[Cite as Love v. Hamilton Cty. Job. & Family Servs., 2025-Ohio-2498.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
KEITH LOVE, : APPEAL NO. C-240468 TRIAL NO. A-2401554 Plaintiff-Appellant, :
vs. : JUDGMENT ENTRY HAMILTON COUNTY JOB & FAMILY : SERVICES, : KENYATTA MITCHELL, : DANEYA SMITH, : and : EVAN HANDEL, : Defendants-Appellees. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed as modified. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 7/16/2025 per order of the court. By:_______________________ Administrative Judge [Cite as Love v. Hamilton Cty. Job. & Family Servs., 2025-Ohio-2498.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
KEITH LOVE, : APPEAL NO. C-240468 TRIAL NO. A-2401554 Plaintiff-Appellant, :
vs. : OPINION HAMILTON COUNTY JOB & FAMILY : SERVICES, : KENYATTA MITCHELL, : DANEYA SMITH, : and : EVAN HANDEL, : Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: July 16, 2025
Keith Love, pro se,
Connie Pillich, Hamilton County Prosecuting Attorney, and Dmitriy Bikmayev and James Sayre, Assistant Prosecuting Attorneys, for Defendants-Appellees. [Cite as Love v. Hamilton Cty. Job. & Family Servs., 2025-Ohio-2498.]
CROUSE, Judge.
{¶1} Plaintiff-appellant Keith Love sued defendant-appellee the Hamilton
County Department of Job and Family Services1 (“HCJFS”) along with three
caseworkers, for allegedly mishandling their investigation of an allegation of child
neglect lodged against him. The trial court dismissed all of Love’s claims with
prejudice.
{¶2} Upon review, we conclude that the trial court was correct in holding that
Love failed to state a claim against the caseworkers. We also agree with the trial court’s
conclusion that it never obtained personal jurisdiction over HCJFS, because HCJFS
lacks the capacity to be sued. However, because a personal-jurisdiction dismissal is
“otherwise than on the merits,” see Civ.R. 41(B)(4), we hold that the trial court should
have dismissed Love’s claims against HCJFS without prejudice, and we modify the
judgment to clarify as much. So modified, we affirm.
I. BACKGROUND
{¶3} According to his complaint, Love’s problems began when he applied to
a position to work with children at “Legacy Residential Homes” in February 2023.
Love’s application for employment was rejected, he says, because a background check
revealed that he “ha[d] an open case with Hamilton County.” Love alleges that he was
unaware of any case against him and “immediately call[ed] HCJFS 241 kids and got a
hold of [defendant-appellee] Kenyatta Mitchell,” his “case worker.”
{¶4} Mitchell informed Love that HCJFS had opened a child-neglect
investigation against him in July 2022, after it had received allegations that one of
1 Love named “Hamilton County Job and Family Services,” rather than “Hamilton County Department of Job and Family Services,” in his complaint, notice of appeal, and brief. We have used the name that appeared in the notice of appeal in our caption, but HCJFS’s full name in the body of our opinion. OHIO FIRST DISTRICT COURT OF APPEALS
Love’s sons had engaged in sexual touching of Love’s seven-year-old daughter while
the two children were in Love’s care. Love denied the allegations. Mitchell arrived two
days later and spoke with the male children then present in the home, including the
son alleged to have engaged in the sexual touching. Love’s daughter resided with her
mother and was not present for Mitchell’s visit. Love alleges that he and the mother
were fighting over custody of their daughter in court.
{¶5} According to Love, Mitchell returned a week and a half later and told
him that she had spoken with Love’s daughter and her mother. Mitchell relayed how
Love’s daughter had alleged that Love’s son had inappropriately touched her “over ten
times.” Love again denied these allegations and asserted that the mother had
fabricated the allegations to help her win the custody battle. But Mitchell, Love alleges,
acted “patronizing” and “carried on this attitude of not really trying to listen or believe
what [Love was] saying about the situation.” Love called Mitchell’s supervisor while
she was present, but the supervisor was similarly dismissive. Mitchell then suggested
having “HCDDS” make a visit to Love’s home.2 Feeling pressured, Love acquiesced.
“HCDDS” never contacted Love, however, and Love had to reach out to them to
schedule a meeting.
{¶6} Two weeks later, another caseworker, defendant-appellee Daneya
Smith, visited Love’s home to speak with Love and two of his three sons, including the
son accused of having engaged in the inappropriate touching. In his complaint, Love
alleges that Smith spent the bulk of her visit typing on her phone, but that Love could
not tell whether she was using the device to take notes or ignoring him. Smith
recommended what Love understood to be a counseling program, and Love agreed,
2 “HCDDS” is only identified by this initialism in the complaint.
5 OHIO FIRST DISTRICT COURT OF APPEALS
saying that he was willing to do “anything that’s going to clear this up.” Smith then left
to speak with the children’s mother.
{¶7} In April 2023, Love received a case-disposition letter informing him
that HCJFS had found the neglect charge pertaining to his daughter to be
“substantiated.” Love appealed this determination, but a hearing officer ultimately
upheld HCJFS’s finding, based primarily on the credibility of the daughter’s testimony
at the hearing. Love alleges that Mitchell, who was present for and testified at the
hearing, had “changed some important things and never investigated the very claims
that she put on [him].” Love’s complaint does not explain what he means by this, only
that Love “investigated [him]self,” and “found the truth.”
{¶8} According to Love, his custody dispute over his daughter was ultimately
terminated or dismissed. It is not clear from the complaint whether Love currently has
custody of his daughter.
{¶9} Smith was involved throughout Love’s ongoing custody dispute,
sometimes appearing at the custody hearings. Even after the custody proceedings had
ended, Love alleges, he received and ignored repeated text messages from Smith
seeking to set up times for home visits. Love further alleges that Smith began to “stake
out [his] home” in a dark gray Honda Accord, which Love saw outside his home on
several occasions between January 9 and February 1, 2024.3
{¶10} In April 2024, Love filed his complaint, bringing claims “against,
HCJFS : Kenyatta Mitchell for Gross Negligence 14th amendment right, Daneya Smith
for Harassment and Evan Handel for Neglect misrepresentation.” He sought an order
“to have [his] name removed from th[eir] registry,” as well as damages for “pain and
3 The complaint lists “January 9, 2023,” and “February 1, 2023,” but context suggests that these are
typographical errors.
6 OHIO FIRST DISTRICT COURT OF APPEALS
suffering 30,000, one year salary 35,360 and my filing fee returned 595.00.”
{¶11} The defendants moved to dismiss Love’s complaint for lack of personal
jurisdiction over HCJFS, under Civ.R. 12(B)(2), and for failing to state a claim against
any of the defendants, under Civ.R. 12(B)(6). The trial court found that (1) it “lack[ed]
personal jurisdiction over HCJFS” because “HCJFS is not sui juris and is incapable of
being sued under Ohio law,” (2) the individual defendants were “statutorily immune”
from any state-law tort claims under R.C. 2744.03, (3) Love had failed to allege any
violation of his constitutional rights, and, (4) to the extent Love had alleged a violation
of a constitutional right, the individual defendants would be entitled to qualified
immunity. The court granted the Civ.R. 12(B)(6) motion with respect to all claims
against all parties and dismissed them “with prejudice.”
{¶12} Love then filed the instant appeal.
II. ANALYSIS
{¶13} Love raises three assignments of error, all challenging the trial court’s
dismissal of his claims with prejudice pursuant to Civ.R. 12(B)(6), which we review de
novo. See Schmitz v. NCAA, 2018-Ohio-4391, ¶ 10.
A. Assignment of Error 1: HCJFS’s Capacity to be Sued
{¶14} In his first assignment of error, Love argues that “[t]he trial court erred
in finding HCJFS non-sui juris and dismissing claims against the agency, thus denying
Mr. Love an opportunity to challenge HCJFS’s alleged failure to meet statutory
obligations.” Although we agree with the trial court that HCJFS is not “sui juris” in
that it lacks the capacity to be sued, we nevertheless conclude that the trial court erred
by granting HCJFS’s motion under Civ.R. 12(B)(6) and dismissing the claims against
it with prejudice, rather than granting its motion under Civ.R. 12(B)(2) and dismissing
7 OHIO FIRST DISTRICT COURT OF APPEALS
them without prejudice.
1. Capacity to be Sued
{¶15} “It is well established that both plaintiff and defendant in a lawsuit must
be legal entities with the capacity to be sued.” Patterson v. V & M Auto Body, 63 Ohio
St.3d 573, 574 (1992).
{¶16} The law uses the Latin phrase “sui juris,” which translates literally to “of
its own right/power,” to connote an entity “[o]f full age and capacity” or “[p]ossessing
full social and civil rights.” Black’s Law Dictionary (8th Ed. 2004). In this context, an
entity sui juris is one “possessing full capacity and rights to sue or be sued.” (Cleaned
up.) Krouskoupf v. Muskingum Cty. Common Pleas Court, 2025-Ohio-585, ¶ 11.
HCJFS contends that because it is not “sui juris,” i.e., because it lacks capacity to be
sued, it cannot be haled into court as a defendant.
{¶17} HCJFS is correct; Ohio law has not given it the ability to be sued. County
departments of job and family services are created by state law. See R.C. 329.01. And
Ohio law dictates the powers and duties of these departments. See R.C. 329.04. When,
as is the case in Hamilton County, a county department of job and family services acts
as the county’s “public children services agency,” another set of statutory provisions
provide further powers and duties. See, e.g., R.C. 5153.02(B) (specifying that a “county
department of job and family services” may “be the public children services agency”
for a county); R.C. 5153.18 (describing powers and duties of a public children services
agency); see generally R.C. Ch. 5153.
{¶18} While these statutes have given HCJFS the legal capacity to sue, they
have not endowed it with the capacity to be sued. R.C. 5153.18(A) provides that a
“public children services agency shall have the capacity possessed by natural persons
to institute proceedings in any court” (emphasis added), but is conspicuously silent as
8 OHIO FIRST DISTRICT COURT OF APPEALS
to whether the agency may appear on the other side of the “v.”
{¶19} Love contends that R.C. 5153.16 and 2744.02(B)(5) render HCJFS sui
juris. But neither provision speaks in terms of HCJFS’s capacity to defend a lawsuit.
The former provision merely sets forth the duties of a county public children services
agency, but nowhere speaks to such an agency’s capacity to be sued.
{¶20} Nor does R.C. 2744.02(B)(5) render HCJFS sui juris. The Ohio Supreme
Court has already rejected the argument that Ohio’s municipal-tort-liability statutes
under R.C. Ch. 2744 permit suits against entities not otherwise sui juris. Estate of
Fleenor v. Ottawa Cty., 2022-Ohio-3581, ¶ 12. While those provisions create and
govern “political-subdivision tort liability and immunity,” they do not alter the fact
that an “unchartered county” and its various departments are merely “arm[s] of the
State without the capacity of being sued as . . . separate entit[ies],” unless Ohio law
expressly provides to the contrary. Id.
{¶21} This conspicuous absence of any language empowering the agency to be
sued contrasts sharply with other provisions that unambiguously empower
departments or agencies to be both plaintiffs and defendants. See, e.g., R.C. 305.12
(permitting boards of county commissioners to “sue and be sued, and plead and be
impleaded, in any court”); R.C. 353.02 (a county lake facilities authority is “a body
corporate and politic which may sue and be sued, plead and be impleaded”); R.C.
1545.07 (board of park commissioners “shall be a body politic and corporate, and may
sue and be sued as provided in [R.C. 1545.01-.28]”); R.C. 5595.04(B) (“The governing
board of a regional transportation improvement project may . . . [s]ue and be sued in
its own name, plead and be impleaded . . . .”). When the General Assembly wishes to
create a department or entity that is fully sui juris, it knows how to do so with
unambiguous language.
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} We have found no Ohio cases holding that a county department of job
and family services or public children services agency has the capacity to be sued in its
own name. The closest, Maddox v. Bd. of Dirs. Children Servs. Bd., 2014-Ohio-2312,
¶ 12 (2d Dist.), permitted a suit against a county children services board of directors
in its own name under Ohio’s Open Meetings Act. But in that case, the Second District
expressly disclaimed the question of whether the board’s organic statute rendered it
sui juris. Id. at ¶ 10. Rather, the Maddox court held that the board was a “public body”
under Ohio’s Open Meetings Act, rendered amenable to suits seeking “injunctive
relief, civil forfeitures, court costs, and attorney fees” for violations of that particular
statute. Id. at ¶ 12.
{¶23} Numerous federal district courts have held that departments of job and
family services in Ohio—and HCJFS in particular—lack the capacity to be sued in their
own name. See, e.g., Wilson v. Trumbull Cty. Dept. of Job & Family Servs., 2013 U.S.
Dist. LEXIS 154925, *8-9 (N.D. Ohio Oct. 7, 2013) (magistrate’s recommendation),
adopted 2013 U.S. Dist. LEXIS 154926 (N.D. Ohio Oct. 29, 2013); Lowe v. Hamilton
Cty. Dept. of Job & Family Servs., 2008 U.S. Dist. LEXIS 125138, *5-6 (S.D. Ohio Feb.
29, 2008) (magistrate’s recommendation), adopted 2008 U.S. Dist. LEXIS 24029
(S.D. Ohio Mar. 26, 2008); Linkous v. Hamilton Cty. Job & Family Servs., 2016 U.S.
Dist. LEXIS 14421, *4 (S.D. Ohio Jan. 4, 2016) (magistrate’s recommendation),
adopted 2016 U.S. Dist. LEXIS 14235 (S.D. Ohio Feb. 5, 2016).
{¶24} We therefore hold that Ohio law has not given HCJFS the ability to be
sued in its own name, and that HCJFS therefore could not be made a defendant.4
4 This is not to say that plaintiffs may not seek recompense for tortious or unlawful conduct by
HCJFS. Under Ohio law, all “powers and duties of a county department of job and family services are, and shall be exercised and performed, under the control and direction of the board of county commissioners.” (Emphasis added.) R.C. 329.04(B). Unlike HCJFS, the board of commissioners may “sue and be sued, and plead and be impleaded, in any court.” (Emphasis added.) R.C. 305.12.
10 OHIO FIRST DISTRICT COURT OF APPEALS
2. Dismissal with Prejudice under Civ.R. 12(B)(6)
{¶25} Although the trial court correctly concluded that HCJFS lacked the
capacity to be sued, it erred in dismissing Love’s claims against it with prejudice.
{¶26} HCJFS moved to dismiss this case under Civ.R. 12(B)(2), for “[l]ack of
jurisdiction over the person.” But the trial court dismissed the case against HCJFS
under Civ.R. 12(B)(6), for “[f]ailure to state a claim upon which relief can be granted.”
{¶27} The reason for dismissing a case—and therefore the vehicle used to
dismiss it—have tangible consequences for the parties. The Ohio Rules of Civil
Procedure provide that a dismissal for “[l]ack of jurisdiction over the person or the
subject matter” is a dismissal “otherwise than on the merits,” Civ.R. 41(B)(4), while a
dismissal for failure to state a claim “operates as an adjudication upon the merits
unless the court, in its order for dismissal, otherwise specifies.” Civ.R. 41(B)(3). In
other words, a jurisdictional dismissal under Civ.R. 12(B)(2) must be without
prejudice, while a dismissal based on a failure to state a claim under Civ.R. 12(B)(6)
may be with prejudice.
{¶28} For an action to “commence[]” under Civ.R. 3(A), the trial court needs
to obtain jurisdiction over the defendant—usually by service of process. But an
individual or organization that lacks capacity to be sued cannot be a proper party
defendant. Thus, lack of capacity prevents an action from “commenc[ing]” precisely
because there is no proper defendant over whom the trial court may exercise
jurisdiction, absent waiver. See Patterson, 63 Ohio St.3d at 576. If a proper defendant
was never served, then “no case ever matured . . . to the point where the court had any
jurisdiction over the defendant.” Kossuth v. Bear, 161 Ohio St. 378, 383 (1954). Lack
of capacity means lack of personal jurisdiction.
{¶29} Because a dismissal for lack of capacity is a “dismissal for . . . [l]ack of
11 OHIO FIRST DISTRICT COURT OF APPEALS
jurisdiction over the person,” it “operate[s] as a failure otherwise than on the merits.”
See Civ.R. 41(B)(4)(a). A dismissal for lack of capacity is a dismissal without prejudice.
* * *
{¶30} Accordingly, the trial court should have dismissed Love’s claim against
HCJFS without prejudice, pursuant to HCJFS’s motion under Civ.R. 12(B)(2). We
therefore sustain Love’s first assignment of error in part and overrule it in part.5
B. Assignments of Error 2 & 3: Failure to State a Claim against Individual Defendants
{¶31} Love’s remaining two assignments of error concern the trial court’s
dismissal of his claims against three individual defendants: Evan Handel, Daneya
Smith, and Kenyatta Mitchell.
{¶32} In his second assignment of error, Love contends that “[t]he trial court
erred in granting immunity to Defendants Mitchell, Smith, and Handel under [R.C.]
2744.03(A)(6), despite allegations of reckless and malicious conduct that would
negate such immunity.”
{¶33} In his third assignment of error, Love argues that “[t]he trial court erred
by failing to address Mr. Love’s substantive due process claims, violating his right to a
fair and impartial investigation by HCJFS.”
{¶34} In other words, Love contends that the trial court should not have
granted the individual defendants’ motion to dismiss his state-law tort claims and
federal due-process claim, because his complaint sufficiently stated his entitlement to
relief from those defendants. We address these assignments of error together.
5 Although they are not a model of clarity, some of Love’s other assignments of error could be read
to contend that the trial court erred in dismissing Love’s claims against HCJFS for failing to state a substantive claim upon which relief could be granted. To the extent Love’s other assignments of error raise such issues, our decision as to this first assignment of error renders them moot, and so we do not address them.
12 OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} Ohio’s Civ.R. 12(B)(6) is procedural in character, intended to test the
sufficiency of a complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65
Ohio St.3d 545, 548 (1992); accord Doe v. Greenville City Schools, 2022-Ohio-4618,
¶ 8. Civ.R. 8(A) governs any pleading that sets forth a claim for relief and requires that
such pleadings “contain (1) a short and plain statement of the claim showing that the
party is entitled to relief, and (2) a demand for judgment for the relief to which the
party claims to be entitled.”
{¶36} Ohio courts have construed these provisions to impose a “notice
pleading” regime. See Maternal Grandmother v. Hamilton Cty. Dept. of Job & Family
Servs., 2021-Ohio-4096, ¶ 10. “The purpose of notice pleading is clear: to simplify
pleadings to a short and plain statement of the claim and to simplify statements of the
relief demanded, to the end that the adverse party will receive fair notice of the claim
and an opportunity to prepare his response thereto.” (Cleaned up.) Wells Fargo Bank,
N.A. v. Horn, 2015-Ohio-1484, ¶ 13. Because notice is the goal, Ohio courts do not
require a plaintiff “to prove his or her case at the pleading stage,” and will not dismiss
a complaint “as long as there is a set of facts, consistent with the plaintiff’s complaint,
which would allow the plaintiff to recover.” York v. Ohio State Hwy. Patrol, 60 Ohio
St.3d 143, 145 (1991); accord Doe at ¶ 7-8.
{¶37} A plaintiff is generally not required to plead around possible affirmative
defenses—in part because those defenses generally do not become part of the case until
raised in the answer. See Civ.R. 12(B) (“Every defense, in law or fact, to a claim for
relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is
required . . . .”); Civ.R. 8(C) (“In pleading to a preceding pleading, a party shall set
forth affirmatively . . . any . . . matter constituting an avoidance or affirmative
defense.”). But where the plaintiff’s “complaint shows conclusively on its face that”
13 OHIO FIRST DISTRICT COURT OF APPEALS
some statutory defense would bar an asserted claim, the defendant may seek dismissal
under Civ.R. 12(B)(6). Schmitz, 2018-Ohio-4391, at ¶ 11.
{¶38} It is well-settled that a plaintiff “is not required to affirmatively dispose
of the immunity question at the pleading stage.” Plush v. City of Cincinnati,
2020-Ohio-6713, ¶ 14 (1st Dist.). And yet R.C. 2744.03(A)(6) grants political-
subdivision employees presumptive immunity from liability for harm “caused by any
act or omission in connection with a governmental or proprietary function,” R.C.
2744.03(A), unless within one of three exceptions.
{¶39} To resolve this ambiguity, we focus on what the complaint tells us. We
first determine whether the allegations in the complaint add up to a cause of action
against the defendant. If the answer is no, we need not reach the question of immunity.
{¶40} If the allegations in the complaint arguably allege a cause of action, we
next ask whether the allegations trigger presumptive immunity by alleging that (1) the
defendant is a political subdivision employee and (2) the plaintiff’s harm was caused
by an act or omission connected to a governmental or proprietary function. See R.C.
2744.03(A). If so, we then ask whether, drawing all inferences in favor of the plaintiff,
the complaint is consistent with some set of facts that would justify one of the three
exceptions in R.C. 2744.03(A)(6). See, e.g., Plush at ¶ 47 (affirming denial of motion
to dismiss where the court could not “say that the complaint ‘obviously or conclusively’
established that the officers were merely negligent and thus immune from liability”).
{¶41} Because the relevant allegations against the three defendants differ
from defendant to defendant, we address each in turn.
1. Evan Handel
{¶42} We begin with the simplest: Love’s claim against Evan Handel for
“Neglect misrepresentation.” Love’s complaint contained no allegations regarding
14 OHIO FIRST DISTRICT COURT OF APPEALS
Handel’s actions, role, or relationship to the case. Love’s complaint failed to allege that
Handel did anything, let alone anything that would render him liable in damages. We
therefore hold that the trial court properly dismissed any claims Love brought against
Handel.
2. Daneya Smith
{¶43} Love sought relief against Daneya Smith for “harassment.” Love has
cited no authority for a standalone tort of “harassment” under Ohio law, nor have we
found any. The “harassment” alleged in Love’s complaint consisted of Smith (1)
coming to Love’s home and seeking to make visits after Love had indicated his
disinterest in such visits and (2) observing Love surreptitiously from a vehicle parked
outside Love’s home on an undisclosed number of instances over the span of about a
month.
{¶44} The torts that most nearly fit such allegations would be intentional
infliction of emotional distress (“IIED”) and trespass. However, the facts alleged in the
complaint hardly rise to the level of the sort of extreme or outrageous conduct that
would give rise to an IIED claim. See Yeager v. Local Union 20, Teamsters,
Chauffeurs, Warehousemen & Helpers of Am, 6 Ohio St.3d 369, 375 (1983), quoting
1 Restatement of the Law 2d, Torts, § 46, Comment d (1965) (IIED requires conduct
“‘so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community’”). And Love’s allegations do not suggest that Smith entered onto
his land except to approach his door and enter his home when invited. See Apel v.
Katz, 1998-Ohio-420, ¶ 38, quoting Linley v. DeMoss, 83 Ohio App.3d 594, 598 (10th
Dist. 1992) (“‘trespass upon real property occurs when a person, without authority or
privilege, physically invades or unlawfully enters the private premises of another’”).
15 OHIO FIRST DISTRICT COURT OF APPEALS
{¶45} Because Love has cited no authority to show that the common law
recognizes a tort of “harassment,” and because he has argued no other cause of action
supported by the allegations in his complaint, we hold that the trial court did not err
in dismissing Love’s claims against Smith, regardless of any immunity.
3. Kenyatta Mitchell
{¶46} Love also sought relief from caseworker Kenyatta Mitchell for “Gross
Negligence” and for violations of the Fourteenth Amendment. The former is governed
by Ohio law, the latter by federal law.
a. “Gross Negligence”
{¶47} To prevail in an action for negligence, the plaintiff must show (1) that
the defendant was under a duty to act or not act in a particular manner, (2) that the
defendant breached that duty, and (3) that the breach proximately caused the
plaintiff’s injury. See Rieger v. Giant Eagle, Inc., 2019-Ohio-3745, ¶ 10; Baier v.
Cleveland Ry. Co., 132 Ohio St. 388, 391 (1937).
{¶48} Love’s complaint is not entirely clear as to which of Mitchell’s actions he
claims were the cause of his injury. Love’s brief, however, suggests that Mitchell owed
Love a duty to properly investigate the claims against him. Love points to two sources
for such a duty: Brodie v. Summit Cty., 51 Ohio St.3d 112 (1990), and R.C.
5153.16(A)(1). Both concern the responsibility of HCJFS to investigate allegations of
abuse and neglect.
{¶49} First, even assuming the tort-law duty and cause of action permitted in
Brodie remain good law, they would not apply here. In recognizing the cause of action
in Brodie, the Court emphasized that the statutory structure of R.C. 2151.421 created
a right in the allegedly abused or neglected child to a certain degree of investigation
by the agency. See Brodie at 119 (“the action required by the statute is not directed at
16 OHIO FIRST DISTRICT COURT OF APPEALS
or designed to protect the public at large, but intended to protect a specific child who
is reported as abused or neglected”). Thus, if Mitchell owed such a duty, she owed it
not to Love, but to his daughter.
{¶50} Second, Love asks us to enforce the duty imposed under R.C.
5153.16(A)(1), which requires a public children services agency to “[m]ake an
investigation concerning any child alleged to be an abused, neglected, or dependent
child.” Even assuming, without deciding, that this provision imposed a duty
enforceable against Mitchell in tort, we hold that Mitchell was immune.
{¶51} As Love’s own brief makes clear, Mitchell’s investigation of Love
pursuant to R.C. 5153.16(A)(1) was, on its face, an “act . . . in connection with a
governmental or proprietary function,” entitling Mitchell to the presumptive shield of
immunity. See R.C. 2744.03(A). That shield can be retracted if (a) the acts or omissions
were manifestly outside the scope of her employment, (b) Mitchell acted “with
malicious purpose, in bad faith, or in a wanton or reckless manner,” or (c) the Revised
Code expressly imposes civil liability for the actions. R.C. 2744.03(A)(6).
{¶52} Love does not allege that Mitchell’s actions in the investigation were
outside the scope of her employment, eliminating the first exception to immunity. See
R.C. 2744.06(A)(6)(a). Further, even assuming that R.C. 5153.16(A)(1) imposed upon
Mitchell a duty, no provision of R.C. 5153.16 expressly authorized a private action for
damages for its breach. See R.C. 2744.03(A)(6)(c) (“Civil liability shall not be
construed to exist under another section of the Revised Code merely because that
section imposes a responsibility or mandatory duty upon an employee, . . . or because
the section uses the term ‘shall’ in a provision pertaining to an employee.”).
{¶53} That leaves the second exception. Love alleged that Mitchell acted with
“gross negligence,” but never alleged that she acted “with malicious purpose, in bad
17 OHIO FIRST DISTRICT COURT OF APPEALS
faith, or in a wanton or reckless manner,” as required by the immunity statute. See
R.C. 2744.03(A)(6)(b). Negligence (gross or otherwise) is something less than
wantonness, maliciousness, or bad faith. See Maternal Grandmother, 2021-Ohio-
4096, at ¶ 8, quoting O’Toole v. Denihan, 2008-Ohio-2574, paragraph three of the
syllabus (“Wanton misconduct and reckless conduct thus involve ‘something more
than mere negligence.’”).
{¶54} Nor do Love’s factual allegations sufficiently describe Mitchell’s
investigation of Love as demonstrating a “‘conscious disregard of or indifference to a
known or obvious risk of harm to another that is unreasonable under the
circumstances’” or “‘fail[ing] to exercise any care toward those to whom a duty of care
is owed in circumstances in which there is great probability that harm will result,’” so
that we will infer an allegation that Mitchell’s investigation was conducted wantonly,
or recklessly. See Maternal Grandmother at ¶ 8, quoting Anderson v. Massillon, 2012-
Ohio-5711, ¶ 33-34.
{¶55} The trial court therefore did not err by dismissing Love’s claim seeking
damages for Mitchell’s “gross negligence.”
b. Federal Due-Process Claim
{¶56} Love’s complaint also suggested that Mitchell violated his rights under
the Fourteenth Amendment. The language in his brief makes clear that his claim
sounds in due process. We may presume, therefore, that Love brings this claim under
the cause of action created by 42 U.S.C. 1983, the usual vehicle for civil suits seeking
damages to redress violations of federal constitutional rights.
{¶57} A civil claim for a due-process violation generally requires the plaintiff
to establish three elements: (1) that the plaintiff had a constitutionally-protected
interest in life, liberty, or property, (2) that they were deprived of that interest by state
18 OHIO FIRST DISTRICT COURT OF APPEALS
action, and (3) that they lacked adequate procedures to cure the deprivation. See
Wedgewood Ltd. Partnership I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010).
Further, the deprivation must have been the result of something more than negligence
or a “mere lack of due care by a state official.” Daniels v. Williams, 474 U.S. 327, 330-
331 (1986).
{¶58} First, the Ohio Supreme Court has recognized that Love has either a
property or liberty interest in his reputation, to which the Due Process Clause applies.
See State ex rel. Kilburn v. Guard, 5 Ohio St.3d 21, 23 (1983).
{¶59} Second, Love’s interest was arguably impaired by state action.
According to the complaint, the State or its agents listed and published information
about the open investigation of Love to a database accessible by Love’s prospective
employer.
{¶60} However, nothing in the complaint suggests that state action by
Mitchell deprived him of the interest. The complaint does not allege that Mitchell
opened the investigation against Love. Nor does it allege that Mitchell effected the
deprivation of Love’s liberty interest by entering his name into the database, or that
she prevented him from availing himself of adequate procedural protections or
remedies. Love has therefore failed to allege that Mitchell deprived him of his liberty
or property without due process of law.
{¶61} Love’s citation to Lee TT v. Dowling, 87 N.Y.2d 699 (1996), does
nothing to counter this fact. The question addressed in Lee TT concerned the adequacy
of pre- and post-deprivation procedural safeguards required to publish an alleged
child abuser’s name in a database like the one at issue here. Id. at 710-713. But Lee TT
arose in the context of petitions for expungement from a database, not in an action for
damages against an individual employee. See id. at 702. It therefore considered only
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whether the procedures provided had been adequate, not who could be liable for
resultant injuries.
{¶62} Love cannot recover from Mitchell for deprivations of property or
liberty in which Mitchell was not involved. We therefore hold that the trial court did
not err by dismissing Love’s due-process claim against Mitchell.
c. Injunctive Relief
{¶63} Love’s complaint also sought an injunction ordering Mitchell (or any
other defendant) to “have [his] name removed from there [sic] registry.” Regardless
of whether Love believes state law or the Due Process Clause entitle him to such
injunctive relief, we hold that his injunctive request must fail. Love’s allegations do not
support a viable cause of action against either Handel or Smith. And to merit an
injunction against Mitchell, Love would need to point to something that he would like
Mitchell to do (or stop doing) to get his name off the registry. But neither Love’s
complaint nor his brief suggests anything Mitchell could now do to remove Love from
the database or alter the hearing officer’s finding. Nor does Love argue that Mitchell
possesses any inherent authority to order that Love’s name be removed from the
registry. Thus, even assuming that Love’s continued presence on the registry violates
the law, Love’s complaint offered no basis for granting injunctive relief against
Mitchell.
{¶64} The trial court did not err in granting the motions of individual
defendants Handel, Smith, and Mitchell to dismiss Love’s claims against them under
Civ.R. 12(B)(6). We therefore overrule Love’s second and third assignments of error.
III. CONCLUSION
{¶65} For the foregoing reasons, we sustain Love’s first assignment of error
20 OHIO FIRST DISTRICT COURT OF APPEALS
insofar as it challenged the trial court’s dismissal of his claims with prejudice. We
overrule his first assignment of error in all other respects, along with his second and
third. Accordingly, we modify the trial court’s judgment to reflect that Love’s claims
against HCJFS were dismissed for want of personal jurisdiction and therefore without
prejudice. See Civ.R. 41(B)(4). So modified, we affirm the trial court’s judgment.
Judgment accordingly.
BOCK and MOORE, JJ., concur.