[Cite as Pugh v. Sloan, 2019-Ohio-3615.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


 WALLACE PUGH,                                    :         OPINION

                   Plaintiff-Appellant,           :
                                                            CASE NO. 2019-A-0031
         - vs -                                   :

 WARDEN OF LAECI, SLOAN, et al.,                  :

                   Defendants-Appellees.          :


 Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CV
 00595.

 Judgment: Reversed and remanded.


 Wallace Pugh, pro se, PID: #A348-188, Lake Erie Correctional Institution, 501
 Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Plaintiff-Appellant).

 Timothy J. Bojanowski, Struck Love Bojanowski & Acedo, PLC, 3100 W. Ray Road,
 Suite 300, Chandler, AZ 85226 (For Defendants-Appellees).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Wallace Pugh (“Mr. Pugh”), appeals the judgment of the

Ashtabula County Court of Common Pleas granting the motion to dismiss of appellees,

Warden Sloan, Assistant Unit Manger Noholtz, Sgt. Bennett, J. Barker, and Sgt. Mozza

(collectively, the “defendants”), and dismissing his complaint for failure to state a claim.

        {¶2}      We find Mr. Pugh’s claim was sufficiently pled under Civ.R. 8(A) to survive

a Civ.R. 12(B)(6) motion to dismiss. Thus, we reverse the judgment of the Ashtabula
County Court of Common Pleas and remand for further proceedings consistent with this

opinion.

                      Substantive History and Procedural Background

        {¶3}    On September 10, 2018, Mr. Pugh, pro se, filed a document entitled “Motion

for Waiver of Deposit, Filing Fee of Said Civil Complaint Pursuant to Local Rule 2(C)(2)”

in the Ashtabula County Court of Common Pleas, along with a new case designation

form, a poverty affidavit, and instructions for service. Mr. Pugh’s address was listed as

the Lake Erie Correctional Institution in Conneaut, Ohio.

        {¶4}    In the case caption of this document, Mr. Pugh listed the names of the

defendants and some of their titles, including the warden, a unit manager, an assistant

unit manager1, and two sergeants. In the body, Mr. Pugh stated that he was currently

incarcerated and had been for over 20 years. He requested that the trial court find him

indigent and that all parties be notified of the complaint for “possible negotiations.” He

also referred to a jury demand.

        {¶5}    Two days later, Mr. Pugh filed a second document entitled “Motion to

Ammend [sic] Original Complaint.” In the document’s first paragraph, Mr. Pugh sought

to add another individual as an additional defendant, who he identified as “Unit Manager

Harsin.” He also alleged “reckless unprofessional misconduct,” “intent for theft with

blaintant [sic] deception,” and “disregard of laws,” and listed a prayer amount of $250,000

per defendant, for a total of $1,250,000.

        {¶6}    In a portion entitled “Memorandum of [sic] Support,” Mr. Pugh alleged, in

pertinent part, that the “defendants neglected, to this current time, to come forth with


1. Mr. Pugh identified this individual’s surname as “Noholtz,” but defendants assert that the correct surname
is “Hinojos.”


                                                     2
plaintiff’s property, and slandered, and furthermore, stole his personnal [sic] property, and

placed his own person in isolation, and the failure to give back his private documents)

[sic] and property of vital value, that places his extreme hard work for a minimal time-

frame of 20+ years at risk of destruction, and possible exploitation, places his work he’s

put forth to an amount that’s unspeakable.”

       {¶7}   In a portion of the document entitled “Relief Sought,” Mr. Pugh listed

“punitive damages” of $1,250,000 and “monitary [sic] damages” of $1,250,000.

       {¶8}   The next day, the clerk of courts issued service of the summons. It does

not appear that the clerk issued service on Unit Manager Harsin.

       {¶9}   On October 5, 2018, Mr. Pugh filed a third document, the certificate of which

indicates he served it on the clerk of courts rather than the defendants.

       {¶10} On October 16, 2018, the defendants, by and through counsel, moved to

dismiss Mr. Pugh’s complaint for failure to state a claim pursuant to Civ.R. 8 and 12,

arguing that Mr. Pugh’s first and second documents contained insufficient facts to allow

them to formulate an answer. Mr. Pugh filed a response where he set forth more specific

allegations regarding his claim.

       {¶11} The trial court subsequently issued a judgment entry granting the

defendants’ motion to dismiss and dismissing Mr. Pugh’s complaint. The trial court

construed Mr. Pugh’s first document as a complaint and his second document as an

amended complaint. The trial court did not reference Mr. Pugh’s third document or his

response.

       {¶12} Specifically, the trial court found as follows:




                                              3
       {¶13} “When reviewing Plaintiff’s complaint, along with Defendants’ Motion to

Dismiss pursuant to Ohio Civ.R. 8 and Ohio Civ.R. 12, it is apparent that the Plaintiff has

not followed proper pleading requirements. After review, Plaintiff’s original complaint and

amended complaint, are both deficient in that both fail to set forth a short plain statement

of the claim showing that the party is entitled to relief, and a demand for judgment for the

relief to which the party claims to be entitled. Neither complaint is in compliance with the

requirements of Ohio Civ.R. 8.         Plaintiff’s complaint and amended complaint have

insufficient facts to allow Defendants a basis to formulate an answer.

       {¶14} “Plaintiff’s Complaint cannot survive an Ohio Civ.R. 12(B)(6) challenge.

Plaintiff has failed to state a claim upon which relief may be granted and can prove no set

of facts entitling him to the relief sought.”

       {¶15} Mr. Pugh now appeals and presents the following assignment of error for

our review:

       {¶16} “The trial court abused its discretion when it granted defendant’s [sic] motion

to dismiss and dismissed Pugh’s complaint herein.”

                                     Standard of Review

       {¶17} An appellate court’s standard of review for a trial court's ruling on a motion

to dismiss is de novo. (Citations omitted.) Bliss v. Chandler, 11th Dist. Geauga No. 2006-

G-2742, 2007-Ohio-6161, ¶91.

       {¶18} Civ.R. 12(B)(6), which provides, in pertinent part, as follows:

       {¶19} “Every defense, in law or fact, to a claim for relief in any pleading, whether

a claim, counterclaim, cross-claim, or third party claim, shall be asserted in a responsive

pleading thereto if one is required, except that the following defenses may at the option




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of the pleader be made by motion: * * * failure to state a claim upon which relief can be

granted[.]”

       {¶20} “A motion to dismiss for failure to state a claim upon which relief can be

granted is procedural and tests the sufficiency of the complaint.” (Citation omitted.) State

ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). In

resolving a Civ.R. 12(B)(6) motion, courts are confined to the allegations in the complaint

and cannot consider outside materials. State ex rel. Baran v. Fuerst, 55 Ohio St.3d 94,

97 (1990).

       {¶21} In construing the complaint, a court must presume that all factual allegations

are true and make all reasonable inferences in favor of the non-moving party. (Citations

omitted.) Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). A complaint should

not be dismissed for failure to state a claim unless it appears beyond doubt from the face

of the complaint that the plaintiff can prove no set of facts entitling him to recover.

(Citation omitted.) Cleveland Elec. Illuminating Co. v. PUCO, 76 Ohio St.3d 521, 524

(1996). As long as there is a set of facts consistent with the plaintiff's complaint, which

would allow the plaintiff to recover, the court may not grant a defendant's motion to

dismiss. (Citation omitted.) Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-

Ohio-2480, ¶5.

       {¶22} When ruling on a motion to dismiss, the principles of notice pleading apply,

and a plaintiff is not required to prove his or her case at the pleading stage. York v. Ohio

State Hwy. Patrol, 60 Ohio St.3d 143, 144-45 (1991).

       {¶23} Although Mr. Pugh filed a third document prior to the defendants’ filing of

their motion to dismiss, the trial court only considered Mr. Pugh’s first and second




                                             5
documents in ruling on defendants’ motion. In addition, although Mr. Pugh’s response

to the defendants’ motion contained additional information regarding his claim, our review

is limited to the pleadings. See Celeste v. Wiseco Piston, 151 Ohio App.3d 554, 2003-

Ohio-703, ¶23 (11th Dist.), fn. 2 (“[A]ny admission made by appellant in a post-pleading

memorandum cannot be considered by the trial court or this court”). Finally, Mr. Pugh

has attached an appendix to his brief containing additional documents, but we may not

consider them on appeal. See State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one

of the syllabus (“A reviewing court cannot add matter to the record before it, which was

not part of the trial court proceedings, and then decide the appeal on the basis of the new

matter”).

       {¶24} Thus, our review is limited to determining the sufficiency of Mr. Pugh’s first

and second documents.

                                           Civ.R. 8

       {¶25} The basis of the trial court’s dismissal under Civ.R. 12(B)(6) was that Mr.

Pugh’s first and second documents did not comply with Civ.R. 8.

       {¶26} Ohio is a notice-pleading state.         Beretta U.S.A. Corp., supra, at ¶29.

Pursuant to Civ.R. 8, “[a] pleading that sets forth a claim for relief * * * shall 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.” Civ.R. 8(A).

“Each averment of a pleading shall be simple, concise, and direct. No technical forms of

pleading or motions are required.” Civ.R. 8(E)(1).

       {¶27} The statement of the claim must give the defendant fair notice of the

plaintiff's claim and the grounds upon which it is based. (Citation omitted.) McWreath v.




                                               6
Cortland Bank, 11th Dist. Trumbull No. 2010-T-0023, 2012-Ohio-3013, ¶38. Outside of

a few exceptions, a complaint need not contain more than “brief and sketchy allegations

of fact to survive a motion to dismiss under the notice pleading rule.” (Citation omitted.)

Id.

       {¶28} Further, “[a]ll pleadings shall be so construed as to do substantial justice.”

Civ.R. 8(F). According to the Supreme Court of Ohio, “[t]he spirit of the Civil Rules is the

resolution of cases upon their merits, not upon pleading deficiencies. (Citations omitted.)

State ex rel. Huntington Ins. Agency, Inc. v. Duryee, 73 Ohio St.3d 530, 533 (1995).

Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints

are subject to dismissal. Willoughby Supply Co., Inc. v. Villhauer, 11th Dist. Lake No.

2017-L-110, 2018-Ohio-2077, ¶19, quoting Leichtman v. WLW Jacor Communications,

Inc., 92 Ohio App.3d 232, 234 (1st Dist.1994).

       {¶29} The trial court properly determined that Mr. Pugh’s first document, which it

construed as a complaint, did not comply with Civ.R. 8(A). A review of this document

indicates Mr. Pugh is incarcerated at the Lake Erie Correctional Institution, and the

defendants are prison officials. However, Mr. Pugh did not set forth any type of claim for

relief or a demand for judgment as required by Civ.R. 8(A). Rather, he requested a finding

of indigency, a jury, and “possible negotiations.”

       {¶30} By contrast, Mr. Pugh’s second document, which the trial court construed

as an amended complaint, complied with the liberal pleading requirements of Civ.R. 8(A).

Mr. Pugh alleged that the defendants “neglected * * * to come forth with his property,”

“slandered” and “stole” his “personal property,” placed him “in isolation,” and failed to “give

back” his “private documents” and “property of vital value,” which he described at his “life’s




                                              7
work,” and for which alleged conduct he sought damages. A liberal construction of Mr.

Pugh’s amended complaint indicates Mr. Pugh sought monetary damages against prison

officials for allegedly taking his personal property without legal justification.          This

constitutes a claim for relief and a demand for judgment, as required by Civ.R. 8(A).

       {¶31} The fact that Mr. Pugh’s second document may have been inartfully drafted

does not constitute a violation of Civ.R. 8(A). Federal courts have held that under

Fed.R.Civ.P. 8, which contains similar language and provisions to Civ.R. 8, the objective

is not to determine “whether * * * the averments in the paper pleadings have been artfully

or inartfully drawn.” 5 Wright & Miller, Fed. Prac. & Proc. Civ., Section 1286 (3d Ed.).

Instead, courts are “obligated to make a determined effort to understand what the pleader

is attempting to set forth and to construe the pleading in his or her favor[.]” Id.

       {¶32} For example, in Ashiegbu v. Purviance, 76 F.Supp.2d 824 (S.D.Ohio 1998),

aff'd, 194 F.3d 1311 (6th Cir.1999), the U.S. District Court for the Southern District of Ohio

held that “[a] court should make a reasonable attempt to read the pleadings to state a

valid claim on which the plaintiff could prevail, despite the plaintiff's failure to cite proper

legal authority, his confusion of various legal theories, his poor syntax and sentence

construction, or his unfamiliarity with the pleading requirements.” Id. at 828.

       {¶33} In addition, although Mr. Pugh’s second document is entitled a “motion” and

his allegations are set forth in a “memorandum,” these defects are not fatal. Pleadings

should be judged by the quality of their substance rather than according to their form or

label. 5 Wright & Miller at Section 1286; Torres v. Miami-Dade Cty., 734 Fed.Appx. 688,

691 (11th Cir.2018) (“courts must sometimes look beyond the labels used in a pro se

party’s complaint and focus on the content and substance of the allegations”).




                                               8
       {¶34} For example, in King v. Ricerca Biosciences LLC, 11th Dist. Trumbull No.

2005-L-068, 2006-Ohio-2146, we held that a trial court should have construed a pro se

litigant’s “motion to reinstate case” as a complaint, since “pleadings shall be construed as

to do substantial justice,” and because the “spirit of the civil rules is to decide cases on

their merits instead of procedural deficiencies[.]” Id. at ¶17-18, citing Civ.R. 8(F) and Cero

Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82 (1960), paragraph one of the

syllabus.

       {¶35} For similar reasons, the Fourth District Court of Appeals, in Highland Cty.

Bd. of Commrs. v. Fasbender, 4th Dist. Highland No. 98CA24, 1999 WL 595359 (July 28,

1999), held that a trial court should have construed a pro se litigant’s “affidavit” as an

answer. Id. at *6.

       {¶36} Federal courts, including the U.S. Supreme Court, have also recognized

this principle. In Schlesinger v. Councilman, 420 U.S. 738 (1975), the Supreme Court

held that motions for a temporary restraining order and a preliminary injunction and a

supporting affidavit and briefs, although not formally denominated a complaint, were

adequate to apprise petitioners of the nature of the claim. Id. at 742, fn. 5.

       {¶37} In Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d

619 (6th Cir.2002), the Sixth Circuit held that courts should “discard[] labels in an inartfully

drafted complaint in favor of complaint's reasonable meaning,” because the “fundamental

tenor of the Rules is one of liberality rather than technicality.” (Citations omitted.) Id. at

632, fn. 8.

       {¶38} In this case, the trial court properly construed Mr. Pugh’s second document

as an amended complaint and disregarded its label and headings.




                                               9
       {¶39} The defendants argue that Mr. Pugh did not state any “operative facts,” such

as “what was allegedly stolen or slandered, when it was stolen or slandered, and by

whom.”

       {¶40} Civ.R. 8 does not require this level of detail. Prior to Ohio’s adoption of the

Civil Rules, litigants filed a “petition” containing “a statement of facts constituting a cause

of action in ordinary and concise language.” 1970 Staff Notes to Civ.R. 8. The statement

of a claim under Civ.R. 8(A) is far less than a statement of facts constituting a cause of

action. Knuckles v. Maresh, 8th Dist. Cuyahoga No. 45713, 1983 WL 5589, *2 (July 28,

1983), citing Stephens v. Boothby, 40 Ohio App.2d 197, 198 (3d Dist.1974). Rather, the

grounds creating the statement of a claim under Civ.R. 8(A) may be stated in relatively

broad, general terms. Id., citing Stephens at 198. As the Supreme Court of Ohio has

recognized, Ohio law does not ordinarily require a plaintiff to plead operative facts with

particularity. Beretta U.S.A. Corp., supra, at ¶29.

       {¶41} In the event the defendants were genuinely unable to formulate an answer,

their recourse was to move for a more definite statement under Civ.R. 12(E) (“If a pleading

to which a responsive pleading is permitted is so vague or ambiguous that a party cannot

reasonably be required to frame a responsive pleading, he may move for a definite

statement before interposing his responsive pleading. The motion shall point out the

defects complained of and the details desired”); see Knuckles, at *3.

       {¶42} Further, simplified notice pleading relies on liberal discovery rules and

summary judgment motions to define disputed facts and to dispose of nonmeritorious

claims. (Citation omitted.) Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-

7042, ¶5 (4th Dist.). As such, a future motion for summary judgment may be the proper




                                              10
vehicle in the event Mr. Pugh’s claim lacks merit. See Knuckles at *3; see, e.g., Brown

v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-891, 2013-Ohio-4207, ¶30

(holding the trial court did not err in granting summary judgment against inmate who filed

lawsuit against a prison and certain employees alleging wrongful destruction of his

property).

       {¶43} The defendants also argue that Mr. Pugh stated only “vague legal

conclusions.”

       {¶44} Civ.R. 8 does not make a distinction between “facts” and “legal

conclusions.” Under Ohio’s prior “fact” pleading system, “the form of the language” was

“all important,” forcing litigants to “steer a narrow, indefinable course between pleading

‘conclusions of law’ on the one hand and ‘evidence’ on the other in order to escape a

demurrer, a motion to strike, or a motion to make definite and certain[.]” 1970 Staff Notes

to Civ.R. 8. Under Civ.R. 8(A), “much less emphasis is placed on the form of the language

in the complaint[.]” Id. “[D]istinctions between ‘facts,’ ‘conclusions of law,’ and ‘evidence’

[have been] minimized[.]” Id.

       {¶45} Further, the defendants’ proposed distinction between factual and legal

conclusions originates from Supreme Court of Ohio cases involving whether allegations

were sufficient to survive a motion to dismiss for failure to state a claim, not whether Civ.R.

8 pleading standards were met. See Mitchell, supra, at 193 (“Unsupported conclusions

* * * are not taken as admitted by a motion to dismiss and are not sufficient to withstand

such a motion”). (Emphasis sic.)

       {¶46} In any event, while Mr. Pugh’s amended complaint contains conclusory

statements (e.g., “reckless unprofessional misconduct,” “intent for theft with blaintant [sic]




                                              11
deception,” and “disregard of laws”), it also contains descriptions of the defendants’

alleged conduct (e.g., the defendants “neglected * * * to come forth with his property,”

“slandered” and “stole” his “personal property,” placed him “in isolation,” and failed to “give

back” his “private documents” and “property”).

       {¶47} The defendants cite the Eighth District’s decision in Tuleta v. Med. Mut. of

Ohio, 8th Dist. Cuyahoga No. 100050, 2014-Ohio-396, in support of their argument that

Mr. Pugh’s complaint and amended complaint did not comply with Civ.R. 8.

       {¶48} In Tuleta, the chief of police for the city of Cleveland appealed a trial court’s

order denying his motion to dismiss, arguing that he was immune from liability under R.C.

Chapter 2744 as an employee of a political subdivision. Id. at ¶1, 33. The Eighth District

determined that the plaintiff could not escape immunity by making “bald claims of wanton

and/or reckless misconduct” and must “allege some operative facts concerning the

employee.” Id. at ¶38.

       {¶49} The Tuleta court appears to have applied some type of heightened pleading

standard in the context of sovereign immunity. In this case, the defendants’ motion to

dismiss was not based on sovereign immunity, so the Tuleta court’s application of Civ.R.

8 in that context is not applicable.

       {¶50} We conclude that Mr. Pugh’s amended complaint complied with the liberal

pleading requirements of Civ.R. 8(A).

                                       Civ.R. 12(B)(6)

       {¶51} As indicated, Mr. Pugh’s amended complaint sought monetary damages

against prison officials for allegedly taking his personal property without legal justification.




                                              12
       {¶52} The amended complaint was sufficient to withstand a motion to dismiss

because it is not clear that Mr. Pugh could prove no set of facts entitling him to relief.

Cleveland Elec. Illuminating Co., supra, at 524. In fact, it appears prison inmates regularly

file claims against their institutions or prison officials relating to the handling of their

personal property. See, e.g., Brown, supra, at ¶2 (involving an inmate’s lawsuit against

a prison and certain employees alleging wrongful destruction of his property); Triplett v.

S. Ohio Corr. Facility, 10th Dist. Franklin No. 06AP-1296, 2007-Ohio-2526, ¶7 (collecting

cases involving inmates’ property).

       {¶53} The defendants argue that even if Mr. Pugh’s pleadings are liberally

construed, he failed to state a claim.         The cases the defendants cite are all

distinguishable.

       {¶54} For instance, in Lewis v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin

No. 93AP-1033, 1993 WL 524925 (Dec. 16, 1993), the Tenth District held that a trial court

did not err in finding that an inmate’s complaint demanding damages for the failure of the

Ohio Department of Rehabilitation and Correction and prison officials to provide legal

assistance, in addition to a law library, did not state a claim upon which relief can be

granted. Id. at *2. However, the basis of the court’s decision was that the U.S. Supreme

Court previously held that inmates were not constitutionally guaranteed the right to

assistance beyond a law library. Id. at *1.

       {¶55} Similarly, in In re Adoption of K., 6th Dist. Wood No. WD-18-018, 2018-

Ohio-3082, the Sixth District affirmed a trial court’s denial of a grandfather’s motion to

intervene in a stepparent’s pending adoption of his grandchild because, even after




                                              13
liberally construing the grandfather’s pleading, he did not have a constitutional or statutory

right of association with his grandchild. Id. at ¶11-12.

       {¶56} The defendants also cite Weaver v. Carson, 62 Ohio App.2d 99 (8th

Dist.1979), where the Eighth District held that a pro se litigant did not sufficiently allege

two additional facts that it deemed necessary to assert a claim that a lawyer’s malpractice

caused a criminal conviction. Id. at 100. However, the Weaver court did not discuss

Civ.R. 8, and the Supreme Court of Ohio subsequently overruled its holding. See Krahn

v. Kinney, 43 Ohio St.3d 103, 106 (1989).

       {¶57} In construing the allegations in the amended complaint in a light most

favorable to Mr. Pugh, we find his claim was sufficiently pled pursuant to Civ.R. 8(A) to

survive a Civ.R. 12(B)(6) motion to dismiss.

       {¶58} Mr. Pugh’s sole assignment of error has merit.

       {¶59} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is reversed and remanded for further proceedings consistent with this

opinion.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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