Cleavenger v. B.O.
| Decision Date | 16 February 2022 |
| Docket Number | 29875 |
| Citation | 184 N.E.3d 968 |
| Parties | Todd CLEAVENGER, Appellant v. B.O., et al., Appellees |
| Court | Ohio Court of Appeals |
TODD CLEAVENGER, pro se, Appellant.
LAWRENCE R. BACH, Attorney at Law, for Appellee.
K. T. pro se, Appellee.
DECISION AND JOURNAL ENTRY
{¶1} Appellant, Todd Cleavenger, appeals orders of the Summit County Court of Common Pleas that dismissed his complaint. This Court affirms.
{¶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 42 U.S.C. 1983. The complaint also alleged claims for intentional infliction of emotional distress, slander and libel, and defamation. It also purported to assert a stand-alone claim for punitive damages.
{¶3} B.O. moved to dismiss the complaint under Civ.R. 12(B)(6). Noting that she believed service upon her was defective because she did not work or reside at the place of service, she "[did] not challenge the service on her, however, as she [was] anxious to defeat the claims of [Mr.] Cleavenger" and "[i]n effect * * * waive[d] service as though a waiver was requested pursuant to Civ.R. 4.7." On September 21, 2020, the trial court granted her motion and dismissed all of the claims asserted against B.O.
{¶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 Civ.R. 41(B)(1) [ ]" because Mr. Cleavenger "failed to take action to comply with the September 22, 2020 Order, has not sought a continuance of the deadline imposed in that Order and has failed to serve [K.T.] with a summons and complaint." Mr. Cleavenger filed this appeal challenging that order and the September 21, 2020, order that dismissed his claims against B.O. He has raised five assignments of error, which are rearranged for purposes of disposition.
{¶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 Civ.R. 12(B)(6) de novo. See Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim "is a procedural motion that tests the sufficiency of the plaintiff's complaint." Pugh v. Capital One Bank (USA) NA, 9th Dist. Lorain No. 20CA011643, 2021-Ohio-994, 2021 WL 1169831, ¶ 7, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). Dismissal for failure to state a claim can only be granted when, having presumed that all factual allegations of the complaint are true and having made all reasonable inferences in favor of the plaintiff, it appears beyond doubt that the plaintiff can prove no set of facts that would warrant relief. Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988) ; Fisher v. Ahmed , 9th Dist., 2020-Ohio-1196, 153 N.E.3d 612, ¶ 9. Although Civ.R. 8(A) requires only "a short and plain statement of the claim showing that the party is entitled to relief[,]" a complaint cannot consist merely of "bare assertions of legal conclusions." State ex rel. Yeager v. McCarty , 9th Dist. Summit No. 29626, 2021-Ohio-2492, 2021 WL 3077215, ¶ 3-5. Id. at ¶ 5.
{¶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 Civ.R. 12(B)(6) to accept the allegations of the complaint as true without considering facts outside the complaint, see State ex rel. Fuqua v. Alexander , 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997), a trial court must consider the substantive law that underlies the plaintiff's claims in evaluating a motion to dismiss. See generally McCarty at ¶ 3-5. To the extent that Mr. Cleavenger argues that the trial court erred by doing so, those arguments are also misplaced.
{¶9} 42 U.S.C. 1983 (" Section 1983") "creates a cause of action against any person acting under color of state law who deprives another party of a constitutionally guaranteed federal right." State ex rel. New Wen, Inc. v. Marchbanks , 163 Ohio St.3d 14, 2020-Ohio-4865, 167 N.E.3d 934, ¶ 11. To establish a claim under Section 1983, a plaintiff must demonstrate two elements: "(1) the conduct in controversy must be committed by a person acting under color of state law, and (2) the conduct must deprive the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States." 1946 St. Clair Corp. v. Cleveland , 49 Ohio St.3d 33, 34, 550 N.E.2d 456 (1990), citing Parratt v. Taylor , 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Each element must be present in order to survive a motion to dismiss. Fritz v. Charter Twp. of Comstock , 592 F.3d 718, 722 (6th Cir. 2010). See also Evans v. Ohio Atty. Gen. , 4th Dist. Scioto No. 20CA3927, 2021-Ohio-1146, 2021 WL 1250310, ¶ 8, 21-22.
{¶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, 513 N.E.2d 288 (1987), superseded on other grounds by R.C. 2743.02(F), citing U.S. v. Classic , 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). See also Rudd v. Norton Shores , 977 F.3d 503, 512 (6th Cir. 2020) (). Under Section 1983, a plaintiff cannot proceed "against a private party ‘no matter how discriminatory or wrongful’ the party's conduct." (Alterations in original.) Tahfs v. Proctor , 316 F.3d 584, 590 (6th Cir. 2001), quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).
{¶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, 102 S.Ct. 2744, 73 L.Ed.2d 482 (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,...
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