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Loper v. Help Me Grow of Cuyahoga County

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 21, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-871832

          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.



         {¶1} 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.

         {¶2} 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."

         {¶3} 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 ("Mitzner").

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 system.

         {¶9} Notably, Mitzner's affidavit did not discuss whether Loper sought a due process hearing challenging this determination.

         {¶10} 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.

         {¶11} 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 administrative remedies."

         {¶12} 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 ...

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