[Cite as Bruce v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-8132.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Darrell W. Bruce,                                   :

                Plaintiff-Appellant,                :                    No. 16AP-310
                                                                   (Ct. of Cl. No. 2015-00917)
v.                                                  :
                                                              (ACCELERATED CALENDAR)
Ohio Department of Rehabilitation                   :
and Correction,
                                                    :
                Defendant-Appellee.
                                                    :




                                         D E C I S I O N

                                   Rendered on December 13, 2016


                On brief: Darrell W. Bruce, pro se.

                On brief: Michael DeWine,                    Attorney    General,     and
                Timothy M. Miller, for appellee.

                             APPEAL from the Court of Claims of Ohio

BROWN, J.
        {¶ 1} Darrell W. Bruce, plaintiff-appellant, appeals from a judgment of the Court
of Claims of Ohio in which that court granted the motion to dismiss filed by the Ohio
Department of Rehabilitation and Correction ("ODRC"), defendant-appellee.
        {¶ 2} Appellant is an inmate in the custody of ODRC at the Toledo Correctional
Institution. Appellant alleges that, on August 23, 2012, the door to his housing unit closed
on him when he was returning to the unit. The door was being operated by Correctional
Officer Hampton. The door eventually opened, and appellant fell to the ground. Appellant
alleged that he suffered injuries to his back, neck, shoulder, and knee as a result of the
incident. Appellant also alleged that, on August 31, 2012, Hampton again shut the door on
No. 16AP-310                                                                               2

him. Appellant also described several other incidents of the same nature involving
Hampton, during which he narrowly escaped being struck by the door. Appellant filed
informal complaints and grievances with ODRC in an attempt to resolve the problem. He
was prescribed "Zorloft" and Elavil from September to November 2012 to treat his
injuries stemming from the incidents.
       {¶ 3} On October 26, 2015, appellant filed a complaint against ODRC in the Court
of Claims, alleging negligence and cruel and unusual punishment based on the above
incidents.
       {¶ 4} On December 31, 2015, ODRC filed a motion to dismiss, pursuant to Civ.R.
12(B)(1) and (6), asserting the Court of Claims lacked jurisdiction to consider appellant's
constitutional violations, and his negligence claim was barred by the two-year statute of
limitations. On January 19, 2016, appellant filed a motion for leave to file an untimely
complaint pursuant to Civ.R. 6(B)(2).
       {¶ 5} On March 23, 2016, the Court of Claims issued an entry of dismissal, in
which it granted ODRC's motion to dismiss. The Court of Claims found that it lacked
subject-matter jurisdiction over appellant's alleged constitutional violations, and
appellant's negligence claim was barred by the two-year statute of limitations, as he was
injured in August 2012 but did not file his complaint until October 26, 2015. The Court of
Claims also denied appellant's request to grant him leave to file an untimely complaint in
which he sought to toll the statute of limitations based on his short term memory loss due
to his use of prescription drugs from September through November 2012. The Court of
Claims found that even accepting these allegations as true, and tolling the statute of
limitations during such period, his complaint was still filed long after the two-year statute
of limitations had expired. Appellant appeals the judgment of the Court of Claims,
asserting the following assignments of error:
               [I.] THE COURT OF CLAIMS ERRORED BY DISMISSING
               PLAINTIFF['S]   COMPLAINT    WHEN    PLAINTIFF
               PRODUCED "EXCUSABLE NEGLECT."

               [II.] THE COURT OF CLAIMS ERRORED BY DISMISSING
               PLAINTIFF['S] COMPLAINT WITHOU[T] APPLYING "PRO-
               SE" STATUS TO PLAINTIFF['S] COMPLAINT.
No. 16AP-310                                                                                  3

               [III.] THE COURT OF CLAIMS ABUSED ITS DISCRETION
               BY DISMISSING PLAINTIFF['S] COMPLAINT WITHOUT
               APPLYING "SPECIAL CIRCUMSTANCES" TO PLAINTIFF.

       {¶ 6} Appellant argues in his assignments of error that the Court of Claims erred
when it dismissed his action pursuant to Civ.R. 12(B)(1) and (6). In ruling on a Civ.R.
12(B)(1) motion to dismiss for lack of subject-matter jurisdiction, the trial court
determines whether the claim raises any action cognizable in that court. Brown v. Levin,
10th Dist. No. 11AP-349, 2012-Ohio-5768; Robinson v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 10AP-550, 2011-Ohio-713, ¶ 5. However, in making a determination regarding
subject-matter jurisdiction, "[t]he trial court is not confined to the allegations of the
complaint," and "it may consider material pertinent to such inquiry without converting
the motion into one for summary judgment." Southgate Dev. Corp. v. Columbia Gas
Transm. Corp., 48 Ohio St.2d 211 (1976), paragraph one of the syllabus. Subject-matter
jurisdiction involves " 'a court's power to hear and decide a case on the merits and does
not relate to the rights of the parties.' " Robinson at ¶ 5, quoting Vedder v. Warrensville
Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶ 14. We apply a de novo standard when we
review a trial court's ruling on a Civ.R. 12(B)(1) motion to dismiss. Id., citing Hudson v.
Petrosurance, Inc., 10th Dist. No. 08AP-1030, 2009-Ohio-4307, ¶ 12.
       {¶ 7} A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim is
procedural and tests the sufficiency of the complaint. Volbers-Klarich v. Middletown
Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11, citing Assn. for Defense of
Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). Dismissal for
failure to state a claim is proper if, after all factual allegations are presumed to be true and
all reasonable inferences are made in favor of the non-moving party, it appears beyond
doubt from the complaint that the plaintiff could prove no set of facts warranting the
requested relief. State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5;
O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. In
considering a motion to dismiss under Civ.R. 12(B)(6), the court looks only to the
complaint to determine whether the allegations are legally sufficient to state a claim.
Springfield Fireworks, Inc. v. Ohio Dept. of Commerce, 10th Dist. No. 03AP-330, 2003-
Ohio-6940, ¶ 12. We review the dismissal of a complaint pursuant to Civ.R. 12(B)(6)
No. 16AP-310                                                                                 4

under a de novo standard. Woods v. Riverside Methodist Hosp., 10th Dist. No. 11AP-689,
2012-Ohio-3139, ¶ 9.
       {¶ 8} In the present case, appellant argues in his first assignment of error that the
trial court erred when it dismissed his complaint when he demonstrated excusable neglect
for failing to file it within the two-year statute of limitations included in R.C. 2743.16(A).
In support, appellant cites Civ.R. 6(B)(2), which provides, in pertinent part:
               [T]he court for cause shown may at any time in its discretion
               * * * upon motion made after the expiration of the specified
               period permit the act to be done where the failure to act was
               the result of excusable neglect.

       {¶ 9} Whether the excusable neglect standard has been satisfied is based on the
particular facts and circumstances of each case. Marion Prod. Credit Assn. v. Cochran,
40 Ohio St.3d 265, 271 (1988). "It must appear from the record that the successfully
moving party made a showing of excusable neglect sufficient to support the trial court's
finding to that effect." Id. (finding excusable neglect in failing to reply to a counterclaim
until four years after it was due). The trial court must take into account the surrounding
facts and circumstances in assessing whether neglect was excusable. Id. The trial court's
determination of excusable neglect should not be disturbed on appeal unless an abuse of
discretion is shown. Id. "[T]he inaction of a defendant is not 'excusable neglect' if it can be
labeled as a 'complete disregard for the judicial system.' " Kay v. Marc Glassman, Inc., 76
Ohio St.3d 18, 20 (1996), quoting GTE Automatic Elec., Inc., v. ARC Industries, Inc., 47
Ohio St.2d 146, 153 (1976).
       {¶ 10} In his "MOTION FOR LEAVE TO FILE UNTIMELY COMPLAINT
PURSUANT TO CIVIL R. (6)(B)(2)," appellant claims he was prescribed medication after
the above incidents that caused him to lose track of time and space. In his complaint,
appellant asserts he was given "Zorloft" in September 2012 in addition to his current
medication Elavil. He claimed that, due to the two medications he was prescribed, he
could not properly function, could not walk, could not remember where he put things, had
to be reminded what he was doing, and became irritable. He indicated that once he
stopped taking "Zorloft" in November 2012, he started acting normally again.
       {¶ 11} Given the above assertions, we cannot find the Court of Claims erred when
it denied appellant's request to file an untimely complaint. Appellant indicated that he
No. 16AP-310                                                                                 5

started feeling normal as of November 2012 when he was taken off "Zorloft." Appellant
failed to explain why he did not file his complaint for nearly three years after he was taken
off "Zorloft." Therefore, the trial court did not err when it dismissed appellant's complaint
because it was filed beyond the two-year statute of limitations, and we overrule appellant's
first assignment of error.
       {¶ 12} Appellant argues in his second assignment of error that the Court of Claims
erred when it dismissed his complaint without applying pro se status to his complaint.
However, Ohio courts presume that pro se litigants have knowledge of the law and legal
procedures, and generally hold pro se litigants to the same standard as represented
litigants. Collins v. Ohio Adult Parole Auth., 10th Dist. No. 02AP-1161, 2003-Ohio-2952,
¶ 28. As this court has noted, "[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." (Citations omitted.)
Whitehall v. Ruckman, 10th Dist. No. 07AP-445, 2007-Ohio-6780, ¶ 21. Consequently, a
pro se litigant "cannot expect or demand special treatment." Kessler v. Kessler, 10th Dist.
No. 09AP-740, 2010-Ohio-2369, ¶ 8. In the present case, appellant fails to explain why he
should be granted an exception to this general rule and be allowed to file an untimely
complaint because he was unrepresented. For these reasons, appellant's argument is
without merit, and we overrule his second assignment of error.
       {¶ 13} Appellant argues in his third assignment of error that the trial court abused
its discretion when it dismissed his complaint without applying "special circumstances" to
him. In his appellate brief, appellant claims that many courts have allowed unusual or
special circumstances that justified the neglect of the party. Although not explicit,
appellant seems to suggest that the special circumstances here were that appellant was
over medicated. We first note that appellant failed to raise this argument in the Court of
Claims and, thus, waived it. See Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-
Ohio-3626, ¶ 34 (a party who fails to raise an argument in the trial court waives his or her
right to raise that argument on appeal). Nevertheless, we have already addressed
appellant's alleged argument that he was over medicated as it applies to his untimely
filing in overruling his first assignment of error. Appellant fails to cite any legal authority
for his argument and fails to further cite any special circumstances that would have
No. 16AP-310                                                                          6

required the Court of Claims to allow his late filing. For these reasons, appellant's
argument is without merit, and his third assignment of error is overruled.
      {¶ 14} Accordingly, appellant's three assignments of error are overruled, and the
judgment of the Court of Claims of Ohio is affirmed.
                                                                      Judgment affirmed.

                         DORRIAN, P.J., and TYACK, J., concur.

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