Saqr v. University Of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AHMAD SAQR, et al.,

Plaintiffs,

Case No. 1:18-cv-542

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Bowman

UNIVERSITY OF CINCINNATI,

et al.,

Defendants.

OPINION AND ORDER

This cause comes before the Court on Magistrate Judge Bowman’s September

23, 2019 Report and Recommendation (“R&R”)1 (Doc. 30), to which no party has

objected, and which recommends that this Court grant Defendants’ Motion for

Judgment on the Pleadings (Doc. 19). Also before the Court is a second R&R, which

Magistrate Judge Bowman issued on December 2, 2019 (Doc. 40), and which

recommends that this Court deny the Saqrs’ Motion for Leave to File an Amended

Complaint (Doc. 28). Plaintiffs Omar and Ahmad Saqr have objected to this second

R&R. (See Doc. 42).

For the reasons stated more fully below, the Court OVERRULES the Saqrs’

Objection (Doc. 42) and ADOPTS both Magistrate Judge Bowman’s September 23,

2019 R&R and her December 2, 2019 R&R (Docs. 30, 40). As a result, the Court

1 Magistrate Judge Bowman has issued three Report and Recommendations in this action.

(See Docs. 19, 30, 40). The Court uses “Report and Recommendation” as a general term,

denoted “R&R.” In each instance that the Court discusses a specific R&R in this Opinion, the

Court will clarify the specific R&R to which it refers.

GRANTS Defendants’ Motion for Judgment on the Pleadings (Doc. 19) and DENIES

the Saqrs’ Motion for Leave to File an Amended Complaint (Doc. 28). Accordingly,

the Court DISMISSES the Saqrs’ claims set forth in their Complaint, except for

Ahmad Saqr’s discrimination claim arising under Title VI of the Civil Rights Act.

BACKGROUND

Ahmad and Omar Saqr are brothers who share many similarities. Of

particular relevance to this case, both are Egyptian Muslims who suffer from anxiety

and Attention Deficit Hyperactivity Disorder. Both Saqrs also were briefly students

at Defendant University of Cincinnati’s (“UC”) College of Medicine. Both performed

poorly as students there, which they claim was due to their disability. The brothers’

struggles with their studies ultimately led them both to the same place—separate

meetings with UC’s Performance and Advancement Committee (the “PAC”). The PAC

separately recommended that UC dismiss the Saqrs from the College of Medicine—

announcing its decision as to Ahmad in June 2016, and as to Omar in November

2017.2 Both brothers appealed the PAC’s recommendations. And UC then overruled

both of those appeals and adopted the PAC’s recommendations. Now, both Saqrs

allege that their dismissals were unlawful.

The Saqrs initiated this action on August 3, 2018, when they filed a Complaint

(Doc. 1) alleging that UC breached a contract (the school’s handbook), as well as

discriminated and retaliated against them in violation of Titles II and V of the

2 The Complaint says November 2018, but it is clear from the remainder of the sentence

(which says that the dismissal became final in January of 2018) that the PAC decision as to

Omar occurred in November 2017. (Doc. 1, ¶ 45, #6).

Americans with Disabilities Act (“ADA”), the Rehabilitation Act, Title VI of the Civil

Rights Act, and corresponding Ohio law, by failing to remedy the school’s pattern and

practice of discriminating against students based on (1) their disabilities and (2) their

national origins. (Compl., Doc. 1, ¶ 1, #2). More specifically, the Saqrs claim that UC

“fails to provide equal accommodations to minority students” and “disproportionately

dismisses these minorities compared to its non-minority students, as well as in

comparison to other regional medical programs.” (Id.).

Since the Saqrs filed this action, UC has twice moved to dismiss the Saqrs’

claims, and the Saqrs subsequently moved to amend their allegations. Accordingly,

Magistrate Judge Bowman has issued three R&Rs in this case. (See Docs. 11, 30, 40).

The First R&R (Doc. 11), dated February 20, 2019, addressed UC’s Motion to

Dismiss for Lack of Jurisdiction and Failure to State a Claim (Doc. 6), which UC filed

on October 4, 2018, about two months after the Saqrs filed their Complaint. In the

First R&R, Magistrate Judge Bowman recommended that this Court grant UC’s

Motion to Dismiss in part and therefore dismiss several of the Saqrs’ claims without

prejudice. More specifically, as to the Saqrs’ discrimination claim arising under Title

II of the ADA, Magistrate Judge Bowman found that, although the Saqrs had

adequately pled a discrimination claim, the Eleventh Amendment’s sovereign

immunity doctrine barred the specific Title II claim that the Saqrs were advancing,

which was predicated on allegedly wrongful denial of access to a professional school.

(Feb. 20, 2019 R&R, Doc. 11, #94). Because the Eleventh Amendment applied,

Magistrate Judge Bowman further concluded that the Saqrs could not seek money

damages from UC in connection with that claim. Accordingly, she recommended

dismissal of the Saqrs’ ADA claim to the extent it sought damages, but concluded that

the Saqrs’ ADA Title II claim seeking injunctive relief should survive UC’s Motion,

under the Ex parte Young exception to sovereign immunity.

As for the Saqrs’ ADA retaliation claims arising under Title V, Magistrate

Judge Bowman concluded that, like the Saqrs’ discrimination claims, Congress did

not abrogate sovereign immunity for such claims, and so the Eleventh Amendment

bars those retaliation claims (to the extent that they sought monetary relief).

Separately, she also found that the Saqrs failed to adequately plead facts supporting

their Title V retaliation claims, and thus could not proceed on those claims at all,

even as to injunctive relief.

In that same R&R, Magistrate Judge Bowman also concluded that the Saqrs

failed to state a claim for discrimination under the Rehabilitation Act. That is because

that statute requires a heightened causation showing, i.e., that one’s disability was

the sole reason for the discrimination. She concluded that the Saqrs’ own allegations

showed they could not meet that causation standard, as the Saqrs state in their

Complaint that UC ousted them for several additional reasons beyond their

disabilities, including their national origin and race.

As for the Saqrs’ discrimination claims arising under Title VI of the Civil

Rights Act, Magistrate Judge Bowman found that Ahmad sufficiently pled a claim for

relief, but that Omar did not. More specifically, she concluded that, Ahmad had

properly stated a discrimination claim under Title VI by alleging that UC: (1) did not

provide the same level of counseling to him as it did to “non-minority students,”

(2) forced Ahmad to take a disproportionate amount of time off from school, as

compared to members outside of his protected class, and (3) failed to contact his

academic advisor about his PAC performance review process. And, because the Civil

Rights Act is enforcement legislation under Section 5 of the Fourteenth Amendment,

Eleventh Amendment immunity did not bar his claim. (Feb. 20, 2019 R&R at #86–

87). As to Omar, though, the Magistrate Judge concluded he had not pled any

allegations regarding UC’s discriminatory treatment against him because of his

protected-class status, and thus his Title VI claim failed as a matter of law.

Finally, Magistrate Judge Bowman found that sovereign immunity bars the

Saqrs’ state law claims for breach of contract and disability discrimination. As a

result, the only claims that should have survived, Magistrate Judge Bowman

concluded, were Ahmad’s Title VI discrimination claim and the Saqrs’ Title II ADA

claims seeking injunctive relief.

None of the parties objected to this R&R issued on February 20, 2019. Thus,

roughly a month later, on March 14, 2019, this Court (i.e., Judge Dlott, who was

assigned to this case at the time) issued an Order (Doc. 15) adopting the First R&R

in full, and thus dismissing many of the Saqrs’ claims.

A month after the Court’s Order, on April 15, 2019, UC filed a Motion for

Judgment on the Pleadings (Doc. 19), which requested that the Court dismiss the

Saqrs’ then-remaining discrimination claims arising under Title II of the ADA,

through which the Saqrs sought declaratory and injunctive relief. In that Motion, UC

argued that sovereign immunity bars the Saqrs’ discrimination claims even to the

extent that they seek only prospective relief, as the Saqrs failed to include in their

Complaint allegations against, or requests for prospective relief from, any identified

state official, which is a requirement a party must meet to fall within the exception

to sovereign immunity set forth in Ex parte Young.

After the parties submitted briefs on that issue (see Docs. 22, 23), Magistrate

Judge Bowman set oral argument on the matter for September 18, 2019. Two weeks

before that hearing occurred, however, on September 6, 2019, the Saqrs filed a Motion

to Amend the Complaint (Doc. 28), to which they attached a Proposed Amended

Complaint (Doc. 28-1).

In their Proposed Amended Complaint, the Saqrs add two UC officials as

Defendants—Andrew Filak Jr. and Laura Malosh. The Saqrs describe the two in the

Proposed Amended Complaint simply as “agents and decision makers [sic] of UC’s

medical school.” (Pls.’ Proposed Am. Compl. at ¶ 6, #175). Given that the Saqrs filed

their Motion to Amend only 12 days before the Court was set to hear oral arguments

regarding UC’s Motion for Judgment on the Pleadings related to the original

Complaint, the parties were unable to fully brief the Saqrs’ Motion to Amend prior to

that hearing. Thus, Magistrate Judge Bowman did not hear arguments regarding the

Saqrs’ Motion to Amend during the September 18, 2019 hearing.

Five days after the hearing, on September 23, 2019, Magistrate Judge Bowman

issued the Second R&R (which is the first of the two R&Rs under consideration in

this Order). In that R&R, she recommended that this Court grant UC’s Motion for

Judgment on the Pleadings. (Sept. 23, 2019 R&R, Doc. 30). The Magistrate Judge

determined that, notwithstanding her previous R&R, in which she found that Ahmad

could pursue an ADA Title II claim to the extent he sought prospective relief, in fact

sovereign immunity bars such claims, just like claims for money damages. That is

because, although the Saqrs sought prospective relief (the type of relief that Ex parte

Young allows), the Saqrs had alleged wrongdoing only by UC itself—a public

university in Ohio that is an “arm of the State.” As an arm of the State, it is immune

from suits in federal court that seek either monetary damages or prospective relief.

The Second R&R pointed out, however, that although sovereign immunity bars

claims (including claims for prospective relief) against a State, it does not bar suits

in federal court seeking prospective relief against officials who are acting on behalf of

the State. (Id. at #191). Based on that observation, coupled with a cursory review of

the Saqrs’ then-recently filed Proposed Amended Complaint, Magistrate Judge

Bowman noted in the Second R&R that it appeared the Saqrs had attempted to

remedy the sovereign immunity problem as to their injunctive relief claims by adding

two individuals affiliated with UC’s College of Medicine as defendants—Filak and

Malosh. (Id. at #194–95). But, as the Saqrs’ Proposed Amended Complaint merely

mentions the two individuals’ names and generically describes them as “agents and

decision makers [sic] of UC’s medical school,” (Pls.’ Proposed Am. Compl. at ¶ 6,

#175), Magistrate Judge Bowman further observed that “[i]t is not entirely clear

[from the Proposed Amended Complaint] whether the newly proposed individual

Defendants” might qualify as state officials acting on behalf of Ohio, and therefore

trigger the exception to the sovereign immunity doctrine that otherwise bars the

Saqrs’ Title II claims. (Sept. 23, 2019 R&R at #194–95).

Accordingly, in the Second R&R, Magistrate Judge Bowman recommended

that this Court grant UC’s Motion for Judgment on the Pleadings, but dismiss

without prejudice the Saqrs’ ADA Title II claims, to see whether they could plead a

viable claim by reference to particular state officials. (Id. at #195). On the same day

that she issued that R&R, September 23, 2019, she also issued an Order imposing a

deadline of September 30, 2019, by which the Saqrs could choose either (1) to rest on

their September 6, 2019 Motion to Amended the Complaint, or (2) to file a new Motion

to Amend with a different proposed amended complaint to account for the concerns

that the Magistrate Judge had identified. (See Doc. 31).

Notably, none of the parties objected to Magistrate Judge Bowman’s Second

R&R. And the Saqrs did not file a new Motion to Amend their Complaint by the

September 30, 2019 deadline set forth in the September 23, 2019 Order. The Saqrs

thus elected to rest on their then-pending Motion to Amend with the Proposed

Amended Complaint that they attached to it.

In compliance with the schedule established by the September 23, 2019 Order,

UC filed a memorandum in opposition to the Saqrs’ Motion to Amend on October 4,

2019. (See Doc. 34). The Saqrs timely filed a reply brief on October 11, 2019. (See

Doc. 35-1). But the reply added two new wrinkles: (1) the Saqrs provided details, for

the first time, about Filak and Malosh’s administrative positions at UC’s College of

Medicine, and (2) they attached to their brief an “Amended Proposed Amended

Complaint.” The Saqrs contend that they did the latter to provide additional “clarity”

as to the claims alleged in their Proposed Amended Complaint. It appears more likely,

however, that the Saqrs’ outside-the-permitted-timeframe filing was instead an effort

to remedy the potential deficiencies in their Proposed Amended Complaint,

deficiencies that UC had asserted in its response brief. Consequently, UC filed a

Motion for Leave to File a Surreply or, in the Alternative, to Strike the Saqrs’

“Amended Proposed Amended Complaint.” (See Doc. 36). Magistrate Judge Bowman

issued a notation order on October 18, 2019, which granted UC’s Motion for Leave to

File a Surreply. (See Dkt. Entry Oct. 18, 2019).

Less than two months later, on December 2, 2019, Magistrate Judge Bowman

issued her Third R&R (which is the second of the two R&Rs under consideration now),

which recommends that this Court: (1) disregard the Saqrs’ allegations in their Reply

and its attached Amended Proposed Amended Complaint, and (2) deny the Saqrs

leave to file their Proposed Amended Complaint on futility grounds. (Dec. 2, 2019

R&R, Doc. 40). As to the latter, Magistrate Judge Bowman found that, regarding the

claims that the Court had previously dismissed, the Saqrs simply re-allege in their

Proposed Amended Complaint the same allegations that they had previously stated

in their original Complaint, and so, for the reasons set forth in the First R&R (which

this Court adopted in its March 15, 2019 Order), the Saqrs’ unchanged allegations

still fail. As for the Saqrs’ discrimination claims arising under Title II of the ADA

that were seeking prospective relief, Magistrate Judge Bowman concluded in the

Third R&R that the doctrine of sovereign immunity bars those claims because,

although the Saqrs named two state officials as defendants, they did not establish

that these state officials had any connection with an allegedly unlawful act against

the Saqrs. That type of “connection,” Magistrate Judge Bowman held, is required for

the Ex parte Young exception to sovereign immunity to apply. (Id. at #281). Finally,

Magistrate Judge Bowman recommended that, even if the claims in the Proposed

Amended Complaint were not futile, this Court should still deny the Saqrs’ Motion to

Amend. That is because allowing their requested amendment would cause undue

delay, given that the Saqrs filed that Motion more than a year after they had filed

their original Complaint, nearly six months after they had informed the Court that

they did not anticipate adding parties or claims, and “long after UC had engaged in

extensive paper discovery and had deposed both [the Saqrs].” (Id. at #284–85).

Nine days after Magistrate Judge Bowman issued the Third R&R, on

December 11, 2019, this case was transferred to the undersigned judge. Five days

later, on December 16, 2019, the Saqrs filed an Objection (see Pls.’ Obj., Doc. 42),

which opposes the entire Third R&R (id. at #295) and argues that: (1) the Proposed

Amended Complaint is not futile; (2) amendment would not unduly delay this action

or prejudice UC; and (3) the Court should consider the Amended Proposed Amended

Complaint, which is also not futile (id.). UC then filed a response. (See Doc. 43). Thus,

currently before the Court are the September 23, 2019 Second R&R, to which no party

has objected, and the Saqrs’ Objection to the December 2, 2019 Third R&R.3

3 There are other related matters currently before the Court that are not addressed here but

delayed the pending action. More specifically, on January 10, 2020, the Saqrs’ counsel filed a

separate action before this Court only on behalf of Omar Saqr alleging the same common set

of facts and claims in that lawsuit as alleged here. (See No. 1:20-cv-32). When Omar’s counsel

LAW AND ANALYSIS

A. The September 23, 2019 R&R.

On September 23, 2019, Magistrate Judge Bowman issued a R&R

recommending that this Court grant UC’s Motion for Judgment on the Pleadings

because the Saqrs’ Complaint failed to state a claim against any state officials and

therefore the doctrine of sovereign immunity bars their suit. (See Sept. 23, 2019 R&R

at #193–94). The September 23, 2019 R&R advised the parties that a failure to object

within the 14 days specified by that R&R may result in forfeiture of rights on appeal,

which includes the right to District Court review. (See id. at #196 (first citing Thomas

v. Arn, 474 U.S. 140, 149–53 (1985); then United States v. Walters, 638 F.2d 947 (6th

Cir. 1981))).

Now, the time period for objection has long-since run, and no party has

objected. See 28 U.S.C. § 636(b)(1)(C). “There is no indication that Congress, in

enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate’s

report to which no objections are filed.” Thomas, 474 U.S. at 152; see also Berkshire

v. Beauvais, 928 F.3d 520, 530–31 (6th Cir. 2019) (noting that “fail[ure] to file an

objection to the magistrate judge’s R&R … is forfeiture”).

filed the second action on January 10, 2020, however, he failed to identify the current action

as a “related case” on the Civil Cover Sheet. (See id., Doc. 1-2). As a result, Omar’s second

lawsuit was assigned to another judge of this Court. About a month and a half later, on

February 21, 2020, UC filed in this action a Notice of Related Case (Doc. 44) that requested

that the undersigned judge preside over both cases. A week later, on February 28, 2020, the

Court granted UC’s request, and so Omar’s second action was transferred to the undersigned

judge. (Doc. 46). And roughly a month after that, on March 20, 2020, the defendants in that

case—all allegedly officials at UC’s College of Medicine—moved to dismiss all of Omar’s

claims given that Omar already asserted the same claims for relief in this action, albeit

against other defendants. That Motion to Dismiss later became ripe for the Court’s review on

April 27, 2020.

Thus, the Court ADOPTS Magistrate Judge Bowman’s September 23, 2019

R&R (Doc. 30), and thereby GRANTS UC’s Motion for Judgment on the Pleadings

(Doc. 19) and DISMISSES WITHOUT PREJUDICE the Saqrs’ discrimination

claims arising under the Title II of the ADA as pled in the Complaint (Doc. 1).

B. The Saqrs’ Objection To The December 2, 2019 R&R.

As discussed above, the Saqrs filed their Motion to Amend the Pleadings about

two weeks before Magistrate Judge Bowman issued the Second R&R on September

23, 2019, which recommends dismissing the Saqrs’ discrimination claims arising

under Title II of the ADA. And the Saqrs decided to stand by their Motion to Amend

and the Proposed Amended Complaint that they had attached to that Motion rather

than file a new motion to amend in response to the September 23, 2019 R&R, as the

Magistrate Judge’s separate Order said they could do. So, in the Third R&R issued

on December 2, 2019, Magistrate Judge Bowman addressed and ultimately

recommended denying the Saqrs’ Motion to Amend, as the allegations in the Proposed

Amended Complaint were futile, except for Ahmad Saqr’s Title VI claim.

The Saqrs now object to that R&R on the ground that the Proposed Amended

Complaint adequately states a discrimination claim under Title II of the ADA.

Separately, the Saqrs argue that the Court should consider the claims set forth in the

Amended Proposed Amended Complaint, a new pleading that they attached for the

first time to their reply brief, and that they assert is not futile. Although the Saqrs’

objections perhaps fall a little short of the requirements in Federal Rule of Civil

Procedure 72(b)(2) and 28 U.S.C. § 636(b)(1)(C) mandating that they identify specific

objections to specific portions of the Third R&R, the Court gives their objections the

benefit of the doubt, and addresses each of the Saqrs’ arguments in turn.

1. Legal Standard.

If a party objects to an R&R within the allotted time, the district court must

review de novo any portion of the magistrate judge’s report “that has been properly

objected to.” Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1). Here, the Saqrs seek

to amend only their allegations related to Count I of their Proposed Amended

Complaint. (See Pls.’ Mot. to Am. #172; Pls.’ Obj. at #298). And UC is attacking the

sufficiency of those proposed pleadings. Thus, the Court must determine with fresh

eyes whether the Saqrs may amend their Complaint. See Fed. R. Civ. P. 72(b).

Federal Rule of Civil Procedure 15(a) allows a party to amend their pleading

once as a matter of course if done within 21 days of filing the original pleading.

Otherwise they may do so only with leave of the Court, which “shall be freely given.”

Fed. R. Civ. P. 15(a). The Saqrs did not amend their pleadings within 21 days of filing

their initial Complaint (which they did on August 3, 2018). Accordingly, Rule 15(a)(2)

allows the Saqrs to file their amended pleading (whether the Proposed Amended

Complaint or the Amended Proposed Amended Complaint) only with leave of the

Court. They sought such leave as to the Proposed Amended Complaint, but declined

to seek leave as to the Amended Proposed Amended Complaint, or at least they

declined to do so within the time period the Magistrate Judge provided in her

September 23, 2019 Order, which invited them to file a renewed motion to amend.

In reviewing that request, the Court should consider whether, among other

things, the proposed amendment would be futile. See Forman v. Davis, 371 U.S. 178,

182 (1962). A proposed amendment is futile when that complaint could not survive a

Rule 12(b)(6) motion to dismiss. Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir.

2005) (citation omitted); Riverview Health Inst. LLC v. Med. Mut., 601 F.3d 505, 512

(6th Cir. 2010) (citation omitted). Thus, the first question here is whether the Saqrs’

Proposed Amended Complaint (which was filed before the Second R&R, and which is

the pleading that the Magistrate Judge considered in the Third R&R) contains

“sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Williams v. City of Cleveland, 771 F.3d 945, 949 (6th Cir. 2014) (citation

omitted).

In assessing plausibility, the Court must construe the factual allegations in

the Proposed Amended Complaint in the light most favorable to the Saqrs, accepting

their allegations as true and drawing all reasonable inferences in the Saqrs’

favor. Wilburn v. United States, 616 F. App’x 848, 852 (6th Cir. 2015). But a pleading

must offer more than mere “labels and conclusions,” because “‘a formulaic recitation

of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Nor is a court

required to accept “[c]onclusory allegations or legal conclusions masquerading as

factual allegations[.]” Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634

(6th Cir. 2007). Thus, in reviewing the Proposed Amended Complaint for futility, the

Court must distinguish between “well-pled factual allegations,” which must be

treated as true, and “naked assertions,” which need not be. See Iqbal, 556 U.S. at 628

(“Nor does a complaint suffice if it tenders naked assertions devoid of further factual

enhancement.”) (alteration and quotation omitted); see also Ctr. for Bio-Ethical

Reform, Inc. v. Napolitano, 648 F.3d 365, 375 (6th Cir. 2011) (finding that because

some of the plaintiff’s factual allegations were “not well-pleaded[,]” “their conclusory

nature ‘disentitles them to the presumption of truth’”) (citing Iqbal, 556 U.S. at

681); Miller v. Md. Dep’t of Nat. Res., No. 18-2253, 2020 WL 3127788, at *4 (4th Cir.

June 12, 2020) (“[T]he court need not accept unsupported or conclusory factual

allegations devoid of any reference to actual events ….”).

2. The Saqrs’ Discrimination Claim Arising Under Title II Of The

ADA As Alleged In The Proposed Amended Complaint Fails As A

Matter Of Law.

In the Saqrs’ Motion to Amend, the Saqrs seek to change only the allegations

related to their first cause of action, which claims that UC, Filak, and Malosh violated

Title II of the ADA by failing to accommodate the Saqrs’ disabilities and then

dismissing them from the school. Based on that theory, the Saqrs seek injunctive

relief against Filak and Malosh, who, according to the Proposed Amended Complaint,

“are agents and decision makers [sic] of UC’s medical school.” (Proposed Am. Compl.

at ¶ 6, #175). The Saqrs further state that all claims against Filak and Malosh “are

for their actions in their official capacity.” (Id.). The parties dispute whether the

Eleventh Amendment bars the Saqrs’ first cause of action.

On its face, the Eleventh Amendment bars “any suit in law or equity,

commenced or prosecuted against one of the United States.” U.S. Const. amend. XI.

In Ex parte Young, 209 U.S. 123 (1908), however, the Supreme Court announced an

exception to Eleventh Amendment immunity for prospective relief claims against

individual state officials in their official capacities. To trigger that exception, two

conditions must be met. First, the plaintiff’s action must seek prospective relief that

ends a continuing violation of federal law. Carten v. Kent State Univ., 282 F.3d 391,

395 (6th Cir. 2002). And, second, the defendant-state officials must have “some

connection” to that ongoing violation. See Ex parte Young, 209 U.S. at 157–59. That

is, “[a] plaintiff must allege facts showing how a state official is connected to, or has

responsibility for, the alleged constitutional violations.” Top Flight Entm’t, Ltd. v.

Schuette, 729 F.3d 623, 634 (6th Cir. 2013) (citing Floyd v. County. of Kent, 454 F.

App’x 493, 499 (6th Cir. 2012)).

Although the Saqrs’ Proposed Amended Complaint is not a model of clarity,

the Court concludes that its allegations satisfy the first Ex parte Young requirement.

The Saqrs seek prospective relief in the form of an Order reinstating them as

students. And that prospective relief is designed to prevent alleged ongoing federal

law violations: UC wrongfully dismissing the Saqrs from its College of Medicine and

failing to accommodate them for their disabilities while they were students. (See

Proposed Am. Compl. at ¶¶ 60-69, #181). The Sixth Circuit has found that claims for

reinstatement and disability accommodations are prospective in nature, and thus

can, in appropriate circumstances, fit within the contours of Ex parte Young. See

Carten, 282 F.3d at 396 (citing Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453,

459 (6th Cir. 1998)) (reinstatement); see also Ability Ctr. of Greater Toledo v. City of

Sandusky, 385 F.3d 901, 912–13 (6th Cir. 2004) (accommodation or “meaningful

access to public services”).

The Saqrs’ Proposed Amended Complaint falls short, however, as to the latter

requirement. That is, although Ex parte Young allows for claims seeking prospective

relief against state officials, not just any state official will do—as noted above, the

official must have “some connection” to the ongoing federal violation. Durham v.

McWhorter, 798 F. App’x 533, 534 (6th Cir. 2020) (citing Young, 209 U.S. at 157–59)

(“[A] Plaintiff may seek a prospective injunctive against state officials who have ‘some

connection’ to an ongoing constitutional violation.”). This “connection” requirement

tracks, or perhaps more accurately largely dovetails with, Article III’s standing

requirements—injury in-fact, causation and redressability. See, e.g., Dig. Recognition

Network, Inc. v. Hutchinson, 803 F.3d 952, 957 (8th Cir. 2015) (referring to the

inquiries as “related” and noting that if an official has “‘some connection with the

enforcement’ of a state law for purposes of the Ex Parte Young doctrine, then the case

or controversy requirement of Article III was satisfied”); Cressman v. Thompson, 719

F.3d 1139, 1146 n.8 (10th Cir. 2013) (citing Planned Parenthood of Idaho, Inc. v.

Wasden, 376 F.3d 908, 919 (9th Cir. 2004)) (observing that “there is a common thread

between Article III standing analysis and Ex parte Young analysis”). But see

Jacobson v. Fla. Sec'y of State, 957 F.3d 1193, 1210 (11th Cir. 2020) (quoting Lewis

v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (stating that “Article III

standing and the proper defendant under Ex parte Young are ‘separate’

issues”)). Consistent with that notion, showing “connection” under Ex parte Young

requires plaintiffs to allege facts showing both (1) that the state official played some

role in causing the ongoing harm of which plaintiff complains (or that there is a

reasonable prospect that the official will cause imminent future harm to the plaintiff),

and (2) that an injunction against that official will be likely to provide redress.

The Saqrs Proposed Amended Complaint stumbles on both grounds. Let’s start

with the causation aspect of the “some connection” requirement. That is typically

stated in terms of “responsibility”: “A plaintiff must allege facts showing how a state

official is connected to, or has responsibility for, the alleged constitutional violations.”

Top Flight Entm’t, 729 F.3d at 634. See also, e.g., Osterback v. Scott, 782 F. App'x 856,

859 (11th Cir. 2019) (quoting Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,

1336-37 (11th Cir. 1999)) (“‘Unless the state officer has some responsibility to enforce

the statute or provision at issue, the ‘fiction’ of Ex parte Young cannot operate.’”).

That is what Ex parte Young means by “some connection with the enforcement of the

act.” See 209 U.S. at 157 (“[The] officer must have some connection with the

enforcement of the act, or else it is merely making him a party as representative of

the state, and thereby [impermissibly] attempting to make the state a party.”) (first

emphasis added).

In their proposed pleading, the Saqrs do not allege that Filak or Malosh are

the officials who had responsibility for making either the decision to dismiss the

Saqrs, including whether to deny them accommodations, or the decision not to re-

admit them (which is presumably the act that matters for Ex parte Young purposes

because the doctrine only allows for consideration of ongoing violations, as opposed

to past harms). Indeed, in the entirety of the Saqrs’ Proposed Amended Complaint,

the Saqrs mention Filak and Malosh exactly once, describing them collectively as

“agents and decision makers [sic]” of UC’s College of Medicine. (Proposed Am. Compl.

at ¶ 6, #175).4 That generalization doesn’t cut it. By failing to include any allegations

as to positions that Filak and Malosh hold at UC’s College of Medicine, or the

authority that they purportedly exercise over medical students’ eligibility and

accommodation status, the Saqrs do not connect their alleged harm to actions that

Filak or Malosh allegedly took.

The disconnect between Filak and Malosh and the Saqrs’ alleged harm is

highlighted by the fact that the Proposed Amended Complaint alleges that several

apparently separate institutions at UC (e.g., the PAC, the appeal panel, and the

College of Medicine) each contributed in different ways to violating the Saqrs’ federal

rights, and yet the Saqrs never explain how (or if) Filak and Malosh relate to any of

those institutions. For example, the Saqrs claim that the PAC, which consists of 30

“faculty members,” communicates with students who are struggling and decides

whether to recommend that a struggling student should be dismissed from UC’s

4 The Court notes that the Saqrs have since provided additional information about the

administrative positions that Filak and Malosh hold at UC’s College of Medicine.

Unfortunately for the Saqrs, they offered that additional information for the first time in

their Reply Brief in support of their Motion for Leave to Amend. (Pls.’ Reply, Doc. 35, #217).

As parties cannot raise new arguments in a Reply Brief, much less new allegations against

individuals whom the Saqrs intend to bring in as defendants in this action, the Court will not

consider that information in determining whether the Saqrs’ Proposed Amended Complaint

alleges that Filak and Malosh have “some connection” with their discrimination claim. See

OnX USA, LLC v. Sciacchetano, No. 1:11-cv-2523, 2012 WL 2191206, at *3 (N.D. Ohio June

14, 2012) (refusing to perform an “analysis … requir[ing] consideration of matters outside

the pleadings” because that would “draw[] the court beyond the bounds of inquiry required

by a motion to amend”).

College of Medicine. (Proposed Am. Compl. at ¶¶ 10–11, 16, #176–77). If the PAC

recommends dismissal, then the student can appeal that recommendation. (Id. at

¶ 12, #176). Three faculty members (which the Court assumes are faculty members

of UC’s College of Medicine, rather than faculty members at any UC program) sit on

the appeal panel. (Id. at ¶ 13). The PAC and the student present information to the

appeal panel. (Id.). But although the Proposed Amended Complaint clarifies the

procedure, it does not explain the roles, if any, that Filak or Malosh played in it.

Adding to the confusion, the Saqrs also allege that some unidentified “agents”

of UC actually sought to help the Saqrs overcome their struggles as medical students.

For example, the Saqrs claim that one agent, “who represents minorities, circulated

an email stating that Ahmad did not receive the same level of support that [UC]’s

other students received.” (Id. at ¶ 30, #178). Similarly, the Saqrs allege that “[o]ne of

[UC]’s other agents informed Ahmad that she was unaware of other students having

to undergo such a rigorous exam schedule.” (Id. at ¶ 38, #179). The Proposed

Amended Complaint neither explains who these agents are nor addresses whether

one of them may be Filak or Malosh. In short, there is simply no allegation that the

named officers “caused” the ongoing harm of which the Saqrs complain. Without that,

they cannot show the “connection” necessary to avail themselves of the Ex parte

Young exception to state immunity.

The Saqrs also fall short on the related redressability aspect of the “connection”

requirement. To take advantage of Ex parte Young, “[t]he official against whom suit

is brought must have the authority to perform the act sought” by the prospective

relief. Ling v. Univ. of Tenn., No. 04-2484, 2005 WL 8156688, at *2 (W.D. Tenn. Jan.

4, 2005). See also Masengill v. Univ. of Tenn., No. 3:98-cv-137, 2001 WL 34079321, at

*6 (E.D. Tenn. Oct. 22, 2001) (rejecting an Ex parte Young claim because “it [did] not

appear to be within [defendant’s] authority to override the employment decision of

the state university and the county agency”). Here, the Saqrs have not alleged

whether Filak or Malosh holds a position at UC’s College of Medicine that grants

authority to implement the injunctive relief that the Saqrs desire. Thus, the Saqrs

have not shown that the prospective relief they seek (injunctive relief against these

two individual officials) would provide redress for the ongoing harm that the Saqrs

allegedly suffer.

For both of these reasons, the Saqrs’ discrimination claims arising under Title

II of the ADA, at least as pled in their Proposed Amended Complaint, are futile. They

have failed to include the allegations necessary to allow them to take advantage of

Ex parte Young to avoid the sovereign immunity that bars those claims.

The Saqrs don’t meaningfully refute that reasoning. Rather, they assert that

because Magistrate Judge Bowman previously issued an R&R (her first one, back in

February 2019) in which she found the Saqrs had pled facts that adequately

supported discrimination claims seeking injunctive relief against UC, the Saqrs need

not now plead any additional facts about the two officials’ connections to Saqrs’

alleged harms. (Pls.’ Obj. at #299–300). But the Second R&R, an R&R to which no

one objected, expressly found that this prior determination, the one on which the

Saqrs now rely, was wrong. (See Sept. 23, 2019 R&R at #193 (stating that, in the

previous R&R, “[t]he undersigned assumed the application of the [Ex parte Young]

doctrine without benefit of briefing, and with the presumption that courts should be

loath[] to grant motions to dismiss on issues that have not been squarely presented.

In hindsight, and with the benefit of UC’s newly briefed Rule 12(c) motion that does

squarely address this issue, the undersigned concludes that the Ex parte Young

exception does not apply and does not save Plaintiffs’ claims for prospective relief”)).

And the Magistrate Judge was correct the second time around. As discussed above,

Ex parte Young explains that its exception to sovereign immunity applies only if the

defendant-official has “some connection with the enforcement of the act”—otherwise

the plaintiff “is merely making [the official] a party as representative of the state,

and thereby [impermissibly] attempting to make the state a party.” 209 U.S. at 157.

The Saqrs contend that they can still proceed because official capacity suits

are, in general, “another way of pleading an action against an entity of which an

officer is an agent.” (Pls.’ Obj. at #300 (citing Kentucky v. Graham, 473 U.S. 159

(1985))). But that argument merely highlights their underlying problem—to the

extent that they are seeking to proceed directly against the State (or an arm of the

State), the Saqrs run squarely into sovereign immunity. The Ex parte Young doctrine

provides a path around that bar, but only if the Saqrs can make, and have made, the

necessary allegations to take advantage of that doctrine. As noted above, they have

failed to do so here. Thus, the Proposed Amended Complaint is futile, and the Court

declines to allow the Saqrs to file it.

3. The Court Will Not Consider The Saqrs’ Untimely “Amended

Proposed Amended Complaint,” Which Magistrate Judge

Bowman Previously Allowed Them To File And The Saqrs Chose

Not To.

As the Court also discussed above, the Saqrs attached an “Amended Proposed

Amended Complaint” to their Reply Brief in a last-ditch effort to support their Motion

to Amend. That is a non-starter. The Saqrs cannot use their Reply Brief to raise new

claims or issues, let alone to advance an entirely new proposed pleading. That is

particularly so here, as Magistrate Judge Bowman specifically provided the Saqrs an

opportunity to file a new motion to amend, to which they could have attached their

new pleading, and even expressly notified them of the weaknesses that she saw in

the Proposed Amended Complaint attached to their then-pending Motion to Amend.

The Saqrs did not avail themselves of her offer, but rather elected to stand by their

Proposed Amended Complaint. Parties are bound by their litigation choices, and the

Saqrs made their choice here.

At the very least, the Saqrs would need to move anew to amend their complaint

to add allegations not included in their Proposed Amended Complaint. But, any such

motion would come more than a year after the Saqrs filed their initial Complaint,

thus long after the deadline to amend set forth in the Calendar Order. So the Saqrs

would need to establish the additional showing of good cause for modifying the

Calendar Order, see Fed. R. Civ. P. 6(b)(4), which they have not done, nor even tried

to do. Thus, for present purposes, the Court need not explore whether the claims in

the Saqrs’ Amended Proposed Amended Complaint are likewise futile or would fall

under the Ex parte Young exception, given that the Court declines on procedural

grounds to allow the Saqrs to amend their pleading.

CONCLUSION

For the reasons set forth above, the Court ADOPTS Magistrate Judge

Bowman's September 23, 2019 R&R (Doc. 30), to which no party objected. Separately,

the Court OVERRULES the Saqrs’ Objections (Doc. 42) to the December 2, 2019

R&R (Doc. 40). Accordingly, the Court ADOPTS Magistrate Judge Bowman’s

December 2, 2019 R&R (Doc. 40), GRANTS Defendants’ Motion for Judgment on the

Pleadings (Doc. 19), and DENIES the Sagqrs’ Motion for Leave to File an Amended

Complaint (Doc. 28). As a result, the Court DISMISSES all of the Saqrs’ claims that

they allege in their Complaint, except for Ahmad’s claim arising under Title VI. That

sole remaining cause of action shall move forward.

SO ORDERED.

September 8, 2020

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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