[Cite as Gomez v. Noble Cty. Children Servs., 2010-Ohio-1538.]
                               STATE OF OHIO, NOBLE COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


JOHN PAUL GOMEZ, et al.,                          )
                                                  )        CASE NO. 09 NO 361
        PLAINTIFFS-APPELLANTS,                    )
                                                  )
        - VS -                                    )              OPINION
                                                  )
NOBLE COUNTY CHILDREN                             )
SERVICES, et al.,                                 )
                                                  )
        DEFENDANTS-APPELLEES.                     )


CHARACTER OF PROCEEDINGS:                                  Civil Appeal from Common Pleas
                                                           Court, Case No. 2008-0021.


JUDGMENT:                                                  Affirmed in Part, Reversed in Part
                                                           and Remanded.


APPEARANCES:
For Plaintiffs-Appellants:                                 John Paul Gomez, Pro-se
                                                           318 Moon Clinton Road
                                                           Unit A-10
                                                           Moon Township, OH 15105


For Defendants-Appellees:                                  Attorney Randall Lambert
                                                           215 South Fourth Street
                                                           Ironton, OH 45638


JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                           Dated: March 31, 2010
                                                                                       -2-


DeGenaro, J.
      {¶1}     This timely appeal comes for consideration upon the record in the trial court
and the parties' briefs. Pro-se Appellants, John Paul Gomez, with his children, N.G. and
E.G., appeal the March 23, 2009 decision of the Noble County Court of Common Pleas
which dismissed Gomez's complaint pursuant to the Civ.R. 12(B)(6) motion filed by
Appellees, Noble County Children Services, Noble County Commissioners, Noble County
and various employees.
      {¶2}     Gomez argues on appeal that the trial court erroneously dismissed his
complaint because Gomez adequately pleaded failure to report child abuse and the
commission of malicious, reckless or wanton acts during the investigation of Gomez’s
child abuse allegation under R.C. 2151.421, and violation of Gomez's Fourth and
Fourteenth Amendment rights under Section 1983, Title 42, U.S. Code. Gomez further
contends that he adequately indicated all actors' exemption from liability immunity under
R.C. 2744.01 et seq.
      {¶3}     Gomez's claims against the government entities, as well as his claims
pursuant to Section 1983, are not actionable in this case. However, because the
individual employees of a government subdivision could possibly be held liable for the
alleged injury to Gomez’s children after acting in a malicious, reckless or wanton manner
during the investigation of Gomez’s child abuse allegation, Gomez's pleadings were
sufficient on that particular claim. Accordingly, the trial court's decision should be
affirmed in part, reversed in part, and remanded for further proceedings.
                             Facts and Procedural History
      {¶4}     On January 25, 2008, Gomez filed a complaint naming Noble County
Children’s Services, its employees Donna Boyd and Kelly Clark, and Noble County
Commissioners, John Carter, Charles Cowgill, and Virgil Thompson all as defendants.
Gomez's original complaint states that Appellees failed to report his daughter as an
abused child, and failed to perform their duties as mandated by law.
      {¶5}     According to the complaint, Gomez requested a civil protection order on
June 26, 2006 against Timothy Dyer, the boyfriend of the mother of Gomez's children,
                                                                                     -3-


after Gomez witnessed his daughter mimicking sexual acts. The request was denied, but
Children Services was assigned to conduct an investigation. On July 14, 2007, Gomez
noticed belt prints on his daughter's back, brought her to the hospital, and reported the
physical abuse to Children Services. At some date unspecified in the complaint, Children
Services concluded that the report of abuse was unsubstantiated.           At some later
unspecified date, Judge Nau limited Gomez's visitation rights to his children.
       {¶6}   According to the docket, none of the Appellees filed an answer to Gomez's
complaint. On March 7, 2008, Appellees filed a Civ.R. 12(B)(6) motion to dismiss,
arguing that Gomez failed to state any claim that would qualify as an exception to
Appellees' general immunity from liability as a political subdivision. On May 2, 2008,
Gomez filed a request for leave to file an amended complaint.
       {¶7}   Gomez sought to have Judge Nau disqualified from his case. Gomez filed
an affidavit of disqualification with the Ohio Supreme Court, which Chief Justice Moyer
denied on February 8, 2008. However, Judge Nau voluntarily recused himself from the
case on March 13, 2008.
       {¶8}   On May 12, 2008 the trial court held a hearing on Appellees' motion to
dismiss. The parties conceded that Children Services was performing a governmental
function. Gomez conceded that his complaint did not specifically address any of the
employees of the Noble County Commissioners that were individually named in his
complaint. The trial court orally granted leave for Gomez to amend his complaint.
       {¶9}   On May 13, 2008, Gomez filed a motion requesting that the trial court issue
findings of fact and conclusions of law at the point when it would enter judgment on the
motion to dismiss. On May 16, 2008, the trial court ordered both parties to submit
proposed findings of fact and conclusions of law. Neither party did so at any point in the
proceedings below.
       {¶10} Gomez filed an amended complaint on May 27, 2008, adding Noble County,
Mindy Harding and Kristine Shoeppner, employees of Children Services, as additional
defendants. Gomez also alleged that the Defendants acted in a malicious, reckless or
wanton manner during the performance of their statutory duty to investigate reports of
                                                                                           -4-


child abuse, that the Defendants violated the Plaintiffs’ Fourth and Fourteenth
Amendment rights, and that the children continued to be abused up to the present date.
On June 16, 2008, Children Services filed an answer to the amended complaint.
Included in its answer was a renewed claim that the amended complaint failed to state a
claim upon which relief could be granted. As an additional defense, Children Services
stated that no exceptions to immunity from liability under R.C. 2744.02 or R.C. 2744.03
applied to any of the named defendants.
       {¶11} On February 25, 2009, the trial court held another hearing on Gomez's
amended complaint and Children Services's motion to dismiss. Counsel presented legal
arguments on behalf of Appellees, and Gomez argued pro-se. No sworn testimony was
presented regarding the facts of Gomez's claims.
       {¶12} On March 23, 2009, the trial court filed a judgment entry granting Appellees'
motion, dismissing all outstanding motions by Gomez, and dismissing Gomez's complaint.
The trial court found that none of the exceptions to government subdivision immunity from
tort liability applied in this case, and concluded that all of the government subdivisions
and employees identified in Gomez's amended complaint were immune from liability. The
trial court specifically noted that "this action is a result of a claim of child abuse which was
investigated by the proper authorities to whom it was directed. Those authorities, in their
discretion, determined that the child abuse complaint was unsubstantiated and took no
action. This court can find no reason to believe that the employees of Noble County
acted outside the scope of their authority or to find any other reason to impose liability
upon them." Though the trial court did not address the merits of Gomez's Section 1983
claim, the trial court disposed of the claim by dismissing Gomez's complaint in its entirety.
       {¶13} On April 13, 2009, Gomez filed his notice of appeal and a motion for stay of
execution. On April 29, 2009, this court denied Gomez's motion to stay.
                                 Civ.R. 12(B)(6) Dismissal
       {¶14} In his sole assignment of error, Gomez asserts:
       {¶15} "The trial court erred by failing to construe the factual allegations set forth in
plaintiff's complaint as true, and failed to draw all reasonable inferences in light most
                                                                                         -5-


favorable to plaintiffs; thus, abused its discretion granting defendants' motion to dismiss
contrary to Ohio's Civil Rule 12(B)(6)."
       {¶16} Gomez contends that he set forth a cause of action upon which relief could
be granted pursuant to R.C. Chapter 2744 and Section 1983, Title 42, U.S. Code. As
Appellees point out, R.C. Chapter 2744 does not create a right of action, and only
addresses immunity from certain causes of action. However, a fair interpretation of
Gomez's argument on appeal is that it addresses the effect of R.C. Chapter 2744 on the
cause of action pursuant to a breach of R.C. 2151.421 duties and subsequent injury that
Gomez pleaded in the proceedings below.
       {¶17} Dismissal of a complaint for failure to state a claim upon which relief can be
granted is appropriate if, after all factual allegations of the complaint are presumed true
and all reasonable inferences are made in favor of the nonmoving party, it appears
beyond doubt that the nonmoving party can prove no set of facts entitling him to the
requested relief. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d
420, at ¶13. A Civ.R. 12(B)(6) motion to dismiss is procedural, and tests the sufficiency
of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d
545, 548, 1992-Ohio-73, 605 N.E.2d 378. In resolving a Civ.R. 12(B)(6) motion to
dismiss, a court must confine its review to the allegations contained in the complaint.
Butler v. Jordan, 92 Ohio St.3d 354, 356, 2001-Ohio-204, 750 N.E.2d 554, fn. 4.
Whether a trial court properly granted a motion to dismiss for failure to state a claim
presents a question of law and is therefore subject to a de novo review by this Court.
Perrysburg Twp. V. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, at ¶5.
       {¶18} As an initial matter, although the lion’s share of the debate in this appeal is
focused on immunity from liability under the Political Subdivision Tort Liability Act, we
must first determine whether Gomez has adequately pleaded a tortious act from which
the various Appellees may be found liable or immune. This becomes difficult as Gomez,
a pro se litigant, makes many incorrect statements of law. However, Ohio is a notice
pleading state, and a plaintiff’s claim is only required to set forth the operative facts that
give fair notice to the defendant of the nature of the action. Civ.R. 8. A plaintiff is not
                                                                                        -6-


required to correctly explain the meaning of the law and the extent to which it creates
liability for any defendant in order to maintain compliance with Civ.R. 8. Illinois Controls,
Inc. v. Langham, 70 Ohio St.3d 512, 526, 1994-Ohio-99, 639 N.E.2d 771.
       {¶19} Gomez has included in his pleadings an assertion that the Appellees had
various duties pursuant to R.C. 2151.421. The amended complaint asserts that the
Appellees breached these duties, among other reasons, by acting in a malicious, reckless
or wanton manner during the investigation of Gomez’s child abuse report. The amended
complaint also alleges that Appellee’s actions “unreasonably compromis[ed] the safety
and protection of [Gomez’s] children from abuse,” and “as a result, both [Gomez’s]
children are being abused by their step-father without redress up to date.” (Amended
Complaint, ¶40, 53). Thus, Gomez’s pleadings include the allegation that Appellees had
a duty, that they breached that duty, and that the children were injured as a result. These
allegations are enough to satisfy Ohio’s notice pleading for a negligence claim. See
Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472
N.E.2d 707. Thus Gomez has adequately pleaded a cause of action.
       {¶20} Gomez raised several issues in his amended complaint, all of which must
be reviewed for their sufficiency: (1) Whether any applicable party could be liable under
Section 1983, Title 42, U.S. Code for limiting Gomez's visitation of his children; (2)
Whether any of the named parties could be liable for failure to report child abuse under
R.C. 2151.421(A); (3) Whether any of the government subdivisions could be liable for
failure to investigate child abuse under R.C. 2151.421(F) and the immunity exception for
express provisions of liability under R.C. 2744.02(B)(5); and, (4) Whether any of the
named employees, as individuals, could be liable for failure to investigate child abuse
under R.C. 2151.421(F) due to express statutory liability, acting outside the scope of
employment, or if the failure to investigate is with malicious purpose, bad faith, or in a
wanton or reckless manner, pursuant to R.C. 2744.03(A)(6). We will review each of these
issues in turn.
                                       Section 1983
       {¶21} First, an action under Section 1983 alleges that the claimant had been
                                                                                          -7-


deprived of a Constitutional right by a person acting under color of law. The pertinent part
of Section 1983, Title 42, U.S. Code states:
       {¶22} "Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State * * *, subjects, or causes to be subjected, any citizen of
the United States * * * to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress * * *."
       {¶23} Federal courts do not have exclusive jurisdiction to remedy this deprivation.
Will v. Michigan Dept. of State Police (1989), 491 U.S. 58, 66, 109 S.Ct. 2304, 105
L.Ed.2d 45. Therefore, it is possible for Gomez to raise such a claim in the court below.
To survive a Civ.R. 12(B)(6) motion, Gomez's complaint must include two elements: (1)
the conduct must be committed by a person acting under color of state law, and (2) the
conduct must deprive the plaintiff of a fundamental federal right. 1946 St. Clair Corp. v.
City of Cleveland (1990), 49 Ohio St.3d 33, 34, 550 N.E.2d 456. If either one of these
elements is not present, Gomez’s claim must fail.
       {¶24} Gomez's complaint asserts that Harding of Children Services asked Gomez
to complete a psychological evaluation, and that Judge Nau limited Gomez's visitation
rights to his children so that he was only able to have supervised visits for a temporary
period. Gomez stated in his complaint that these actions violated his and his children's
Fourth and Fourteenth Amendment rights.
       {¶25} The Fourth Amendment, which protects individuals from unreasonable
searches and seizures, does not have any applicability to Gomez's claim. Gomez is
probably asserting a violation of his fundamental right to the care, custody and
management of his children under the Fourteenth Amendment. Troxel v. Granville
(2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49; Santosky v. Kramer (1982), 455
U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.
       {¶26} Gomez's complaint does not indicate what misfeasance Harding carried out
apart from asking Gomez to take a psychological test. The making of such a request
does not constitute a deprivation of Gomez’s fundamental right to the custody and care of
                                                                                        -8-


his children. The only other action identifiable as an alleged Constitutional deprivation is
the child visitation order, which limited Gomez to having supervised visits with his children
for some temporary period of time. Gomez does not find fault with any previous order
designating him the non-residential parent, or previous orders or agreements regarding
Gomez’s visitation schedule with his children. The only event mentioned in the complaint
is a change from what we presume to be a standard visitation schedule to one carried out
under the supervision of Children Services. Such an order does not terminate Gomez’s
previous rights to visit his children, and only adds the requirement that they be
supervised. The presence of Children Services during Gomez’s visitation with his
children did not deprive him of the right to care for or manage his children.
       {¶27} Gomez pleaded no set of facts indicating that any of the Appellees had
deprived Gomez of a fundamental federal right, thus a Civ.R. 12(B)(6) dismissal was
appropriate for this claim.
                                    R.C. 2151.421(A)
       {¶28} Second, Gomez's complaint alleges that Children Services and its
employees were liable for failure to report the abuse of Gomez's child. Gomez appears to
be arguing that Children Services was obligated to report Gomez's report to the police.
       {¶29} Pursuant to R.C. 2151.421(A)(1)(a), certain individuals who are “acting in an
official or professional capacity and know, or has reasonable cause to suspect based on
facts that would cause a reasonable person in a similar position to suspect, that a child”
has or will be abused or neglected, must immediately report such knowledge or
reasonable suspicion to “the public children services agency or a municipal or county
peace officer * * *.”   Applicable individuals who violate this requirement are expressly
“liable for compensatory and exemplary damages to the child who would have been the
subject of the report that was not made.” R.C. 2151.421(M).
       {¶30} Before entering an analysis of the Political Subdivision Tort Liability Act, we
note that it is well established that a "children services agency and its employees, upon
receipt of a case referral, do not have a duty under R.C. 2151.421(A)(1)(a) to cross-report
the case to a law-enforcement agency and are immune from liability for failing to do so.
                                                                                        -9-


O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, at paragraph
one of the syllabus. The Ohio Supreme Court also explained that a children services
agency's duty to investigate a report of child abuse pursuant to R.C. 2151.421(F) also
does not create an automatic duty to cross-report the case to the police. Id. at ¶56.
       {¶31} Gomez's argument regarding the reporting aspect of R.C. 2151.421(A) fails
as a matter of law. A Civ.R. 12(B)(6) dismissal was therefore appropriate for this claim.
However, although the express liability of R.C. 2151.421(A) & (M) is not involved, the duty
to investigate pursuant to R.C. 2151.421(F) may eventually obligate Children Services
and its employees to report to the police, as discussed below.
        Governmental Actors and R.C. 2151.421(F) and R.C. 2744.02(B)(5)
       {¶32} Third, Gomez's complaint alleges that Children Services was liable for
failure to investigate the abuse of Gomez's child. Gomez's complaint and arguments
before the trial court seem to concede that the governmental actors fulfilled their initial
duty of responding to the report of child abuse. However, Gomez contended that the
governmental actors blatantly failed to adequately conduct the investigation, to the extent
that they did not perform their statutory duties. For clarity of analysis, the duties and
liability of the government subdivisions will be addressed separately from those of the
individual employees.
       {¶33} The applicable section of R.C. 2151.421(F)(1) states:
       {¶34} "[T]he public children services agency shall investigate, within twenty-four
hours, each report of child abuse or child neglect that is known or reasonably suspected
or believed to have occurred * * * that is referred to it under this section to determine the
circumstances surrounding the injuries, abuse, or neglect or the threat of injury, abuse, or
neglect, the cause of the injuries, abuse, neglect, or threat, and the person or persons
responsible. * * * The public children services agency shall submit a report of its
investigation, in writing, to the law enforcement agency."
       {¶35} In order to determine an exception to the immunity from liability of Children
Services pursuant to the Political Subdivision Tort Liability Act, a three-tiered analysis of
R.C. Chapter 2744 is required:
                                                                                           - 10 -


       {¶36} "The first tier is the general rule that a political subdivision is immune from
liability incurred in performing either a governmental function or proprietary function. * * *
However, that immunity is not absolute. * * *
       {¶37} "The second tier of the analysis requires a court to determine whether any
of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political
subdivision to liability. * * *
       {¶38} "If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no
defense in that section protects the political subdivision from liability, then the third tier of
the analysis requires a court to determine whether any of the defenses in R.C. 2744.03
apply, thereby providing the political subdivision a defense against liability." Colbert v.
Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, at ¶7-9 (internal
citations omitted).
       {¶39} Gomez has conceded that Children Services is a political subdivision and is
thus generally immune from liability. As for the second tier of the analysis, the only
exception that potentially applies to Children Services in this case is R.C. 2744.02(B)(5),
which allows liability "when civil liability is expressly imposed upon the political subdivision
by a section of the Revised Code." However, the Ohio Supreme Court has expressly held
that "[w]ithin the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421
does not expressly impose liability for failure to investigate reports of child abuse."
Marshall v. Montgomery Cty. Children Serv. Bd., 92 Ohio St.3d 348, 2001-Ohio-209, 750
N.E.2d 549, at syllabus. Thus the exception to immunity under R.C. 2744.02(B)(5) does
not apply to Children Services or other named government subdivisions for the purposes
of Gomez's claims.
       {¶40} Because none of the exceptions pursuant to R.C. 2744.02(B) apply, the
defenses and immunities pursuant to R.C. 2744.03 under the third tier of the analysis do
not apply. We infer from Gomez's brief that he is contending that the liability of Children
Services is renewed due to the actions of the employees, pursuant to R.C. 2744.03(A)(6)
(discussed infra). However, the acts of individual employees under R.C. 2744.03(A)(6)
re-establish a government subdivision's immunity to liability, and cannot be used to
                                                                                       - 11 -


establish liability. Wright v. Mahoning Cty. Bd. of Commrs., 7th Dist. No. 08-MA-77, 2009-
Ohio-561, at ¶25. Thus the liability of Children Services would not be re-established, for
example, due to an employee's reckless failure to adequately conduct an investigation of
reported child abuse. O'Toole, supra, at ¶71.
       {¶41} Gomez's complaint did not establish that any of the exceptions to political
subdivision immunity, enumerated in R.C. 2744.02(B), applied to any subdivisions
named.     Gomez's claims against Children Services and the other government
subdivisions fail as a matter of law. A Civ.R. 12(B)(6) dismissal was therefore appropriate
for this portion of Gomez's complaint.
           Employee Actors and R.C. 2151.421(F) and R.C. 2744.03(A)(6)
       {¶42} Fourth, Gomez's complaint alleges that certain individual employees of
Children Services were not immune from liability for failure to investigate a report of child
abuse, pursuant to R.C. 2151.421(F), and R.C. 2744.03(A)(6).
       {¶43} The three-tiered analysis of the Political Subdivision Tort Liability Act for a
political subdivision does not apply in the determination of whether an individual
employee of a political subdivision could be liable for harm caused to Gomez’s children.
Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, at ¶17.
Instead, an employee of a political subdivision is generally immune from liability, unless:
       {¶44} "(a) The employee's acts or omissions were manifestly outside the scope of
the employee's employment or official responsibilities;
       {¶45} "(b) The employee's acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner;
       {¶46} "(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code." R.C. 2744.03(A)(6).
       {¶47} Gomez's complaint contends that all three of these exceptions apply to the
employees responsible for investigating his report of child abuse. The primary contention
within Gomez's complaint is that his children continue to be abused because various
employees breached their duties pursuant to R.C. 2151.421(F) by conducting the child
abuse investigation with malicious purpose, in bad faith, or in a wanton or reckless
                                                                                        - 12 -


manner. In this case, Gomez did not state a cause of action against the individual
employees which would lift immunity pursuant to the exceptions in subparts (a) and (c) of
R.C. 2744.03(A)(6). However, for Civ.R. 12(B)(6) purposes, Gomez has pleaded facts,
which must be taken as true, that indicate an exception to liability under subpart (b).
       {¶48} As for employee liability pursuant to an express statutory imposition of
liability, the Ohio Supreme Court's holding that "[w]ithin the meaning of R.C.
2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 does not expressly impose liability for
failure to investigate reports of child abuse," applies both to government entities and to
individual employees. Marshall, supra. Thus Gomez's complaint against the individual
employees related to R.C. 2744.03(A)(6)(c) fails as a matter of law.
       {¶49} As for employee liability pursuant to an act or omission outside the scope of
employment, the only specific reference to R.C. 2744.03(A)(6)(a) in Gomez's complaint
appears to relate to the failure of Children Services to provide Gomez with a report of
their findings, which is not included in Children Services or its employees' duties pursuant
to the investigatory duties of R.C. 2151.421(F). Thus, immunity cannot be lifted pursuant
to R.C. 2744.03(A)(6)(a). Gomez's remaining claims regarding this section are more
appropriately reviewed in a R.C. 2744.03(A)(6)(b) analysis, because the only other
actions outside the scope of employment that Gomez has alleged were actions involving
bad faith, maliciousness, wantonness, or recklessness in the course of conducting the
investigation into the allegations of abuse.
       {¶50} As for employee liability pursuant to an act or omission with malicious
purpose, in bad faith, or in a wanton or reckless manner, the Ohio Supreme Court has
noted that it is possible to bring a claim against an individual employee for reckless failure
to perform her duties under R.C. 2151.421, and that the employee's general immunity
from liability may be removed by R.C. 2744.03(A)(6)(b). O'Toole, supra, at ¶72.
       {¶51} In O'Toole, the Ohio Supreme Court addressed, among other issues,
whether an employee of a public children services agency was entitled to immunity in the
case of a child who died from abuse after having been reported to the agency. The
opinion specifically examined whether an employee of the agency could be held liable for
                                                                                          - 13 -


his alleged reckless conduct during his investigation of the child abuse report. Id. at ¶70-
92. The Ohio Supreme Court explained as follows:
        {¶52} "Distilled to its essence, and in the context of R.C. 2744.03(A)(6)(b),
recklessness is a perverse disregard of a known risk. * * *
        {¶53} "Recklessness, therefore, necessarily requires something more than mere
negligence. * * * In fact, 'the actor must be conscious that his conduct will in all probability
result in injury.' * * *
        {¶54} "Although the determination of recklessness is typically within the province
of the jury, the standard for showing recklessness is high, so summary judgment can be
appropriate in those instances where the individual's conduct does not demonstrate a
disposition to perversity."
        {¶55} Id. at ¶73-75 (internal citations omitted).
        {¶56} O'Toole concluded that the facts alleged by the complainant regarding the
employee's recklessness were not sufficient to withstand a motion for summary judgment.
Id. at ¶92. Although the claims in O'Toole were not supportable in the context of
summary judgment, the Ohio Supreme Court's analysis indicates that the recklessness
claim was, at a minimum, theoretically possible under the law. Thus, a tort action which
includes a claim that a political subdivision employee engaged in reckless conduct during
his investigation of the child abuse report is a claim upon which relief could be granted.
        {¶57} The discussion in O'Toole indicates that even if an investigation is being or
has been conducted, if an employee breaches his duties pursuant to R.C. 2151.421(F) by
acting recklessly within or in response to that investigation, claims may still be made
against the employee for subsequently resulting injury. O'Toole at ¶72-91, discussing
Grimm v. Summit Cty. Children Servs. Bd., 9th Dist. No. 22702, 2006-Ohio-2411, C.S.
Hahn v. Wayne Cty. Children Servs. (May 9, 2001), 9th Dist. No. 00CA0029, and Jackson
v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 602 N.E.2d 363.
Although O'Toole discussed these three cases for the purpose of demonstrating when a
claim of recklessness may not survive a summary judgment motion, such discussion
indicates that an examination of the facts, which would require examination outside the
                                                                                         - 14 -


pleadings, is necessary to determine such a claim.
       {¶58} Here, we must examine the same issue as that in O'Toole within the context
of Civ.R. 12(B)(6) rather than summary judgment. Minimal notice pleading is generally all
that is required to survive a motion to dismiss under Civ.R. 12(B)(6). Cincinnati v. Beretta
U.S.A. Corp, 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, at ¶29. Gomez was
not required to prove his case at this stage of the proceedings, and the trial court was
obligated to construe all of the material factual allegations in Gomez's complaint as true.
Although Gomez will have to meet the high threshold regarding recklessness as
explained in O'Toole to survive a motion for summary judgment, his pleadings were
technically sufficient to survive a Civ.R. 12(B)(6) motion.
       {¶59} Appellees argue that Gomez's allegations of recklessness constitute an
unsupported conclusion and are mere "magic words" which do not constitute a valid
claim. However, Gomez's complaint claims that Children Services employee Kelly Clark
witnessed the child's injuries and heard the child's explicit reports that the step-father beat
her with a belt. Gomez's complaint alleges that Clark then intentionally created a
fabricated story, stating that the child claimed that a caseworker injured her, all for the
purpose of undermining the child's credibility. The complaint also claims that Clark and
other Children Services workers sent a letter intimidating Gomez for having reported the
child abuse. Gomez alleged in his complaint that his children are still subject to physical
abuse as a result of the employees' reckless failure. Thus the facts contained within
Gomez’s complaint put the defendants on notice of his claims that the Children Services
employees had duties pursuant to R.C. 2151.421(F), that they breached these duties by
failing to appropriately investigate his report of child abuse, that his children continue to
be abused by their stepfather as a result, and that governmental tort liability immunity
does not apply because the employees’ failings were committed with malicious purpose,
in bad faith, or in a wanton or reckless manner. These claims, taken to be true, satisfy
Ohio's notice pleading requirements for the claim that Children Services employees were
liable for injury to the Gomez children upon having recklessly failed to properly conduct an
investigation as required under R.C. 2151.421(F).
                                                                                      - 15 -


       {¶60} As Gomez points out in his brief, the trial court incorrectly stated in its
judgment entry that witnesses were sworn and testimony was given during the final oral
hearing regarding Appellees' motion to dismiss.         This inaccuracy, along with the
articulation in the judgment entry of the trial court's disbelief of Gomez's factual
contentions regarding government employee recklessness, indicates that the trial court
erroneously considered issues of credibility or weight of facts, which is not appropriate in
a Civ.R. 12(B)(6) decision.
       {¶61} Given the foregoing, a claim for a government employee's reckless failure to
adequately investigate a report of child abuse is legally feasible. The trial court's
dismissal was erroneous for this portion of Gomez's complaint.
                                       Conclusion
       {¶62} Gomez's sole assignment of error is partially meritorious. This conclusion
should not be construed to imply any opinion regarding the strength or weakness of
Gomez’s case beyond the very limited context of a Civ.R. 12(B)(6) motion. The trial court
was correct in concluding that Gomez failed to state a claim upon which relief could be
granted for most of his claims. However, the trial court erred in granting Appellees' Civ.R.
12(B)(6) motion for the specific claim related to the reckless conduct of individual
employees of Children Services and subsequent alleged injury to the children as a result.
Gomez's pleadings were technically sufficient to survive a Civ.R. 12(B)(6) motion.
       {¶63} Accordingly, the judgment of the trial court is affirmed in part, reversed in
part, and remanded for further proceedings consistent with this opinion.
Vukovich, P.J., concurs.
Waite, J., concurring in part and dissenting in part with
           concurring in part and dissenting in part opinion.

Waite, J., concurring in part; dissenting in part:


       Because I do not read Appellants’ amended complaint as

stating a claim for negligence, I would affirm the trial court’s

dismissal      of    Appellants’       R.C.     2151.421(F)       cause     of   action.
                                                                     - 16 -


Therefore, I must respectfully dissent as to that portion of the

majority’s decision.

     While it is true that pro se complaints are to be liberally

construed, in Gomez v. Dyer, 7th Dist. No. 07 NO 342, 2008-Ohio-

1523, we stated that, “[p]ro se civil litigants are bound by the

same rules and procedures as those litigants who retain counsel.

They are not to be accorded greater rights and must accept the

results of their own mistakes and errors.”          Id. at ¶46, citing

State v. Gordon, 10th Dist. No. 03AP-490, 2003-Ohio-6558, ¶14.

     Here,   the   majority   goes   to   some   lengths   to   fashion   a

negligence claim from Appellants’ allegations in the amended

complaint.    As I read the amended complaint, Appellants rely

exclusively upon an alleged violation of R.C. 2151.421(F) to state

a claim.   However, under this section no private cause of action

exists.

     In determining whether statutes create a private cause of

action for enforcement, the Ohio Supreme Court has held that a

“statutory policy” may not be implemented by the Ohio courts in a

private civil action absent a clear implication that such a remedy

was intended by the Ohio General Assembly.        Fawcett v. G.C. Murphy

& Co. (1976), 46 Ohio St.2d 245, 249, 348 N.E.2d 144, 147.           Ohio

courts apply a three-part test adopted from Cort v. Ash (1975),

422 U.S. 66, 95 S.Ct. 2080, to determine when a private cause of
                                                                         - 17 -


action arises by implication under a particular statute.                   The

court must consider:        (1) whether the plaintiffs are in a class

for whose special benefit the statute was enacted; (2) legislative

intent, explicit or implicit, either to create or deny a private

cause of action; and (3) the underlying purpose of the legislative

scheme to infer this remedy for the plaintiffs.                   Strack v.

Westfield Cos. (1986), 33 Ohio App.3d 336, 337, 515 N.E.2d 1005,

1006-1007; Elwert v. Pilot Life Ins. Co. (1991), 77 Ohio App.3d

529, 542, 602 N.E.2d 1219, 1228.

     R.C. 2151.421 does create a private right of action for

failure   to    report    child    abuse.   R.C.   2151.421(M)    reads,    in

pertinent part, “[w]hoever violates division (A) of this section

is liable for compensatory and exemplary damages to the child who

would have been the subject of the report that was not made.”

However, the statute clearly does not create a private right of

action    for   failure    to     investigate   reports   of   child   abuse.

Therefore, no matter how their allegations are framed, Appellants

have failed to state a claim upon which relief can be granted

under R.C. 2151.421(F).

     Accordingly, in addition to affirming the trial court’s

decision in all other respects, I would affirm the trial court’s

dismissal of Appellants’ R.C. 2151.421(F) claims against the

county employees because R.C. 2151.421(F) does not create a

private right of action.
