[Cite as Langin v. Sheffield-Sheffield Lake Bd. of Edn. , 2022-Ohio-879.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

ZACKORY LANGIN Appellant

v. SHEFFIELD-SHEFFIELD LAKE BOARD OF EDUCATION Appellee C.A. No. 20CA011710

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 20-CV-201228

DECISION AND JOURNAL ENTRY Dated: March 21, 2022

SUTTON, Judge. {¶1} Plaintiff-Appellant, Zackory Langin (“Mr. Langin”), appeals the judgment of the Lorain County Court of Common Pleas granting the motion to dism iss of Defendant-Appellee, Sheffield-Sheffield Lake City S chool District Board of Educatio n (“the Board”). For the reasons that follow, thi s Court affirms.

I. Relevant Background {¶2} The present appeal arises from a complaint filed on June 1, 202 0, in Case No. 20CV201228, by Sherrie Ann Langin, William Ernest L angin, Mr. L angin, and Joshua Ernest Langin, the minor child of Sherrie Ann and William Ernest Langi n, against the Board. According to the complaint, Mr. Langin, and the other plaintiff s, challenged “the constitutionality of a student drug testing policy enacted by t he [Board] on September 28, 2015, both facially and as applied.” Thi s same Board policy was chal lenged by Sherrie Ann and2

William Ernest Langin, on behalf of Mr. Langin alone, in Case N os. 16CV190139 and 17CV194118. The Langins voluntar ily dismissed Case No. 16CV190 139, and on January 7, 2020, the trial court dismisse d Case No. 17CV194118, without pr ejudice, due to mootness. In the judgment entry dismissing C ase No. 17CV194118, the trial co urt stated: [D]ismissal of this case [] is a ppropriate given [the Langins’] proposed [s]econd [a]mended [c]omplaint (“SAC”). [ The Langins] allege in the pro posed SAC that [Mr. Langin] [] has now reached the age of 18 and is competent to bring the claims set forth [] in his own r ight. Moreover, [the Langins] allege that the newparty [p]laintiff, Jos hua [Ernest] Langin, [] is a twelfth grader at Brookside [] and that he is [] currently subject to [] [t]he [p]olicy

. (Internal citations and quotations omitted.) (Emphasis added.) The Langins did not appeal the

dismissal of Case No. 17CV194118. {¶3} The June 1, 2020 complaint, in Case No. 20CV201228, sought an i njunction against the Board as to the enforcement of the student drug tes ting policy and a declaration that the policy is unconstitutional on its face and as applied. Add itionally, the complaint sought declaratory judgment that the st udent drug testing policy is in conflict with other board policies. Lastly, the complaint sought dam ages “in an amount sufficient t o fully and fairly compensate [Mr. Langin and Joshua Ernest La ngin] for their damages resulti ng from the alleged violations of their rights secured by the Ohio Constitution[,]” attorney f ees, and litigation expenses. {¶4} Importantly, the complaint indicated Mr. Langin graduated from SheffieldSheffield Lake City School Distr ict in 2019 and Joshua Ernest L angin graduated from Sheffield-Sheffield Lake City School District on May 23, 2020, prior to the filing of the complaint on June 1, 2020. Thus, at the time the Langins filed the new complaint, neither Mr. Langin, nor Joshua Ernest Langin, were subject to the requireme nts of the Board’s student drug testing policy.3

The Motion to Dismiss {¶5} On August 27, 2020, the Board filed a motion to dismiss the com plaint filed in Case No. 20CV201228, pursuant to Civ.R. 12(B)(1) and (6), based upon mootness, lack of justiciable controve rsy, qualified immunity, and no private cau se of action for damages under

Ohio’s Constitution. The Board contended:

* * * The Langins had four years to raise constitutional challenges t o the [Board’s] policies. At this point, both boys have graduated. [] No live controversy remains for this [c]court to adjudicat e, no mootness exceptions apply, and no relevant constitutional provision creates a private cause of action for the Langins’ claims. Finally, the [Board] is entitled to immunity from the Langins’ suit under Ohio’s Political Subdivision Tort Liability Act.

* * * Further, in its reply in support of the motion to dismiss, the Board specifically addressed the

issue of standing as follows:

* * * The Langins filed this suit afte r [Mr. Langin] and Joshua [Erne st Langin] were no longer District students which alone deprives them of standing, regardless of any mootness considerations or excep tions. [The Langins] cannot es tablish standing absent a showing that they have s uffered an injury: (1) fairly traceable to [the Board’s] allegedly unlawful conduct; and (2) likely to be redressed by the requested relief. [ Deutsche Bank Natl. Tr. Co. v. Holden , 147 Ohio St.3d 85, 2016-Ohio-4603, ¶ 20.] Mootness is s imply the requirement that the standing which existed when litigation began, continued throughout the p rogress of the case. [] Although some exceptions to the mootness doctrine exist, no exception can save a dispute which became moot before litigation commenced. [ Renne v. Geary , 501 U.S. 312, 320 (1991).] [The Langins] failed to invoke th is court’s jurisdiction before commencing litigation and lack requisite standing to file suit. The mootness exceptions claimed by [the Langins] are a red herr ing designed to mask their failure to timely commence suit.

* * *4

(Emphasis added.) Journal Entry Dismissing t he Langins’ Complaint {¶6} In dismissing the Langins’ compla int, the trial court explaine d, in relevant part:

* * *

Present in the instant case are the same basic issues that resu lted in the involuntary dismissal of the 2017 case. There, in raising its concerns that [Mr. Langin] no longer attends the [Bo ard’s] high school and thus is no longer subject to the [p]olicy, the [c]ourt dir ected the parties to focus on t he issue of justiciability. Justiciability and mootness continue to remain as issues, are closely intertwined but not identical.

* * * Here, the 2016 case, 16CV190139, was voluntarily dismissed by [ the Langins] on November 21, 2017. The 2017 case, 17CV194118, was admittedly f iled while [Mr. Langin] was a student; however, he graduated in 2019 befor e an involuntary dismissal of that case on Janua ry 7, 2020. Joshua [Ernest] Lan gin was not a party in the 2017 case. Additionally, when the present case was refiled on June 1, 2020, adding Joshua [Ernest] Langin as a plaintiff, neither [Mr. Langin] nor Joshua [Ernest] Langin were students of the [Board’s] Brookside High[] School.

* * * (Emphasis added.) {¶7} Mr. Langin now appeals raising fi ve assignments of error for ou r review. To aide our analysis, we have combine d certain assignments of error. 1

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING THE BOARD OF EDUCATION’S MOTION TO DISMISS ON THE GROUNDS THAT THE INSTANT MATTER WAS MOOT AND DID NOT MEET THE EXCEPTION TO THE MOOTNESS DOCTRINE THAT A CASE BE “CAPABLE OF REPETITION, YET EVADING REVIEW”, WHICH

1 We note that only Mr. Langin ha s appealed the trial court’s No vember 25, 2020 Judgment Entry. Sherrie Ann and William Ernest L angin and Josh ua Ernest Langin, Mr. Langin’s brother, are not p arties to this appeal.5

RESULTED IN A VIOLATION OF MR. LANGIN’S RIGHTS UNDER ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING THE BOARD OF EDUCATION’S MOTION TO DISMISS ON THE GROUNDS THAT THE INSTANT MATTER WAS MOOT AND DID NOT MEET THE EXCEPTION TO THE MOOTNESS DOCTRINE THAT A CASE BE “OF PUBLIC OR GREAT GENERAL INTEREST”, WHICH RESULTED IN A VIOLATION OF MR. LANGIN’S RIGHTS UNDER ARTICLE I, SECTION 2 OF THE OHIO CONSTITUION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

{¶8} In his first and second assignmen ts of error, Mr. Langin argue s the trial court erred in dismissing his claims aga inst the Board as moot. Howe ver, because Mr. Langin lacked standing to commence this action for injunctive and declaratory relief against the Board, we confine our analysis on these assignments of error to the issue s of justiciability and standing. {¶9} As aptly stated by the Supreme Court of the United States “[j]u sticiability concerns not only the standing of litigants to assert particula r claims, but also the appropriate timing of judicial intervention.” Renne at 320. Thus, “if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of r epetition yet evading review will not entitle the [plaintiff] to a [] judicial forum.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc ., 528 U.S. 167, 191 (2000). “ Standing doctrine functions to ensure, among other things, that the scarce resources of the [] courts are devoted to those disputes in which the parties have a concrete stake.” Id

. {¶10} Indeed, “ standing to sue is part of the common unders tanding of what it takes to

make a justiciable case.” (Emphasis added.) Federal Home Loan Mortg. Corp. v. Schwartzwald , 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 21, quoting Steel Co. v. Citizens for a

Better Environment , 523 U.S. 83, 102 (1998). Standing has traditionally been ref erred to as6

“[w]hether a party has a sufficient stake in an otherwise justi ciable controversy to obtain judicial resolution of that controversy[.]” Id ., quoting Cleveland v. Shaker Hts ., 30 Ohio St.3d 49, 51 (1987). As such, “[t]he issue of standing is a threshold test that, once met, permits a court to determine the merits of the questions presented.” Hicks v. Meadows, 9th Dist. Summit No. 21245, 2003-Ohio-1473, ¶ 7. “Traditional standing principles r equire litigants to show, at a

minimum , that they have suffered ‘(1) an injury that is (2) fairly tra ceable to the defendant’s allegedly unlawful conduct, and (3) likely to be redressed by t he requested relief.’” (Emphasis added.) ProgressOhio.org, Inc. v. JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, ¶ 7, quoting

Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, ¶ 22. Additionally, because standing presents this Court with a question of law, we review the matter de

novo. Zagrans v. Elek, 9th Dist. Lorain No. 08CA009472, 2009-Ohio-2942, ¶ 7. {¶11} Here, the record unequivocally reveals that, at the time the co mplaint in Case No. 20CV201228 was filed on June 1, 2020, Mr. Langin had graduated from high school and was no longer a student in the Sheffiel d-Sheffield Lake City School Di strict. 2 Thus, Mr. Langin is no longer subject to the requiremen ts of the student drug testing policy and can no longer suffer from any alleged adverse effects of the policy itself. Further more, a favorable outcome, in this matter, would not redress Mr. Langi n’s alleged injuries. There fore, because Mr. Langin no longer has a sufficient stake to obtain judicial resolution of this controversy and lacks standing, the trial court did not err in dismissing the complaint for inj unctive and declaratory relief. See Federal Home Loan Mortg. Corp. at ¶ 21. {¶12} Accordingly, Mr. Langin’s firs t and second assignments of error are overruled.7

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN GRANTING THE BOARD OF EDUCATION’S MOTION TO DISMISS ON THE GROUNDS THAT MR. LANGIN FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED DUE TO THE BOARD OF EDUCATION BEING SUBJECT TO [R.C. 2744.02]. {¶13} In his third assignment of error, Mr. Langin argues the trial c ourt erred in granting the Board’s Civ.R. 12(B)(6) mo tion. For the following reasons, we disagree. {¶14} Mr. Langin, in his complaint, alleged a private right of act ion sounding in tort for damages solely resulting fro m the Board’s adoption and enfo rcement of the student drug testing policy in alleged viola tion of his rights under Article I, Section 2 and Article 1, Section

14 of Ohio’s Constitution. In so doing, Mr. Langin alleged “si gnificant anticipated adverse long-term consequences” from non-pa rticipation in extracurricul ar activities. The Board moved to dismiss based upon immunity, pursuant to R.C. 2744.09, and b ecause there is no private cause of action, under Ohio law , for a constitutional tort. {¶15} The trial court granted the Boa rd’s motion to dismiss, stating, in relevant part:

* * * [P]ursuant to (A)(3) and/or (A)(5) of [R.C. 2744.03], [the Boar d] is immune from liability inasmuch as (i) the [p]olicy was within its duties an d responsibilities and/or (ii) any allege d loss resulted from the proper exercise of the [Board’s] judgment or discretion in determining how to use its personnel, facilities and other resources. Additionally, [M r. Langin] has not alleged th e [p]olicy was a result of malice, bad faith or wanton or reckless conduct. Moreover, neither [Article I, S ection 2 nor Article 1, Section 14 of Ohio’s Constitution] create any private right of action. The Ohio Sup reme Court stated in Provens v. Stark Cty. Bd. of Mental Retardation & Dev. Disabilities , 64 Ohio

2 Although he is not a party to this appeal, Joshua Ernest Langi n had also graduated and was no longer a student in the Sh effield-Sheffield Lake City Sc hool District at the time the June 1, 2020 complaint was filed.8

St.3d 252, [] that the Ohio Constitution does not provide for a civil damage remedy.

* * *

{¶16} Pursuant to a plain reading of R.C. 2744.09, the Ohio legislatu re did not include an exemption from Chapter 2744 immunity for a private cause of action, sounding in tort, for an alleged violation of a person’ s rights under the Ohio Constitut ion or Ohio statutes. Moreover, Mr. Langin does not point this Court to any Ohio law allowing f or a private cause of action, sounding in tort, based upon dama ges resulting from an alleged violation of an individual’s rights under Article I, Section 2 and Article 1, Section 14 of Ohio’s Constitution. While Mr. Langin now argues the Board should not enjoy immunity because i t can hire private counsel and due to certain contractual obliga tions, he raises these argumen ts for the first time on appeal. See Republic Steel Corp. v. Bd. of Revision of Cuyahoga Cty ., 175 Ohio St. 179 (1963), (“Issues not

raised in the lower court * * * cannot be raised for the first time on review.”) As such, we decline to address these arguments. {¶17} Therefore, based upon this recor d, we cannot say the trial cou rt erred in dismissing Mr. Langin’ s damages claim. {¶18} Accordingly, Mr. Langin’s thir d assignment of error is overrule d.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN DENYING MR. LANGIN’S MOTION TO SUPPLEMENT THE RECORD, WHICH RESULTED IN A VIOLATION OF MR. LANGIN’S RIGHTS TO PURSUE HIS CLAIMS BOTH IN THE APPELLATE COURT AND TRIAL COURT.

{¶19} In his fourth assignment of error , Mr. Langin argues the trial court erred in denying his motion to supplement the record. Due to our resolu tion of Mr. Langin’s first and9

second assignments of error, Mr. Langin’s fourth assignment of error is moot. See App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR V

THE TRIAL COURT IMPROPERLY PERMITTED MR. LANGIN TO REFILE HIS MATTER AS THE ABOVE-CAPTIONED MATTER, AS A RESULT OF AN IMPROPER DISMISSAL OF LORAIN COUNTY COURT OF COMMON PLEAS CASE NO. 17-CV-194118, WHICH RESULTED IN A VIOLATION OF MR. LANGIN’S DUE PROCESS RIGHTS TO PURSUE HIS CLAIMS BOTH IN THE APPELLATE COURT AND THE TRIAL COURT. {¶20} In his fifth assignment of error, Mr. Langin attempts to challe nge the trial court’s January 7, 2020 judgment entry dismissing Case No. 17CV194118. Mr. Langin, however, did not file a timely appeal from this judgment entry. Therefore, t his Court is without jurisdiction to consider Mr. Langin’s argument. See App.R. 4(A). {¶21} Accordingly, Mr. Langin’s fift h assignment of error is overrule d.

III. {¶22} For the reasons stated above, Mr. Langin’s first, second, thi rd, and fifth assignments of error are overrule d. Mr. Langin’s fourth assign ment of error is moot. The judgment of the Lorain County Cour t of Common Pleas is affirmed

. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27.10

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

B ETTY SUTTON FOR THE COURT

HENSAL, P. J. CARR, J. CONCUR.

APPEARANCES:

ZACKORY W. LANGIN , pro se, Appellant. MARK S. FUSCO, KATHRYN PERRICO, and MARIA PEARLMUTTER, Attorney s at Law, for Appellee.