a party “generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties.”
How later courts described this case
- a party “generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties.”
Written by the judges who cited it.
The opinion
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AHMAD SAQR, et al.,
Case No: 1:18-cv-542
Plaintiff, Dlott, J.
v. Bowman, M.J.
THE UNIVERSITY OF CINCINNATI, et al.,
Defendants.
REPORT AND RECOMMENDATION
On August 3, 2018, two brothers, Ahmad Saqr and Omar Saqr, filed suit against
the University of Cincinnati and the University of Cincinnati College of Medicine
(collectively “UC”).1 Pursuant to an Order of the presiding district judge, this case has
been referred to the undersigned magistrate judge. (Doc. 3). Presently pending is
Plaintiffs’ motion for leave to file an amended complaint. For the reasons that follow, the
undersigned recommends the denial of that motion.
I. Background
On February 20, 2019, the undersigned recommended that UC’s motion for
judgment on the pleadings be granted in part as to multiple claims presented in Plaintiffs’
original complaint. (Doc. 11; see also Doc. 15, adopting R&R on March 14, 2019). Soon
thereafter, UC filed a second motion for judgment on the pleadings, seeking the dismissal
of additional Americans with Disability Act (“ADA”) claims on grounds of sovereign
1Despite being identified as separate Defendants in Plaintiffs’ original complaint, the University of Cincinnati
College of Medicine is not a separate legal entity from the University of Cincinnati. Plaintiffs’ tendered
amended complaint corrects the error to identify UC as a single entity Defendant.
motion. (Docs. 19, 30). Days before oral argument was scheduled, however, Plaintiffs
moved for leave to file an amended complaint. (Doc. 28). At oral argument, UC stated its
intention to file a memorandum in opposition to the proposed amendment.
For reasons of judicial economy, the undersigned filed the R&R recommending
dismissal of the ADA claims as stated in the original complaint without prejudice to
Plaintiffs’ ability to reinstate those claims if later granted leave to amend. At the same
time, the Court entered an Order that permitted (but did not require) Plaintiffs to withdraw
and/or refile their then-recently-filed motion for leave to file an amended complaint, so
that Plaintiffs could fully consider and incorporate the recommended ruling if desired. An
accompanying Order set a deadline of September 30, 2019 by which Plaintiffs were
required to withdraw their pending motion to amend and re-file any new motion with a
new first amended complaint. The Court explained that if Plaintiffs instead elected to rest
on their existing motion for leave to file a first amended complaint, the undersigned would
review the tendered complaint following the completion of expedited briefing.
After receipt of the September 23 R&R and Order, Plaintiffs chose to rest on their
existing motion for leave to file an amended complaint. UC filed a response in opposition
to that motion, to which Plaintiffs filed a reply on October 11, 2019. Based upon new
matters presented by Plaintiffs in their reply, UC was granted leave to file a sur-reply.
Plaintiffs’ original complaint alleged that Defendants violated the Americans with
Disabilities Act, the Rehabilitation Act, and Title VI as well as related state laws, when
UC’s Performance and Advancement Committee recommended Plaintiffs’ respective
2 Plaintiffs’ request for argument was granted in accordance with the undersigned’s standard practice of
permitting newer attorneys the opportunity to argue any motion upon request.
by an appeal panel. As stated, in two prior R&Rs, the undersigned recommended
granting two motions to dismiss various claims filed by Plaintiffs. The first of those R&Rs
has been adopted by the presiding district judge, but the second R&R remains pending.
In the February 2019 R&R adopted by the Court, the undersigned recommended
the dismissal of Plaintiffs’ ADA claims Counts I and II (all ADA claims except for the
portion of Count I that sought injunctive relief), Count III (Rehabilitation Act claims), Count
IV (state discrimination claim), Count VI (Title VI retaliation claim); and Count VII (state
breach of contract claim), as well as the dismissal of “the portion of Count V in which
Plaintiff Omar [Saqr] asserts a Title VI discrimination claim.” Thus, after the first R&R was
adopted, the only remaining claims were Plaintiff Ahmad’s Title VI discrimination claim
and both Plaintiffs’ claims for injunctive and declaratory relief under the ADA.
However, in the second R&R filed on September 23, 2019, the undersigned further
recommended the dismissal of Plaintiffs’ claims for declaratory and injunctive relief under
Title II of the Americans with Disabilities Act based upon UC’s assertion of sovereign
immunity. (Doc. 30). The more recent R&R noted that the recommended dismissal of all
other claims left “only a single claim …alleging Title VI discrimination” by Plaintiff Ahmed
Saqur. However, the R&R expressly stated that “this recommendation is without
prejudice to the reinstatement of any appropriate claim for injunctive relief should Plaintiffs
subsequently be granted leave to file an amended complaint.” (Id. at 9).
II. Analysis
A. Plaintiffs’ September 6, 2019 Tendered First Amended Complaint
Plaintiffs’ September 6 motion seeking leave to file a first amended complaint
asserts that their “amendments will not substantially change the nature of the case” and
Defendant’s Motion to Dismiss.” (Id. at 3). Contrary to that assertion, however, a cursory
review of the proposed amended complaint reflects the addition of two new individual
Defendants, Andrew Filak Jr. and Laura Malosh, both of whom Plaintiff seeks to add in
their official capacities. Also in contrast to Plaintiffs’ representation that they seek only
to restate the claims that survived dismissal, the tendered amended complaint attempts
to re-state several previously dismissed claims.
Plaintiffs’ motion to amend their complaint was filed after UC’s second motion for
judgment had been fully briefed, just days before oral argument on that motion. The
proposed addition of the two individual Defendants appears to have been intended to
address the deficiency on which UC’s motion was based: UC’s entitlement to sovereign
immunity on all ADA claims and the failure of the original complaint to name any individual
Defendants. As the undersigned explained in the September 23 R&R that recommended
granting UC’s motion and dismissing Plaintiffs’ ADA claims for injunctive relief: “Whereas
Ex parte Young provides an exception to sovereign immunity when a party is seeking
prospective relief against a state official, the exception ‘has no application in suits against
States and their agencies, which are barred regardless of the relief sought.’” (Doc. 30 at
7-8, quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
146 (1993)).
Because Plaintiffs’ motion for leave to file an amended complaint was not yet ripe
at the time the September 23 R&R was filed, the R&R did not fully address whether the
proposed amended complaint cured the deficiency. The undersigned recognized that
Plaintiffs proposed to add two individual Defendants. However, the undersigned pointed
out that the tendered amended complaint added little more than two individuals names:
not by title, and does not allege any specific actions that the individuals took
against either of the Plaintiffs other than alleging that they are “agents and
decision makers of UC’s medical school.” (Doc. 28-1 at ¶6). It is not entirely
clear whether the newly proposed individual Defendants would, or would
not, have authority to grant the prospective injunctive relief that Plaintiffs
seek.
Rather than speculate about whether Plaintiffs’ proposed amendment
would “moot” the otherwise fully-ripe motion for judgment on the pleadings,
the undersigned recommends granting Defendants’ motion for judgment at
this time, but without prejudice to Plaintiffs’ ability to file a new motion for
leave to amend, or alternatively to rest on their existing motion. In the
interests of judicial economy, a separate Order will be entered this same
day that will permit Plaintiffs additional time in which they may either
withdraw the current motion and re-file a new motion for leave to amend in
light of this R&R, or alternatively, state their intention to continue briefing on
their current motion.
(Doc. 30 at 8-9).
The Court entered an Order to the same effect, allowing but not requiring Plaintiffs
additional time, up through September 30, 2019, in which to withdraw their pending
motion seeking leave to amend their complaint and re-file a new motion seeking leave to
amend, which would allow Plaintiffs to tender a new version of a First Amended Complaint
that could address the shortcomings identified in the R&R. Alternatively, the Court
directed the parties to expedite their briefing on the pending motion. Plaintiffs chose to
rest on their September 6 motion.
B. Plaintiffs’ October 11, 2019 “Amended” Tendered First
Amended Complaint Should be Stricken or Disregarded
Although Plaintiffs complied with the Court’s expedited deadline for filing a reply
memorandum in support of their motion to amend, their reply was not limited in scope to
the Defendants’ response in opposition to the amendment. Instead, Plaintiffs’ reply
presented an entirely new argument – along with a “new and improved” version of their
first amended complaint.
procedurally improper. Plaintiffs did not withdraw their prior motion seeking leave to file
the September 6 version of an amended complaint, and no new motion seeking leave to
amend accompanies the pleading appended as an exhibit to Plaintiffs’ reply
memorandum. By way of explanation, the reply states: “To ensure Defendants clearly
understand the claims Plaintiffs want to pursue, as well as the reasoning behind naming
the official capacity Defendants, Plaintiffs have amended the Proposed Amended
Complaint and attached it to this Reply.” (Doc. 35 at 2). Based upon this newly tendered
“amendment” to the previously tendered amended complaint, Defendants were granted
leave to file a sur-reply.
This Court’s prior Order was very clear in directing Plaintiffs to either stand by their
existing motion and tendered amended complaint, or to withdraw that motion and re-file
a new motion seeking leave to amend (along with a new amended complaint) not later
than September 30, 2019. Plaintiffs’ disregard of the Court’s Order in the guise of a reply
memorandum cannot be sanctioned. The new “amendment” to the previously tendered
first amended complaint is beyond the scheduled deadline for amendment as well as
procedurally improper. In a sur-reply, UC requests that the improperly tendered pleading
be stricken from Plaintiffs’ reply memorandum. (Doc. 37 at 3). Although the undersigned
declines to formally strike the improper pleading, the undersigned agrees that the
pleading should not be considered. If any reviewing court disagrees, the undersigned
alternatively would recommend the denial of the latest proposed amendment.
C. Plaintiff’s September Proposed Amendment Would be Futile
Rule 15(a)(2), Fed. R. Civ. P., provides that a court should “freely give leave” to
amend pleadings “when justice so requires.” However, the denial of leave to amend is
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.’” Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d
505, 520 (6th Cir. 2010) (quoting Foman v. Davis,371 U.S. 178, 182 (1962)). Defendant
opposes the motion to amend on grounds of futility. A motion to amend a complaint
should be denied as futile when the complaint as amended would not survive a motion to
dismiss. See Brown v. Owens Corning Inv. Review Comm., 622 F.3d 564, 574 (6th Cir.
2010). The undersigned agrees that leave to amend should be denied in this instance.
First, amendment should be denied because the tendered amended complaint fails
to eliminate claims that previously were dismissed by this Court. On March 14, 2019, the
Court adopted the undersigned’s first R&R and dismissed Plaintiffs’ state law, ADA
retaliation, Title VI retaliation, and Rehabilitation Act claims, as well as Plaintiff Omar
Saqr’s Title VI discrimination claim. (Doc. 15). The only claims that survived dismissal
were (1) Plaintiff Ahmad Saqr’s Title VI discrimination claim; and (2) both Plaintiffs’ ADA
claims for injunctive and declaratory relief. However, in the tendered amended complaint,
Plaintiffs inexplicably restate many of the dismissed claims, without adding any new
allegations to suggest new factual or legal grounds to support those claims. (See, e.g.,
¶¶ 1, 8, 70-75, realleging Rehabilitation Act and state law claims, as well as ADA
retaliation claim; see also Doc. 28-1 at 9, Count III, realleging Title VI discrimination “Only
as to Plaintiff Omar Saqr” despite the prior dismissal of the same Plaintiff’s discrimination
claim). After the Court’s adoption of the first R&R, on September 23, 2019, the
undersigned filed a second R&R that recommended the additional dismissal of both
Plaintiffs’ ADA claims for injunctive and declaratory relief. (Doc. 30). In other words, the
Ahmed’s Title VI discrimination claim – a single claim that is mysteriously absent from the
face of the tendered amended complaint.3
The second basis for denial of the Plaintiffs’ motion to amend is that the proposed
addition of the two new individuals’ names, without any supporting factual allegations, is
insufficient to save Plaintiffs’ ADA claims for injunctive or declaratory relief under the Ex
Parte Young doctrine. In the September 23, 2019 R&R, the undersigned recommended
the dismissal of Plaintiffs’ ADA claims for injunctive or declaratory relief based upon UC’s
sovereign immunity. The referenced R&R explained that Plaintiffs’ claims were not saved
by the Ex Parte Young doctrine because Plaintiffs had not named any individual
Defendants who could provide them the relief that they requested (including
reinstatement to the medical school).
The tendered amended complaint contains nearly identical allegations to Plaintiffs’
original complaint, with the sole change to the identity of the singular “Defendant” now
alleged to be “the University of Cincinnati, Andrew Filak Jr., and Laura Malosh
(collectively, ‘Defendant’)” (Doc. 28-1 at 2). In their original complaint, Plaintiffs referred
to two separate UC entities as a collectively singular “Defendant.” Aside from that cursory
change and inclusion of the individuals in the defined singular use of “Defendant”
throughout the complaint, the only other reference to Filak and Malosh occurs in
paragraph 6 of the tendered Amended Complaint, which reads in its entirety:
3 Some of the paragraphs underneath a caption identifying the single Title VI claim as that of “Omar” Saqr
continue to refer to Ahmad Saqr, which suggests (despite some ambiguity) that the reference to Omar in
the caption may have been a clerical error and that Plaintiff Ahmad Saqr did not intend to withdraw his only
remaining viable claim. (See Doc. 34 at 4, n.2, noting Defendant’s confusion as to whether Plaintiff Ahmad
Saqr has abandoned his only remaining claim).
makers of UC’s medical school. All claims against Defendants Ball [sic]
mand Malosh are for their actions in their official capacity.
(Id.)
This minimal inclusion of Filak and Malosh in name only is insufficient to state a
claim. As the undersigned pointed out in the September R&R, Plaintiffs’ inclusion of two
individuals’ names is devoid of any supporting factual allegations, including but not limited
to the titles or positions held by those individuals, and does not allege any specific actions
that either individual took against either of the Plaintiffs. The allegation that both
individuals “are agents and decision makers of UC’s medical school” appears to be a
conclusory legal assertion as opposed to a factual allegation. See Bird v. Delacruz, 2005
WL 1625303 at *4, 2005 U.S. Dist. LEXIS 48388 at **10-11 (S.D. Ohio July 6, 2005)
(collecting cases finding that it is insufficient to merely plead the legal conclusion of
agency without factual support). A “legal conclusion couched as a factual allegation” is
insufficient as a matter of law to state a claim against either individual. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). At a minimum, a state official identified as a defendant
must have “some connection with the alleged unconstitutional act or conduct of which the
plaintiff complains.” Top Flight Entm’t, Ltd. v. Schuette, 729 F.3d 623, 634 (6th Cir. 2013)
(internal quotation marks and additional citation omitted). Suit will not lie in the absence
of facts showing that the state official has some responsibility for the alleged constitutional
violations. The “connection” requirement is designed to ensure that the state official is
not merely being sued “as a representative of the state” in an attempt to get around the
State’s Eleventh Amendment immunity. Ex Parte Young, 209 U.S. at 157.
In their reply memorandum, Plaintiffs urge this Court to take judicial notice of facts
that they have not alleged in their tendered amended complaint. Specifically, Plaintiffs
current Dean of the College of Medicine and identifies Defendant Malosh as the Assistant
Dean. Plaintiffs argue that as current Dean, Filak “has dominion and control over all
operations” and “has the final decision regarding dismissal.” (Doc. 35 at 4). Plaintiffs
argue that according to UC’s website, Assistant Dean Malosh oversees academic support
and counseling, which would include disability accommodations. However, Plaintiffs
admit that Filak “was not the Dean at the time of Plaintiffs’’ enrolment [sic] with the
university.” (Id. at 4, n.17).
Defendant UC argues that it would be improper for this Court to assume facts not
included in the tendered amended complaint filed on September 6, 2019. I agree. Courts
are limited in the type of facts as to which they can take judicial notice. Assuming that
this Court can take judicial notice of the content contained on a website operated by a
governmental entity in the context of a motion for judgment on the pleadings, such notice
would not be appropriate here because Plaintiffs’ complaint does not refer to that website
in any manner. As another court explained:
Plaintiffs' reliance on the doctrine of judicial notice is misplaced. “A court
may judicially notice a fact that is not subject to reasonable dispute because
it ... can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed R. Evid. 201(b). “Public record and
government documents are generally considered ‘not to be subject to
reasonable dispute.’ ” U.S. ex rel. Dingle v. BioPort Corp., 270 F.Supp.2d
968, 972 (W.D.Mich.2002) (citing Grimes v. Navigant Consulting, Inc., 185
F.Supp.2d 906, 913 (N.D.Ill.2002) (taking judicial notice of stock prices
posted on a website); Cali v. E. Coast Aviation Servs., Ltd., 178 F.Supp.2d
276, 287 (E.D.N.Y.2001) (taking judicial notice of documents from
Pennsylvania state agencies and Federal Aviation Administration)).
Plaintiffs are correct in asserting that a court docket is the type of public
document that is not reasonably open to dispute.
However, in order for the Court to take judicial notice of a public document,
Plaintiff must either refer to or attach the public record to the Complaint.
“Assessment of the facial sufficiency of the complaint must ordinarily be
Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir.2010). “However, a court
may consider ‘exhibits attached [to the complaint], public records, items
appearing in the record of the case and exhibits attached to the Defendant's
motion to dismiss so long as they are referred to in the complaint and are
central to the claims contained therein.” Rondigo, L.L. C. v. Township of
Richmond, 641 F.3d 673 (6th Cir.2011).
Ghaster v. City of Rocky River, 913 F.Supp.2d 443, 454–55 (N.D. Ohio 2012). Plaintiffs
do not proceed pro se but are represented by counsel. “It is not the responsibility of the
court to rewrite the complaint to set forth a claim.” Cornett v. Magnum Hunter Prod., 585
Fed. Appx. 316, 317 (6th Cir. 2014); accord, Ghaster, 913 F. Supp.2d at 464 n. 2; see
also Steele v. Edwards, 2016 WL 7325333 at *2 (M.D. Tenn. Dec. 16, 2016) (holding that
proposed amendment was improper where plaintiff identified no factual basis for seeking
injunctive relief because of a threat of future injury at hands of the newly proposed
defendant).
Even if Plaintiffs had included factual allegations sufficient to indicate specific
actions undertaken by Drs. Filak or Malosh, and sufficient to clarify that those two
individuals have the authority to grant the injunctive relief that Plaintiffs seek,4 UC argues
that the amendment would fail as a matter of law based upon the applicable statute of
limitations.
Based on the allegations of the complaint, the undersigned will assume that UC
intends its limitations argument to apply only to Plaintiff Ahmed Saqr, who allegedly was
dismissed in August 2016.5 The undersigned previously noted that “[m]ultiple cases
suggest that Plaintiff Ahmad’s claims may well be time-barred.” (Doc. 11 at 18).
However, UC’s prior motion to dismiss that Plaintiff’s claims was denied because no
4 The referenced website content does not suggest that Dr. Malosh possesses the authority to reinstate
Plaintiffs.
5 Plaintiffs allege that Omar Saqr was “finally dismissed on January 1, 2018.”
“final” dismissal that fell within the limitations period.
The addition of new Defendants does not automatically relate back to the date of
the original filing of the complaint. See Rule 15(c)(1)(C). Plaintiffs concede that the
amendment would be untimely unless Drs. Filak or Malosh had notice of Ahmed’s claims
within 90 days of the date the complaint was filed. Plaintiffs argue, however, that there is
a presumption of notice when a complaint is amended to name officials or agents of the
original Defendant. Plaintiffs maintain that the two individuals had imputed knowledge
because they are UC’s “top administrators.” (Doc. 35 at 7). For the reasons discussed,
accepting allegations not pleaded in the tendered amended compliant is problematic. The
problematic nature of such an assumption is compounded when one considers that
Plaintiffs also admit that Filak was not Dean at the time of the events in question.
The undersigned concludes that the “relation back” doctrine does not apply on the
circumstances presented, where Plaintiffs are attempting to add entirely new parties. In
the recent case of Durham v. Martin, 388 F. Supp.3d 919 (M.D. Tenn. 2019), the district
court reviewed controlling case law and Rule 15 and rejected a similar argument that the
belated amendment of a complaint to add new claims against individuals in their official
capacity should relate back to the original filing. Although Durham is non-binding and is
presently on appeal, the undersigned finds its “relation back” analysis to be persuasive.
Indeed, another court in this district previously reached a similar conclusion. See Smtih
v. Gallia County Sheriff, 2011 WL 2970931 (S.D. Ohio July 20, 2011).
The undersigned further concludes that the proposed tendered amendment should
be denied on the basis of undue delay, because it was not filed until more than a year
after the filing of the original complaint, and long after UC had engaged in extensive paper
that there is no undue delay because the need to amend only arose after the undersigned
recommended the dismissal of Plaintiffs’ ADA claims based upon sovereign immunity.
However, the tendered amendment was filed more than six months after the undersigned
filed the first R&R recommending judgment on the pleadings yet attempts to restate many
of those claims without adding any new factual allegations. As for the more recent R&R,
Plaintiffs’ misunderstanding about who might be a proper defendant does not excuse their
delay. Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971 (6th Cir. 1973).
The undersigned also concludes that the Defendant would be unduly prejudiced
by the tardy amendment so close to the prior discovery deadline.7 Plaintiffs deny that UC
would be prejudiced, arguing that “Malosh and her actions were heavily discussed” in
Plaintiffs’ depositions. However, Plaintiffs do not allege (nor could they, considering he
was not the Dean at the time) that Filok’s actions were discussed. The fact that some
discovery relevant to Malosh may have occurred does not mean that Malosh would not
be prejudiced, as a non-party’s interests during a deposition may differ greatly from the
same individual’s interests if she is a named party.
D. If Plaintiffs’ Improper Amendment to the Tendered Amended
Complaint Attached to the Reply Memorandum is
Considered, Leave to Amend Should Still be Denied
Even if a reviewing court were to disagree with the undersigned and overlook the
procedural improprieties in order to consider the improper “amendment” to the previously
6 The proposed amendment also occurred long after Plaintiffs represented in a March 22, 2019 joint
discovery plan that they did not anticipate adding parties or claims. (Doc. 16 at PageID 135).
7 The undersigned recently granted the parties’ joint motion to extend that deadline to allow additional time
for the filing of this R&R and the presiding district judge’s review of the recommended rulings.
motion for leave to amend be denied on the basis of undue prejudice and delay.
In addition, as UC points out in its sur-reply, this Court previously dismissed
Plaintiffs’ ADA retaliation claims not only based upon sovereign immunity, but also based
upon a failure to state a claim. In the February R&R, the undersigned highlighted the
threadbare nature of Plaintiffs’ allegations, including the lack of any factual detail
concerning who, what, when or where events occurred. In the October 11 tendered
amendment, Plaintiffs indicate that they wish to make the singular “Defendant” inclusive
of the two individual Defendants, but otherwise add no factual detail and make no effort
to differentiate between UC, Malosh or Filak. This Court previously warned Plaintiffs that
their complaint should be able “to identify some minimal level of detail within Plaintiffs’
knowledge, such as the name or title of the person(s) to whom they allegedly complained,
whether the complaints were oral or in writing, and/or a rough time frame of when they
expressed those complaints.” (Doc. 11 at PageID 99). Plaintiffs’ latest iteration is no less
threadbare and conclusory. In fact, Plaintiffs’ acknowledgement that Dr. Filak was not
the Dean at the time Plaintiffs were enrolled runs counter to any possibility that he could
have retaliated against the Plaintiffs. (See Doc. 35 at n. 17).
As for the relief sought based on Plaintiffs’ discrimination claims, Plaintiffs seek
“an order enjoining Defendants from continuing to conduct itself in a manner that
discriminates against students on the basis of race and/or disability.” (Doc. 35-1 at ¶94,
PageID 234). However, Plaintiffs have no standing to request relief for other “students.”
See generally Warth v. Seldin, 422 U.S. 490, 499 (1975) (a party “generally must assert
his own legal rights and interests and cannot rest his claim to relief on the legal rights or
interests of third parties.”). Of course, Plaintiffs’ primary claim for injunctive relief appears
that Dr. Malosh has no authority to reinstate Plaintiffs. Plaintiffs’ latest tendered
amendment does not suggest otherwise. And, although Dean Filak may possess greater
authority, Plaintiffs’ failure to name the prior Dean and Dr. Filak’s lack of any personal
connection to the alleged ADA violations makes injunctive relief against him
inappropriate.
III. Conclusion and Recommendation
In conclusion, IT IS RECOMMENDED THAT Plaintiffs’ motion to amend or correct
their complaint (Doc. 28) be DENIED.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AHMAD SAQR, et al.,
Case No: 1:18-cv-542
Plaintiff, Dlott, J.
v. Bowman, M.J.
THE UNIVERSITY OF CINCINNATI, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).