Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Latasha Loper, pro se.
ATTORNEYS FOR APPELLEE Robert Triozzi Cuyahoga County
Director of Law Victor Manolache Kelly Espy Robin M. Wilson
Assistant Directors of Law
BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, PRESIDING JUDGE.
Plaintiff-appellant, Latasha Loper ("Loper"),
brings this pro se appeal from the trial court's order
granting summary judgment to defendant-appellee, Help Me Grow
of Cuyahoga County ("HMG"). For the reasons set
forth below, we affirm.
In November 2016, Loper filed a pro se complaint, alleging
HMG had wrongfully denied early intervention services to her
two minor children, P.L. and P.B. Loper claims both P.L. and
P.B. have developmental delays. Loper further alleges HMG
discriminated against her children because they are
African-American. In her complaint, Loper sought $2, 000, 000
in damages, as well as punitive damages, and "removal of
staff that did not comply with [HMG's] mission, vision,
and core values."
In January 2017, HMG moved to dismiss Loper's complaint
pursuant to Ohio Civ.R. 12(B)(1), arguing the trial court did
not have subject matter jurisdiction because Loper had failed
to exhaust available administrative remedies before filing
her complaint. Specifically, HMG argued that Loper failed to
pursue a due process hearing before the Ohio Department of
Developmental Disabilities ("DODD") as required
under Ohio Adm.Code 3701-8-10. In support of its motion to
dismiss, HMG attached the affidavit of its director, Karen
Mitzner averred the following. On December 2, 2014, HMG
received an initial referral for P.L., from a child find
specialist at MetroHealth Medical Center. HMG attempted to
contact Loper via telephone and written correspondence in
order to discuss the referral. On December 13, 2014, HMG
exited PL's referral from HMG's intake system because
HMG had not yet received a response from Loper.
On March 25, 2015, Loper visited the HMG office and met with
a service coordinator supervisor regarding her concerns about
P.L. The service coordinator supervisor submitted a second
referral for P.L. In April 2015, an HMG service coordinator
met with Loper and completed the intake process for P.L.
Loper and P.L. then met with a developmental specialist from
the Cuyahoga County Board of Developmental Disabilities
("CCBDD"). The developmental specialist evaluated
P.L. using the Battelle Developmental Inventory
("BDI"), but did not identify a developmental
delay. However, after further discussion with Loper, the
developmental specialist determined "through her
informed clinical opinion" and based upon all
information available to her at that time, that P.L. was in
fact eligible for early intervention services.
According to Mitzner, Loper expressed concern that P.L. was
determined to be eligible for services based upon the
developmental specialist's clinical opinion rather than
the BDI. In response, the HMG service coordinator advised
Loper she could make another referral if she wanted to move
forward with further evaluation or services for P.L. or P.B.
In July 2015, Loper made a third referral for P.L. and a
first referral for P.B. HMG attempted to contact Loper by
telephone and text message to schedule intake visits for P.L.
and P.B. HMG conducted an intake visit with both P.L. and
P.B. in late September 2015. In November 2015, CCBDD
evaluated both P.L. and P.B. using the BDI, finding both
children ineligible for services.
On January 20, 2016, Loper made a fourth referral for P.L. to
HMG. Mitzner states that HMG attempted to contact Loper, but
received no response and exited the fourth referral from its
Notably, Mitzner's affidavit did not discuss whether
Loper sought a due process hearing challenging this
Three days after HMG filed its motion to dismiss, Loper filed
a response arguing "[t]he Ohio [DODD] * * * has no
jurisdiction in the matter of discrimination, a civil
wrong." Loper did not dispute that she did not file an
administrative complaint requesting a due process hearing.
Five months after HMG filed its motion, the trial court
issued the following journal entry:
A review of [HMG's] motion to dismiss indicates that
[its] argument for dismissal is based on the affirmative
defense of failure to exhaust administrative remedies.
Because affirmative defenses typically require reference to
materials outside the complaint, they are not amenable to * *
* disposition by means of a Civ.R. 12(B)(6) motion to
dismiss. See State ex rel. Freeman v. Morris, 62
Ohio St.3d 107, 109, 579 N.E.2d 702 (1991). As [HMG] has
presented matters outside of the pleadings as enumerated by
Civ.R. 56, and in accordance with Ohio Civ.R. 12(B),
[HMG's] motion to dismiss is hereby converted to a motion
for summary judgment. [Loper] is hereby granted 14 days from
the date of this order to file an opposition to [HMG's]
motion, along with accompanying evidentiary materials made
pertinent to such motion by Civ.R. 56.
The record reflects that Loper did not file an amended brief
in opposition or submit any evidentiary materials in the
14-day window provided by the trial court. Exactly 15 days
after the trial court issued this entry, it granted summary
judgment in favor of HMG and dismissed Loper's complaint.
The trial court found that HMG "is entitled to judgment
as a matter of law as [Loper] failed to exhaust her
It is from this order that Loper appeals, raising the
following three assignments of error for review:
Assignment of Error One
The court erred in the decision of no genuine issue of
material fact according to the purpose of [Civ.R. 12(B)(6).]
Assignment of Error Two
The court erred in the consideration of all the evidence
according to ...