[Cite as Burgin v. Eaton, 2011-Ohio-5951.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

ROBERT K. BURGIN                                     :

        Plaintiff-Appellant                          :            C.A. CASE NO.        24757

v.                                                   :            T.C. NO.   CVF 1100591

OFFICER CRAIG EATON                                  :            (Civil appeal from
                                                                    Municipal Court)
        Defendant-Appellee                    :

                                                     :

                                             ..........

                                             OPINION

                         Rendered on the      18th       day of     November    , 2011.

                                             ..........

ROBERT K. BURGIN, 708 W. Fairview Avenue, Dayton, Ohio 45406
     Plaintiff-Appellant

VICTORIA E. WATSON, Atty. Reg. No. 0061406, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Defendant-Appellee

                                             ..........

DONOVAN, J.

        {¶ 1} This matter is before the Court on the pro se Notice of Appeal of Robert K.

Burgin, filed July 29, 2011. Burgin appeals from the grant of summary judgment in favor

of Deputy Sheriff Craig Eaton of the Montgomery County Sheriff’s Office.

        {¶ 2} On February 7, 2011, Burgin filed a petition in Vandalia Municipal Court,
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Small Claims Division, seeking judgment against Eaton in the sum of $3,000.00. Burgin’s

Statement of Claim provides that he seeks “wages during possession of heroine (sic) case

from 7-19-10 through 11-23-10 after proveing (sic) my innocence from 11-30-09 possession

drug charge.” The municipal court set the matter for a mediation conference.

          {¶ 3} Eaton filed an Answer and a “Motion to Transfer Civil Action from Small

Claims Docket to Regular Docket” on March 15, 2011, “on the grounds that the Defendant

has a good defense to Plaintiff’s claim in that he is immune from liability by virtue of State

and Federal law, and is otherwise not liable herein.” In his motion, Eaton further asked the

court to vacate the scheduled mediation conference. Attached to the Motion is the Affidavit

of Victoria Watson, counsel for Eaton. The affidavit provides that Watson investigated

Burgin’s complaint, and his “alleged incarceration, and thus his claimed lost wages, if true,

were the direct result of the Plaintiff’s failure to appear and otherwise comply with orders

issued by the Montgomery County Court of Common Pleas.” The affidavit states that

Eaton intended to file a motion for summary judgment.

          {¶ 4} On March 17, 2011, the magistrate issued an order which vacated the

mediation date and granted Burgin 14 days to show cause why the matter should not be

transferred to the regular docket. On March 28, 2011, Burgin filed a copy of a letter

addressed to him from a “Senior Producer” of the “Judge Mathis” program, along with a

handwritten note that provides, “I would have made the date of the small claims case much

earlier. Due to another state, JUDGE MATHIS I gave enough time for the Defendant to

understand a few things.” On April 4, 2011, the matter was transferred to the regular

docket.
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       {¶ 5} On May 10, 2011, the municipal court issued a Pre-Trial Order that granted

Eaton until June 3, 2011, to file a motion for summary judgment, and granted Burgin 14

days after the date of filing to respond thereto. The Order provides, “Following receipt of

Plaintiff’s timely filed response, this matter shall be decided by the Court without further

hearing unless otherwise ordered by the Court.”

       {¶ 6} Eaton filed his motion for summary judgment on June 2, 2011, asserting that

he is entitled to immunity under Chapter 2744 of the Ohio Revised Code. Attached to the

motion are the Affidavits of Eaton, and Captain Charles Crosby of the Montgomery County

Sheriff’s Office, who is custodian of the records of the Montgomery County Jail. Multiple

documents are attached to Crosby’s Affidavit.

       {¶ 7} According to Eaton’s Affidavit, on Monday, November 30, 2009, upon

arrival at work and pursuant to office policy, he carefully searched his assigned cruiser,

using a flashlight, for weapons and contraband, including the areas underneath the front and

back seats. Eaton avers that his sergeant then asked him to transport Burgin to the jail since

he had been arrested for criminal trespassing by another deputy. After transporting Burgin

in his assigned cruiser, Eaton averred that he again searched his cruiser, pursuant to policy,

and he retrieved a capsule of heroine from underneath the backseat where Burgin had been

seated. Eaton averred that his sergeant then “approved” a possession charge for Burgin.

Eaton further averred that after Burgin was interviewed by detectives, “the possession of

drugs charge was ‘detective released,’ meaning that Mr. Burgin would not be officially

charged with possession of drugs until lab results were obtained and the charges were

presented to the the Montgomery County Prosecutor’s Office.” Finally, Eaton averred that
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his “next direct contact with Mr. Burgin was when I testified about finding the heroin

capsule in my cruiser at his trial for the possession of drugs charge.”

       {¶ 8} Crosby’s Affidavit authenticates several records concerning Burgin, kept in

the ordinary course of business at the jail, which indicate in part that Burgin arrived at the

jail on November 30, 2009, having been charged with criminal trespassing and possession of

drugs. Crosby further averred that Burgin was released from the Montgomery County Jail

on December 3, 2009, and transported by the Sheriff’s Office to Summit Behavioral

Healthcare by court order on the criminal trespassing charge. Crosby averred that the

possession of drugs charge was “detective released,” and that Burgin did not return to the jail

until July 19, 2010, when he was arrested and taken into custody on two outstanding

warrants, one from the Vandalia Municipal Court and one from the Montgomery County

Court of Common Pleas. Finally, Crosby averred that Burgin was released from the jail on

November 23, 2010, per court order. A copy of Burgin’s May 21, 2010 indictment for

possession of heroin is also attached to the motion.

       {¶ 9} The magistrate issued an order on June 7, 2011, granting Burgin 14 days from

the date of the order to respond to Eaton’s motion for summary judgment. The order directs

Burgin’s attention to Civ.R. 56, and it provides in part that the rule “states that one may not

rest upon the mere allegations or denials of the pleadings but his/her response, by affidavit or

as otherwise provided in the rule, must set forth specific facts showing to the Court that there

is a genuine issue of material fact that necessitates a trial. Any such response must also be

served upon Plaintiff’s attorney. * * *

       {¶ 10} “Following receipt of Defendant’s timely filed response, this matter shall be
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decided by the Court without further hearing unless otherwise ordered by the Court.”

       {¶ 11} Burgin, proceeding pro se, filed multiple documents in response to Eaton’s

motion, which he did not serve upon Eaton.         One document is labeled at the top in

handwriting, “$ The Financial Account $,” and at the bottom it is labeled, “Summery

Judgment” (sic). The document contains handwriting over a printed page that appears to

have been torn from a religious program at “Wayman Chapel.” A second document is a

Dayton Police Department accident form that identifies an accident that occurred in 2005

and lists a defendant and two witnesses. Burgin also filed a printout from an unknown

source identifying Burgin and listing the following offenses with findings of guilty: “open

container alcohol viol,” “injury to personal property,” and “intoxicated and disruptive.”

Burgin further filed a handwritten narrative of events regarding in part the above offenses,

and an “Arrest Inquiry” printout relating to Burgin that also contains a handwritten list of

multiple offenses. Finally, Eaton filed a copy of a portion of a Dayton Police Department

form indicating that Burgin was arrested for possession of drugs in 2002 and for possession

of heroin and criminal trespassing on July 19, 2010.

       {¶ 12} On June 29, 2011, the municipal court sustained Eaton’s motion for summary

judgment.     After summarizing the documents filed by Burgin, the court relied upon

Eaton’s and Crosby’s affidavits and supporting documents in setting forth the facts. The

court noted that Eaton’s immunity is a question of law “properly determined by a Court prior

to trial and preferably through a Motion for Summary Judgment.”       The court determined

that Eaton is immunized from liability arising from the negligent performance of his duties

as a governmental employee, acting within the scope of his employment, and that Burgin
                                                                                            6

accordingly had to demonstrate that Eaton’s acts or omissions were either outside the scope

of Eaton’s employment, or that Eaton’s acts or omissions were malicious, in bad faith, or

done in a wanton or reckless manner. The court further noted that Burgin did not allege that

Eaton acted in bad faith, and it determined that Burgin’s acquittal on the possession charge

does not “automatically entitle [him] to an award of lost wages, if, in fact, he incurred the

same.”

         {¶ 13} The municipal court further noted that, if Burgin intended to state a cause of

action against Eaton for malicious prosecution, the “main component” of which is a lack of

probable cause, Burgin’s May 21, 2010 indictment for possession of heroin is “prima facie

evidence of probable cause.”

         {¶ 14} Burgin asserts three assigned errors which we will consider together. They

are as follows:

         {¶ 15} “1. A WAIVER OF A HEARING CANNOT BE MADE WITHOUT THE

DEFENDANT INTELLIGENTLY UNDERSTANDING THE LEGAL AND ANCILLARY

RAMIFICATIONS OF SUCH A WAIVER.” And,

         {¶ 16} “2.    IT IS NOT IN THE PUBLIC INTEREST TO RESTRICT A

DEFENDANT’S DUE PROCESS RIGHTS TO SUCH A DEGREE AS TO IMPACT

THEIR JOB AND OR FINANCIAL SECURITY.” And,

         {¶ 17} “3. WHETHER IT IS UNCONSCIONABLE FOR A JUDGE TO REFUSE

TO ALLOW A HEARING ON A SMALL CLAIMS TRANSFERRED TO THE REGULAR

DOCKET FROM A FELONY RESULTED IN A NON-GUILTY VERDICT IF THE

DEFENDANT DID NOT UNDERSTAND INTELLIGENTLY HIS OR HER WAIVER OF
                                                                                             7

SAID HEARING.”(sic)

       {¶ 18} According to Burgin, “The court will find the defendant did not intelligently

waive his right to an attorney nor did he intelligently understand the ramifications of his

actions. The court will also find that the trail (sic) court commited (sic) reversible error

when it refused to allow a plaintiff a chance to present his case in light of the extenuating

circumstances and this unconscionable action is cause for the decision of the trail (sic) to be

reversed.”

       {¶ 19} We initially note that “[l]itigants who choose to proceed pro se are presumed

to know the law and correct procedure, and are held to the same standard as other litigants.”

 Yocum v. Means, Darke App. No. 1576, 2002-Ohio-3803. A litigant proceeding pro se

“cannot expect or demand special treatment from the judge, who is to sit as an impartial

arbiter.” Id. (Internal citations omitted).

       {¶ 20} “Civ. R. 56(C) provides that summary judgment may be granted when the

moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving

party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly

in favor of the nonmoving party, reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is made.

(Internal citations omitted). Our review of the trial court’s decision to grant summary

judgment is de novo.” Cohen v. G/C Contracting Corp., Greene App. No. 2006 CA 102,

2007-Ohio-4888, ¶ 20.

       {¶ 21} Initially, we note, as Eaton asserts, that R.C. 1925.10(B)1 authorizes the court


             1
             “In the discretion of the court, a case duly entered on the docket of the
                                                                                              8

to transfer a matter filed in the small claims division to the court’s regular docket.

       {¶ 22} In his assigned errors, Burgin appears to contend that he was entitled to an

attorney and a hearing on Eaton’s motion for summary judgment. “In State ex rel. Jenkins

v. Stern (1987), 33 Ohio St.3d 108, 110, * * *, the Ohio Supreme Court noted that ‘[t]here is

no generalized right of counsel in civil litigation.’ The Supreme court noted that:

       {¶ 23} “‘ * * * [C]ertain distinctions can be made between the rights of civil litigants

and those of criminal defendants. A criminal defendant’s right to counsel arises out of the

sixth amendment, and includes the right to appointed counsel when necessary. * * * A civil

litigant’s right to retain counsel is rooted in fifth amendment notions of due process; the

right does not require the government to provide lawyers for litigants in civil matters. * * *

A criminal defendant faced with a potential loss of his personal liberty has much more at

stake than a civil litigant asserting or contesting a claim for damages, and for this reason the

law affords greater protection to the criminal defendant’s rights.’

       {¶ 24} “Intermediate appellate courts, including our own, have followed these

principles, and have found no constitutional right to representation in cases involving

individual civil litigants.” (Internal citations omitted).     Cincinnati Ins. Co. v. Schaub,

Montgomery App. No. 22419, 2008-Ohio-4729, ¶ 18-20. Accordingly, while Eaton was

entitled to retain representation below, he was not entitled to have counsel appointed for

him.


   small claims division may be transferred to the regular docket of the court upon
   the motion of a party against whom a claim * * * is instituted * * *. A motion filed
   under this division shall be accompanied by an affidavit stating that a good
   defense to the claim exists, setting forth the grounds of the defense, and setting
   forth the compliance of the party * * * with any terms fixed by the court. * * * .”
                                                                                            9

       {¶ 25} Regarding a hearing, “an oral hearing is not required for every summary

judgment motion.” Anania v. Daubenspeck Chiropractic (1998), 129 Ohio App.3d 516,

522. The record reflects that the municipal court did not set a hearing date, but it gave

Burgin notice of the date on which Eaton’s motion would be submitted for decision, thereby

providing a deadline for the filing of Burgin’s memorandum in opposition. The court also

informed Burgin twice that it would not hold a hearing on Eaton’s motion, and Burgin

indicates in his brief that he received the Magistrate’s Order of June 7, 2011, regarding the

submission of Eaton’s motion for decision.

       {¶ 26} Burgin does not contest Eaton’s immunity in his brief, and we conclude that

the trial court properly determined that Eaton, as an employee of the political subdivision of

Montgomery County, is immune from liability on Burgin’s complaint. The question of

immunity is a question of law as the trial court noted. Conley v. Shearer (1992), 64 Ohio

St.3d 284. Pursuant to R.C. 2744.03(A)(6), Eaton “cannot be held personally liable for

acts committed while carrying out his or her official duties unless one of the exceptions to

immunity is established.” Cook v. Cincinnati (1995), 103 Ohio App.3d 80, 90. As the trial

court noted, to establish liability, Burgin had to demonstrate that Eaton’s “acts or omissions

were manifestly outside the scope of [his] employment or official responsibilities,” or “were

with malicious purpose, in bad faith, or in a wanton or reckless manner,” neither of which

situations Burgin alleged.    R.C. 2744.03(A)(6).       In response to Eaton’s motion for

summary judgment, Burgin did not present competent Civ.R. 56 evidence showing that a

genuine issue of material fact existed for trial.   We note that in his brief, Burgin cites to

Baron v. Andolsek, Lake App. No. 2003-L-005, 2004-Ohio-1159, wherein the plaintiff
                                                                                            10

alleged malicious prosecution against a police officer and the Eleventh District, in affirming

the grant of summary judgment in favor of the officer, determined that the plaintiff “failed to

overcome the presumption of probable cause which attached when the grand jury indicted

him.” Id., at ¶ 31.     Baron does not support Burgin’s position, if, as the trial court noted,

Burgin intended to state a cause of action for malicious prosecution. Finally, as Eaton

asserts, Burgin cannot establish that his arrest and incarceration from July, 2010 until

November, 2010 was caused by Eaton’s actions, since Burgin was incarcerated for the

outstanding warrants.

       {¶ 27} Since Eaton established that he was entitled to summary judgment as a matter

of law, Burgin’s three assigned errors are overruled, and the judgment of the trial court is

affirmed.

                                          ..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Robert K. Burgin
Victoria E. Watson
Hon. Cynthia M. Heck
