Pollock v. Rashid

• Decision Date: 31 December 1996
• Docket Number: No. C-950874,C-950874
• Citation: 117 Ohio App.3d 361,690 N.E.2d 903
• Parties: POLLOCK, Appellant, v. RASHID et al. Appellee. First District, Hamilton County
• Court: Ohio Court of Appeals

Page 361

117 Ohio App.3d 361

690 N.E.2d 903

POLLOCK, Appellant, v. RASHID et al. Appellee.

No. C-950874.

Court of Appeals of Ohio,

First District, Hamilton County.

Decided Dec. 31, 1996.

Syllabus by the Court

1. A civil action was not barred by the statute of limitations when the indigent plaintiff did everything in her power to file the complaint on time, and when a timely filing was prevented through the fault of the clerk of courts, who had failed to promulgate a policy for indigent civil filings and accepted the complaint only after the plaintiff separately sought a writ of mandamus; under these circumstances, the filing of the complaint related back to the date on which the plaintiff first tried to file the complaint.

2. In a defamation action brought by a private-figure plaintiff, it must be proved by clear and convincing evidence that the defendant acted negligently.

3. To invoke the "fair report" privilege of R.C. 2317.05, a defendant must demonstrate that an allegedly defamatory publication was a substantially accurate report of an official record: the publication must have "convey[ed] the essence of the official record to the ordinary reader, without misleading the reader by the inclusion of inaccurate extra-record information or the exclusion of relevant information in the record." Oney v. Allen (1988), 39 Ohio St.3d 103, 529 N.E.2d 471, paragraph three of the syllabus.

4. When the essence of a defamation claim, as stated in the complaint, was that inclusion of inaccurate information from outside the official record of a suit brought against the warden of a correctional facility by a transsexual inmate and the exclusion of relevant information caused a television news report to mislead the public about the nature of the inmate's suit and to hold her up to ridicule, the claim was not subject to dismissal under Civ.R. 12(B)(6).

5. A separate claim for invasion of privacy arising out of the news report was properly dismissed when the broadcast concerned facts that the inmate had already made public by the filing of her lawsuit against the warden.

Susan Pollock, pro se.

Frost & Jacobs, and Richard M. Goehler, Cincinnati, for appellee.

PER CURIAM.

Plaintiff-appellant, Susan Pollock, filed a pro se complaint against defendant-appellee, Norma Rashid, a news anchor for television station WLWT, alleging defamation, invasion of privacy and intentional infliction of emotional distress. Pollock also named as defendants in the suit Melissa Ross, a former reporter for WLWT, and Bruce Corris, a former news director. However, she never obtained service on these two defendants.

Pollock is an inmate at the Warren County Correctional Institution. In her complaint, she alleged that she is a transsexual who has, through surgery and hormone therapy, physically altered her body to the point where she has the physical characteristics and appearance of a woman. Pollock alleged that she considers herself to be a woman and has held herself out to be a woman for many years.

After she was convicted of a felony, prison officials sent her to a male institution because she had been born a male. In prison, she suffered harassment, rape and physical assaults from the guards and other prisoners. She filed suit against the warden, seeking, among other things, to be transferred to a female prison, to be treated the same as other female inmates, and to continue her hormone therapy, the discontinuation of which was causing her severe medical problems.

On April 1, 1994, WLWT did a news report about Pollock's suit against the warden. Anchor Rashid introduced the story and Ross did the body of the report from the prison. According to Pollock, the news report "contained many false and inaccurate statements, in addition to being extremely biased and one-sided in nature." She alleged that Ross continually referred to her as "Mark Pollock" when her legal name, as used in the suit, has been Susan since 1975. During the report, the station showed a photo of a man with a beard who was extremely masculine in appearance, which the report identified as Pollock, although Pollock has looked like a woman for many years. Further, the news report left out numerous important facts set out in her suit against the warden, causing the entire broadcast to be biased. She claimed that the entire tenor of the report was to make her look ridiculous, like some burly male inmate who decided he wanted to wear lipstick, when in reality her suit dealt with important issues such as her lack of medical care and accommodations for her privacy and safety.

Pollock alleged that the reporters did not contact her to obtain her side of the story, nor did they examine the official court record which contained photographs showing her female appearance. On the air, they interviewed the warden and an attorney from the Attorney General's Office, who was representing the warden. In these interviews, they discussed how much money frivolous suits by prison inmates cost taxpayers each year, thus conveying the impression that Pollock's suit was without merit.

Pollock further alleged that after the broadcast, she immediately wrote a letter to Rashid, in which she complained about the factual errors and the one-sided tone of the report. She requested that the station run a retraction or a follow-up story to correct the misrepresentations in the original report. Ross wrote to Pollock stating that she presented the story as it was told to her by the warden and that she obtained the photograph used in the broadcast from the warden. Though Ross indicated that she would be interested in speaking to Pollock, no interview ever took place and Pollock's demands to the station for a retraction pursuant to R.C. 2739.03(C) went unanswered.

In response to Pollock's complaint, Rashid filed a motion to dismiss pursuant to Civ.R. 12(B)(6). In her motion, she argued that Pollock's defamation claim was barred by the statute of limitations, and that Pollock had not alleged facts sufficient to state a claim for invasion of privacy or intentional infliction of emotional distress. The trial court granted Rashid's motion to dismiss without stating its reasons for doing so. This appeal followed.

Pollock originally presented three assignments of error for review. However, she has withdrawn her second assignment of error, and we therefore decline to address it.

In her first assignment of error, Pollock states that the trial court erred in failing to enter findings of fact and conclusions of law as she timely requested. She claims that she is placed in a difficult situation in bringing this appeal because she does not know the court's reasons for granting the motion to dismiss. We find this assignment of error is not well taken.

Civ.R. 52 specifically states that findings of fact and conclusions of law "are unnecessary" for motions filed pursuant to Civ.R. 12. When a court dismisses a complaint pursuant to Civ.R. 12(B)(6), it makes no factual findings beyond its legal conclusion that the complaint fails to state a claim upon which relief can be granted. Thus, the court does not assume the role of factfinder and has no duty to issues findings of fact and conclusions of law. State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 41, 528 N.E.2d 1253, 1254. Accordingly, Pollock's first assignment of error is overruled.

In her third assignment of error, Pollock states that the trial court erred in granting Rashid's motion to dismiss. Pollock argues that she pleaded sufficient facts in her complaint to set forth claims for defamation, invasion of privacy, and intentional infliction of emotional distress. She further argues that her defamation claim was not barred by the statute of limitations because she did everything in her power to file the complaint before the statute of limitations expired, and it was only because the clerk of courts improperly refused to accept the filing of her complaint that it was filed out of time. We find this assignment of error to be well taken as to the defamation claim.

R.C. 2305.11 provides that a cause of action for defamation shall be commenced within one year after the cause of action accrued. In a defamation case involving mass media, the cause of action accrues at the time publication is made. Guccione v. Hustler Magazine (C.P.1978), 64 Ohio Misc. 59, 60, 18 O.O.3d 273, 273-274, 413 N.E.2d 860, 861; Morgan v. Hustler Magazine, Inc. (N.D.Ohio 1987), 653 F.Supp. 711, 717. See, also, Lyons v. Farmers Ins. Group of Cos. (1990), 67 Ohio App.3d 448, 450, 587 N.E.2d 362, 363-364. The news report was aired on April 1, 1994. Rashid argues that since the complaint was not filed until August 1995, it was filed out of time and the trial court properly dismissed the defamation claim on that basis.

However, the record shows that in March 1995, before the statute of limitations had run, Pollock tried to file her complaint along with a motion to proceed in forma pauperis. However, the clerk of courts would not accept it without payment of the filing fee. Consequently, Pollock filed a petition for a writ of mandamus in the Ohio Supreme Court. The clerk eventually agreed to accept Pollock's filing and to develop a policy regarding the acceptance of civil court filings by indigent persons.

In Welfare Fin. Corp. v. Estep (1960), 170 Ohio St. 391, 11 O.O.2d 120, 165 N.E.2d 789, the defendant attempted to appeal an adverse judgment. The appellate court affirmed the judgment because the clerk of courts failed to transmit the bill of exceptions to the trial judge for his signature as was then required by statute. The Supreme Court reversed, holding that defendant should not have been precluded from having her appeal heard on the merits "for failure of the clerk of courts to perform a ministerial act in connection with the bill of exceptions." Id. at 392, 11 O.O.2d at 121, 165 N.E.2d at 790. The court found applicable "[t]he general rule that the law...