Court of Appeals of Ohio, Fourth District, Gallia
RUBIN A. MITCHELL, Plaintiff-Appellant,
HOLZER MEDICAL CENTER, et al., Defendants-Appellees.
CASE FROM COMMON PLEAS COURT
A. Mitchell, Orient, Ohio, pro se.
Zachary J. Lyon, Columbus, Ohio, for appellees Kyle E.
McCausland, M.D., Katha Wilcoxon, R.N., and Holzer Medical
Michael DeWine, Ohio Attorney General, and Morgan A. Linn,
Ohio Assistant Attorney General, Columbus, Ohio, for
appellees Ohio State Highway Patrol, Sergeant Nicholas
Johnson, Trooper James Trelka, Trooper Keith Fellure, Trooper
Mark McFann, and Lieutenant Karla Taulbee.
DECISION AND JUDGMENT ENTRY
1} This is an appeal from a Gallia County Common Pleas Court
judgment that granted judgment on the pleadings in favor of
Holzer Medical Center, Kyle McCausland, M.D., Katha Wilcoxon,
R.N. (the Holzer defendants), Ohio State Highway Patrol
Sergeant Nicolas S. Johnson, Trooper James M. Trelka, Trooper
Keith Fellure, Lieutenant Karla Taulbee, and Trooper Mark
McFann (the OSHP defendants), defendants below and appellees
herein. Rubin A. Mitchell, plaintiff below and appellant
herein, raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE
PLAINTIFF['S] DUE PROCESS RIGHTS BY NOT RULING ON
SUBMITTED MOTIONS IN A TIMELY MANNER."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT DISMISSED THE COMPLAINT
FOR VIOLATING THE STATUE [SIC] OF LIMITATIONS CLAUSE."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT VIOLATED THE APPELLANT'S DUE
PROCESS RIGHTS IN NOT APPOINTING HIM COUNSEL IN THE PRESENT
2} On June 21, 2016, appellant filed a pro se complaint
against appellees that asserted that, as a result of a May
31, 2014 traffic stop, he was subjected to an
unconstitutional cavity search-both at the OSHP post and at
Holzer Medical Center. Appellant alleged, in essence, that
the series of events that surrounded the May 31, 2014 traffic
stop and cavity search violated his civil rights and
constituted assault, battery, and negligence. Appellant
additionally requested the trial court to appoint counsel to
3} After appellees answered, appellant filed an extension of
time to respond to appellees' answer and an extension of
time to file a motion for discovery, a motion for leave to
amend the complaint, a motion for leave for joinder, and a
renewed motion to appoint counsel. Appellant also requested
additional time to serve interrogatories.
4} Both appellees subsequently filed Civ.R. 12(C) motions for
judgment on the pleadings. The OSHP defendants alleged that
appellant's complaint is barred by the two-year statute
of limitations applicable to claims alleging civil rights
violations. The Holzer defendants asserted that
appellant's complaint is barred by the one-year statutes
of limitations applicable to medical claims and to assault
and battery claims.
5} Appellant did not respond to either of the motions for
judgment on the pleadings, but instead filed (1) a
"request for joinder" that asked the court to
"join all parties that [were] named in the complaint,
" (2) a motion for extension of time to file affidavits
of merit, (3) another motion to appoint counsel, and (4) a
request for an extension of time "to file all answers,
reply briefs, [and] requests for discoveries from
6} On October 6, 2016, the trial court overruled all of
appellant's outstanding motions and granted
appellees' motions for judgment on the pleadings. This
7} Before we consider appellant's assignments of error,
we observe that appellant is acting pro se in this appeal.
Because we ordinarily prefer to review a case on its merits
rather than dismiss an action due to procedural
technicalities, we generally afford considerable leniency to
pro se litigants. E.g., Viars v. Ironton, 4th Dist.
Lawrence No. 16CA8, 2016-Ohio-4912, 2016 WL 3670171,
¶25; Miller v. Miller, 4th Dist. Athens No.
14CA6, 2014-Ohio-5127, 2014 WL 6488876, ¶13; In re
Estate of Pallay, 4th Dist. Washington No. 05CA45,
2006-Ohio-3528, 2006 WL 1875899, ¶10; Robb v.
Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846
N.E.2d 878, ¶5 (4th Dist.); Besser v. Griffey,
88 Ohio App.3d 379, 382, 623 N.E.2d 1326 (4th Dist.1993);
State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199,
206, 614 N.E.2d 827 (4th Dist.1992). "Limits do exist,
however. Leniency does not mean that we are required 'to
find substance where none exists, to advance an argument for
a pro se litigant or to address issues not properly
raised.'" State v. Headlee, 4th Dist.
Washington No. 08CA6, 2009-Ohio-873, 2009 WL 478085, ¶6,
quoting State v. Nayar, 4th Dist. Lawrence No.
07CA6, 2007-Ohio-6092, 2007 WL 3407169, ¶28.
Furthermore, we will not "conjure up questions never
squarely asked or construct full-blown claims from convoluted
reasoning." Karmasu, 83 Ohio App.3d at 206. We
will, however, consider a pro se litigant's appellate
brief so long as it "contains at least some cognizable
assignment of error." Robb at ¶5;
accord Coleman v. Davis, 4th Dist. Jackson No.
10CA5, 2011-Ohio-506, 2011 WL 345772, ¶14 (considering
pro se litigant's brief when it contains "some
semblance of compliance" with appellate rules of
practice and procedure). In the case sub judice, we believe
that appellant's brief does contain some cognizable
assignments of error that we may consider on the merits.
8} For ease of discussion, we first address appellant's
second assignment of error. In his second assignment of
error, appellant contends that the trial court erred by
dismissing his complaint because the court incorrectly
determined that the statute of limitations bars his
complaint. Appellant appears to agree that, at most, a
two-year statute of limitations applies to his claims against
appellees. Appellant's brief, however, fails to clarify
why he believes the trial court wrongly determined that he
did not file his complaint within the two-year statute of
9} Appellees argue that the trial court correctly determined
that the statute of limitations bars appellant's
complaint, and thus, that the court properly granted their
motions for judgment on the pleadings. Appellees point out
that appellant's complaint alleges that the alleged
wrongful acts occurred on May 31, 2014, and that he did not
file his complaint until June 21, 2016. Appellees therefore
assert that appellant failed to file his complaint within
either (1) the one-year statutes of limitations ...