims
{¶ 62} Lastly, under his
B. Conspiracy Claims Under 42 U.S.C. 1985
{¶ 63} Mr. Robol also asserts claims under
{¶ 64} Mr. Robol argues Ms. Roberts, Mr. Fielding, Mr. Remy, and Mr. Hardin conspired to deny him equal protection before the law. As the trial court notes, Mr. Robol failed to allege either in his amended complaint or in response to appellees’ motion for summary judgment that the alleged conspiracy was motivated by racial or class-based discrimination. On appeal, Mr. Robol argues, for the first time, that the conspiracy was motivated by appellees’ religious discriminatory animus. However, a party may not raise new arguments for the first time on appeal. Wu v. Northeast Ohio Med. Univ., 2019-Ohio-2530, ¶ 17 (10th Dist.) (failure to raise an argument in the trial court results in waiver of the right to raise it on appeal), quoting Hunter v. Shield, 2018-Ohio-2371, ¶ 23 (10th Dist.) ( ” ‘even a de novo standard of review does not supersede the settled practice of not addressing issues raised for the first time on appeal’ ” ). We are not persuaded by Mr. Robol‘s position that he impliedly argued the alleged conspiracy was motivated by religious discriminatory animus by separately raising religion-based claims in
{¶ 65} Having determined the trial court did not err in granting appellees’ motion for summary judgment on Mr. Robol‘s
IX. Third Assignment of Error – Discovery Dispute
{¶ 66} In his third assignment of error, Mr. Robol argues the trial court erred in ruling on appellees’ motion for summary judgment without first ruling on his motion to compel discovery.
{¶ 67} A trial court has broad discretion to regulate discovery, and an appellate court will not reverse a trial court‘s decision to grant or deny a motion to compel discovery absent an abuse of discretion. Anderson v. Bright Horizons Children‘s Ctrs., L.L.C., 2022-Ohio-1031, ¶ 9 (10th Dist.), citing Ettayem v. Land of Ararat Invest. Group, Inc., 2020-Ohio-3006, ¶ 20 (10th Dist.). An abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983); State ex rel. Deblase v. Ohio Ballot Bd., 2023-Ohio-1823, ¶ 27.
{¶ 68} Appellees filed their motion for summary judgment on January 22, 2024. Prior to filing a response to the motion for summary judgment, Mr. Robol filed his motion to compel discovery on February 4, 2024. Subsequently, on February 23, 2024, Mr. Robol filed a memorandum in opposition to appellees’ motion for summary judgment. The trial court then issued its May 6, 2024 decision and entry granting appellees’ motion for summary judgment. In the decision and entry, the trial court acknowledged Mr. Robol‘s pending motion to compel discovery but did not formally rule on it.
{¶ 69} Mr. Robol argues the trial court abused its discretion in ruling on the summary judgment motion without first ruling on his motion to compel discovery. Where a trial court fails to mention or rule on a pending motion, an appellate court presumes the trial court implicitly denied the motion. Columbus v. ACM Vision, V, L.L.C., 2021-Ohio-925, ¶ 22 (10th Dist.); Geygan v. Geygan, 2012-Ohio-1965, ¶ 30 (10th Dist.) A trial court‘s failure to expressly rule on a pending motion before entering final judgment does not, in and of itself, constitute an abuse of discretion. ACM Vision at ¶ 22.
{¶ 70} Here, although the trial court did not expressly rule on Mr. Robol‘s motion to compel, it acknowledged that the motion was pending and addressed Mr. Robol‘s discovery complaints raised in his response to the motion for summary judgment. As the trial court explained,
{¶ 71} Mr. Robol neither made a formal
X. Motion to Take Judicial Notice
{¶ 72} After the parties filed their merit briefs, Mr. Robol filed a motion asking us to take judicial notice of a December 2024 final report of the United States House Select Subcommittee on the Coronavirus Pandemic. Mr. Robol asserted in his motion that he submits the report “for objective findings that social distancing and masking interventions for COVID lacked scientific justification.” (Jan. 15, 2025 Mot. to Take Judicial Notice at 1.)
{¶ 73} An appellate court may take judicial notice of adjudicative facts at any stage of the proceedings. State v. Murphy, 2013-Ohio-5599, ¶ 23 (10th Dist.), citing
{¶ 74} The congressional subcommittee report contains statements that are subject to dispute and new facts not before the trial court. Additionally, a congressional subcommittee report conducted and issued years after the onset of COVID-19 has no bearing on the issues presented in this case: the government‘s real-time response to the coronavirus pandemic as it was happening.
XI. Disposition
{¶ 75} Based on the foregoing reasons, the trial court did not err in granting
Judgment affirmed; motion to take judicial notice denied.
JAMISON, P.J., DORRIAN and EDELSTEIN, JJ., concur.