Miller v. Ohio Civil Rights Commission

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROSANNA L. MILLER, :

:

Plaintiff, : Case No. 2:21-cv-03973

:

v. : Chief Judge Algenon L. Marbley

:

OHIO CIVIL RIGHTS COMMISSION, et :

al., : Magistrate Judge Vascura

Defendants. :

OPINION & ORDER

This matter comes before the Court on Defendant Ohio Civil Rights Commission’s (the

“Commission”), Melody Smith’s (collectively, the “Commission Defendants”) Motion to Dismiss

(ECF No. 14); and Orthopedic One’s Motion for Summary Judgment (ECF No. 22). For the

reasons set forth more fully below, this Court GRANTS the Commission Defendants’ Motion to

Dismiss (ECF No. 14), and Orthopedic One’s Motion for Summary Judgment. (ECF No. 22).

I. BACKGROUND

The Court incorporates by reference the facts and procedural background set forth in its

previous Order denying Plaintiff’s Motion for Temporary Restraining Order. (ECF No. 29;

Opinion & Order). The relevant procedural history follows. After this action was removed to

federal court, Plaintiff proceeding pro se filed her Complaint on July 20, 2021. (ECF Nos. 1, 7).

There, Plaintiff asserts several legal theories, including challenges to Defendants’ conduct via1 42

U.S.C. §§ 12182, 12203 and existing state law analogues, Ohio Revised Code § 4112.02(G); 42

U.S.C. § 12102(A)–(C), OAC 4112-5-02(H), Ohio Revised Code 4112.01(A)(13), and 28 CFR §

1 Plaintiff cites to various sections of the relevant laws and regulations, often to sections that do not provide for a

private right of action. For example, Plaintiff liberally cites the definition section of 28 C.F.R. Part 36. This Opinion

will attempt to translate her comprehensive pleading approach.

35.108 et. seq.; federal informed consent regulations under 45 C.F.R. § 46.116; Ohio’s

promulgation of emergency mask orders under Revised Code § 119.03(G); and a relief provision

under 28 C.F.R. § 36.504.

On July 27, 2021, Orthopedic One filed its Answer. (ECF No. 9). Subsequently, the

Commission Defendants timely filed its Motion to Dismiss (ECF No. 14), and Orthopedic One

timely filed its Motion for Summary Judgment (ECF No. 22). After retaining counsel, Plaintiff’s

attorney filed his Notice of Appearance on February 05, 2022. (ECF No. 31). This Court then

granted counsel additional time to respond to the previously filed Motion to Dismiss and Motion

for Summary Judgment. (ECF No. 41).

Plaintiff timely filed her Response in Opposition to both outstanding Motions. (ECF Nos.

44, 47). Both Defendants timely filed their Replies. (ECF Nos. 46, 49). Defendants’ Motions are

now ripe for review.

II. STANDARD OF REVIEW

Rule 12(b)(1) provides that a defendant may move to dismiss based on a court's lack of

jurisdiction over the subject matter of the case. Jurisdiction in the federal courts is limited: it may

be based on a federal question, which is one “arising under the Constitution, laws, or treaties of

the United States,” or on diversity of citizenship where the sum in controversy exceeds $75,000.

28 U.S.C. §§ 1331, 1332. The plaintiff has the burden of proving subject matter jurisdiction when

it is challenged under Rule 12(b)(1). Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986).

Where a motion to dismiss presents alternative arguments, such as improper venue or failure to

state a claim, the court must address subject matter jurisdiction first. City of Heath v. Ashland Oil,

Inc., 834 F. Supp. 971, 975 (S.D. Ohio 1993) (citing Moir v. Greater Cleveland Reg'l Transit

Auth., 895 F.2d 266, 269 (6th Cir. 1990)).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a

failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a

motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are sufficient to raise a

right to relief above the speculative level and to state a claim to relief that is plausible on its face.”

Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009)). And although the court “must accept all well-pleaded factual

allegations in the complaint as true,” the court “need not accept as true a legal conclusion couched

as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotations omitted).

Finally, “[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for

relief.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Raymond v. Avectus Healthcare

Sols., LLC, 859 F.3d 381, 383 (6th Cir. 2017); Taylor v. City of Saginaw, 922 F.3d 328, 331 (6th

Cir. 2019).

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment is

appropriate “if the movant shows that there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law.” In evaluating such a motion, the evidence must

be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must

be drawn in the non-moving party's favor. United States Sec. & Exch. Comm'n v. Sierra Brokerage

Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep't of City of Zanesville,

463 F.3d 569, 572 (6th Cir. 2006)). This Court then asks “whether ‘the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting

Anderson v. Liberty Lobby, 477 U.S. 242, 251–52 (1986)). “[S]ummary judgment will not lie if

the dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. Evidence that is

“merely colorable” or “not significantly probative,” however, is not enough to defeat summary

judgment. Id. at 249–50.

On a motion for summary judgment, the initial burden rests upon the movant to present the

Court with law and argument in support of its motion as well as identifying the relevant portions

of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial

burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing

that there remains a genuine issue for trial. See Fed. R. Civ. P. 56(e).

III. LAW & ANALYSIS

A. Motion to Dismiss

The Commission moves to Dismiss on three bases under Rule 12(b): lack of subject matter

jurisdiction under (1); failure to state a claim under (6); and improper service of process under (5).

(ECF No. 14). The Court addresses these arguments in turn.

1. 12(b)(1)

§ 1983

First, to the extent Plaintiff asserts a claim under 42 USC § 1983, the Commission

Defendants argue they are either: (1) excluded by definition as to those a Plaintiff can assert a

§1983 suit against; or (2) otherwise immune from suit. The Commission construes Plaintiff’s

Complaint as potentially asserting a § 1983 claim when she states that “[r]espondents are

individually and collectively … engaged in and continue to be engaged in, a pattern and practice

of deliberately … retaliatory/coercive acts and conduct in violation of the Petitioner’s Federal

rights.” (Id. at 4) (citing ECF No. 7 at 7). Assuming that Plaintiff intended to assert a claim on

this basis, the Commission Defendants correctly states that they cannot be sued via this vehicle.

Plaintiff does not respond directly to the Commission Defendants’ arguments regarding the

applicability of §1983. Instead, she lodges a general critique that the Commission Defendants’

motion was “founded on the assumption that the claims arose out of § 1983, granting the motion

to dismiss on these grounds would be inappropriate under the applicable ADA law.” (Id.). These

non-responsive assertions, however, do little to disturb the Commission Defendants’ arguments.

The Commission Defendants correctly articulate the law: “neither a State nor its officials

acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep't of State

Police, 491 U.S. 58, 71 (1989); see also Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003)

(“[t]he need for this court to undertake a broad sovereign immunity analysis with respect to the §

1983 claims is obviated by the fact that the defendants in their official capacities are not recognized

as “persons” under § 1983.”). Generally, absent either a waiver from the state or Congress’s

abrogation of the state’s immunity pursuant to section 5 of the Fourteenth Amendment, such suits

are barred by the Eleventh Amendment. Will, 491 U.S. at 66. (citing Welch v. Texas Dept. of

Highways and Public Transportation, 483 U.S. 468, 472–473 (1987) (plurality opinion)). But

“[e]ven if [Ohio’s] sovereign immunity has been properly waived or abrogated for the purposes of

the federal statute the defendants allegedly violated, a § 1983 claim against the defendants in their

official capacities cannot proceed because, by definition, those officials are not persons under the

terms of § 1983.” Gean, 330 F.3d at 767 (6th Cir. 2003). Accordingly, this Court need not address

the Defendants’ arguments as to immunity because to the extent Plaintiff asserts a § 1983 against

the Commission Defendants, it fails as a matter of law. The Commission Defendant’s Motion to

Dismiss on this claim is GRANTED.

Judicial Review of Commission’s Investigation

The Commission Defendants also argue that to the extent Plaintiff seeks judicial review of

its “no probable cause” decision, this Court lacks jurisdiction. Plaintiff does not respond to this

argument.

The Commission Defendants argument is well taken. Gilbert v. Correction Reception Ctr.,

No. 2:07-CV-624, 2008 WL 4347231 (S.D. Ohio Sept. 19, 2008) (“[T]o the extent Plaintiff

challenges the OCRC's “no probable cause” determination and the adequacy of the investigation

leading up to it, this Court lacks jurisdiction to consider his claim.”). Under Ohio Revised Code

§ 4112.06 “Judicial Review,” the statute confers exclusive jurisdiction upon Ohio courts.

Specifically, section (A) provides:

Any complainant, or respondent claiming to be aggrieved by a final

order of the commission, including a refusal to issue a complaint,

may obtain judicial review thereof, and the commission may obtain

an order of court for the enforcement of its final orders, in a

proceeding as provided in this section. Such proceeding shall be

brought in the common pleas court of the state within any county

wherein the unlawful discriminatory practice which is the subject of

the commission's order was committed or wherein any respondent

required in the order to cease and desist from an unlawful

discriminatory practice or to take affirmative action resides or

transacts business.

Ohio Rev. Code § 4112.06(A) (emphasis added). Section (F) follows, stating “[t]he jurisdiction

of the court shall be exclusive and its judgment and order shall be final subject to appellate review.”

Ohio Rev. Code § 4112.06 (F). Federal courts in this state have held that the statutory language

above, when read together, does not allow this Court to hear such challenges. (“[F]ederal district

courts have neither original jurisdiction nor removal jurisdiction over the review proceedings.”)

Shoemake v. Mansfield City Sch. Dist. Bd. of Educ., 61 F. Supp. 3d 704 (N.D. Ohio 2014); Walker

v. Cognis Oleo Chemical, LLC, 2008 WL 2705190 (S.D. Ohio July 9, 2008); Hayner v. City of

Washington Court House, 2007 WL 38136 at *3–4 (S.D. Ohio Jan. 4, 2007); see also Ingram v.

OCRC, 67 Ohio App.3d 648, 588 N.E.2d 162, 163 (1990); Ohio Civil Rights Comm'n v. Ingram,

69 Ohio St.3d 89, 630 N.E.2d 669, 672 (1994).

Accordingly, the Commission Defendants’ Motion to Dismiss on this basis is GRANTED.

2. 12(b)(6)

Second, the Commission Defendants argue Plaintiff fails to state any claim against them,

let alone one under Title II of the ADA and state analogues. Even putting aside the series of

confusing citations to the definition section of Title II as well as similar state statutes and

regulations, the Commission Defendants maintain that Plaintiff does not notify them of the

improper conduct in which they allegedly engaged. Moreover, to the extend she challenges their

internal investigation process, this is not cognizable under the statutes and regulations Plaintiff

cites.

Rather than meet Defendants’ argument with any specificity, Plaintiff asserts that her

Complaint contained sufficient factual allegations to entitle her to relief. (ECF No. 44 at 3).

Additionally, she concludes by adding the conclusory declaration that “allowing ‘telehealth

services’ upon Plaintiff whose disability is protected under the ADA [is] in violation of Title II.”

(Id.).

As a threshold matter, it is helpful to review the statutes and regulations cited by Plaintiff

in her Complaint. In Count 1, she cites various sections of federal and state statues and regulations,

including 42 U.S.C. § 12102 (1)–(2); 28 C.F.R. § 35.108; Ohio Revised Code § 4112.01(A)(13);

and Ohio Administrative Code § 4112-05-02(H). Each of these citations, as the Commission

Defendants assert, are to the definition section of each statute or regulation, providing the relevant

definition of “disability.” For example, 42 U.S.C. § 12102(1) provides:

(1) Disability. The term “disability” means, with respect to an

individual—(A) a physical or mental impairment that substantially

limits one or more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such

an impairment (as described in paragraph (3)).

42 U.S.C. § 12102.

To state a claim under Title II of the Americans with Disabilities Act, a plaintiff must show:

“(1) that she is a qualified individual with a disability; (2) that she was excluded from participation

in a public entity’s services, programs, or activities or was otherwise discriminated against; and

(3) that such exclusion or discrimination was by reason of her disability.” Bedford v. Michigan,

722 F. App'x 515, 518 (6th Cir. 2018) (citing Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th

Cir. 2015)).

Assuming Plaintiff is able to meet the first element above, her Title II claim fails on the

second and third elements. She does not claim she was excluded or discriminated against on the

basis of her disability. Simply put, she asserts no facts that even suggest that she was treated

differently than any other complainant that interacts with the Commission. For this reason alone,

her claim fails. Moreover, Plaintiff fails to assert that she has been “excluded from participation

… or was otherwise discriminated against” by the Commission. Rather, what Plaintiff appears to

characterize as discriminatory conduct is instead her taking issue with the investigatory process of

the Commission and its decision not to take any action against her healthcare providers.

For example, she claims that because she “clearly qualifies for a disability,” that the

Commission should have simply taken her word for it. When the Commission requested Plaintiff’s

health information to discern, in part, whether she was discriminated against on the basis of her

disability, Plaintiff rejected this request. Instead, Plaintiff asserts that she “would have gladly

agreed to a physical endurance test.” It is unclear whether Plaintiff communicated this alternative

to the Commission.

In any event, however, how the Commission gathers evidence, makes its determinations,

and ultimately decides whether to pursue legal action is a matter of Ohio law. Plaintiff’s

disagreement with these underlying processes or the Commission’s eventual decision not to sue

her healthcare providers cannot, without more, sustain a discrimination charge. Indeed, as the

Commission Defendants have asserted, there is an existing device for challenging such decisions:

seeking judicial review in Ohio’s state courts.

The federal and state law claims of discrimination are DISMISSED and Plaintiff’s

challenge of the Commission’s decision is REMANDED to the Franklin County Court of

Common Pleas.

3. 12(b)(5)

Finally, the Commission Defendants move to Dismiss under 12(b)(5) for improper service

of process. Because this Court GRANTS the Commission’s Motion to Dismiss on an independent

basis, there is no need for this Court to consider its 12(b)(5) argument.

B. Motion for Summary Judgment

Orthopedic One moves this Court for Summary Judgment on Plaintiff’s claims, including

her ADA claims; alleged violations of federal informed consent regulations; challenge of the state

of Ohio’s mask orders; and action under 28 C.F.R. § 36.504. In her Response in Opposition,

Plaintiff responds to only one claim: her reasonable modification theory under the ADA.

There, Plaintiff devotes a significant amount of her briefing toward demonstrating she is

disabled under the ADA and that Orthopedic One is an entity covered by Title III of the ADA.

Additionally, Plaintiff demonstrates that the test the Court should employ from Access Ctr. for

Indep. Living v. WP Glimcher, Inc. is undisputed by the parties. See No. 3:15-CV-444, 2018 WL

2763453, at *4 (S.D. Ohio June 8, 2018). Instead, Plaintiff disputes whether “telehealth visits”

offered by Orthopedic One are a reasonable accommodation under the test articulated in WP

Glimcher, Inc. 2018 WL 2763453, at *4.

Although it is well-settled “that a motion for summary judgment may be filed prior to

discovery,” the thrust of Rule 56(b) is to ensure that “the non-moving party has had sufficient time

to engage in discovery.” Jefferson v. Chattanooga Pub. Co., 375 F.3d 461, 463 (6th Cir. 2004)

(citing Fed R. Civ. P. 56(b) and White's Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 232

(6th Cir. 1994) (emphasis added)). As identified by the Sixth Circuit, this value is reflected in

Rule 56(d): “[t]he purpose behind Rule 56(d) is to ensure that plaintiffs receive ‘a full opportunity

to conduct discovery’ to be able to successfully defeat a motion for summary judgment.’” Doe v.

City of Memphis, 928 F.3d 481, 490 (6th Cir. 2019). Yet, it is the non-moving party’s burden to

invoke the protection of this rule. As the Sixth Circuit held in Jefferson v. Chattanooga Pub. Co.:

Furthermore, [non-movant] never indicated, as Rule 56[] requires,

that he did not have a sufficient opportunity for discovery. Rule 56[]

provides that a party opposing a motion for summary judgment is

allowed to claim an inability to present facts essential to justify its

opposition to summary judgment, and in certain cases the district

court may postpone the motion and permit further discovery. It is up

to the party opposing the motion to take advantage of Rule 56[],

however, and to state why more discovery is needed.

375 F.3d 461, 463 (6th Cir. 2004) (Rule 56(f) was renumbered as Rule 56(d) as a part of the 2010

Amendments to the Federal Rules of Civil Procedure).

Here, Plaintiff not only fails to invoke the protection of 56(d), she instead, affirmatively

argues against Orthopedic One’s Motion for Summary Judgment on the merits. Although this

Court is cognizant of special considerations taken for pro se litigants, Plaintiff has been represented

since the beginning of February in the matter. More importantly, it was Plaintiff’s counsel, not

Plaintiff that filed the Response in Opposition to Orthopedic One’s Motions for Summary

Judgment. As such, Orthopedic One’s Motion for Summary Judgment is ripe for review.

To support its Motion, Orthopedic One contends that because Plaintiff failed to answer

Orthopedic One’s properly served Request for Admissions, this Court must treat those facts as

admitted. Rather than argue against this result, Plaintiff concedes that she already admitted these

facts. (See ECF No. 43 at 8) (citing ECF No. 22 at 3–6 and ECF No. 23-1 at 1–2) (“Since Plaintiff

admitted to these facts, and Orthopedic One acknowledged these facts as admitted by Plaintiff,

there is no disputing that Plaintiff was diagnosed and treated at Orthopedic One for Plaintiff’s

walking disability.”). Plaintiff then criticizes an apparent inconsistency between the denial of a

factual allegation in Orthopedic One’s Answer and the facts as presented in the Request for

Admissions: namely, whether Plaintiff was denied in-person medical treatment on April 24, 2020.

The purported inconsistency appears to be one of merely semantics.

In its Answer, Orthopedic One denies that it refused medical treatment to Plaintiff on the

day in question “for want of knowledge.” Orthopedic One then notes in its Motion for Summary

Judgment that it offered Plaintiff in-person medical treatment, but only if she agreed to wear a

mask. This discrepancy is entirely resolved by Orthopedic One’s Reply. There, Orthopedic One

explains it lacked knowledge of Plaintiff’s allegation because Plaintiff refers to “Resp III” as the

alleged actor in paragraph 14 of the Complaint—where Plaintiff asserts that she was denied

medical treatment—but fails to define that term. This, however, appears to be a typo by Plaintiff

as paragraph 6 of the Complaint defines Orthopedic One, among others, as “Resp II” when it likely

should have read “Resp III.” Thus, Orthopedic One’s Answer and then seemingly contradictory

Request for Admission discussing Plaintiff’s denial of service when she refused to wear a mask is

easily reconciled. For purposes of this motion, it is evident the parties do not dispute this fact.

Additionally, Plaintiff’s assertion that a genuine dispute of material fact exists as to the

accommodation offered by Orthopedic One is irrelevant. As is undisputed by the parties, Plaintiff

is required to show that her requested accommodation of “no mask” was “(1) reasonable; [and] (2)

necessary” under Access Ctr. for Indep. Living v. WP Glimcher, Inc. 2018 WL 2763453, at *4.

As this Court found in its Order and Opinion granting Defendants Mount Carmel’s and

Cornerstone’s Motions to Dismiss, Plaintiff failed to meet this burden.2 Accordingly, absent a

genuine dispute of material fact and Plaintiff’s inability to state a claim, Orthopedic One’s Motion

for Summary Judgment on Plaintiff’s Reasonable Modification theory under the ADA is

GRANTED.

Notably, this is the only argument Plaintiff chose to oppose in her Response. As such,

Orthopedic One is entitled to Summary Judgment on any remaining claims on two bases: (1)

waiver; and (2) because she fails to state a claim upon which relief can be granted. First, “[a]

plaintiff's failure to address a claim in response to a motion for summary judgment on that claim

‘demonstrates abandonment and waiver of the claim.’” Hua v. Home Depot U.S.A., Inc., 452 F.

Supp. 3d 698, 704 (E.D. Mich. 2020) (citing Brown v. VHS of Michigan, Inc., 545 F. App'x 368,

372 (6th Cir. 2013) (“[A] plaintiff is deemed to have abandoned a claim when a plaintiff fails to

address it in response to a motion for summary judgment.”); Clark v. City of Dublin, Ohio, 178 F.

App'x 522, 525 (6th Cir. 2006) (same)); Ramirez v. Bolster & Jeffries Health Care Grp., LLC, 277

F. Supp. 3d 889, 907 (W.D. Ky. 2017); Mullenix v. Eastman Chem. Co., 237 F. Supp. 3d 695, 710

(E.D. Tenn. 2017)). While a Court may not “grant summary judgment simply because the

2 Plaintiff erroneously attempts to apply this test to the alternative offered by Orthopedic One, an argument that

would shift the burden to Orthopedic One to demonstrate that its alternative was reasonable.

nonmovant has not responded,” the Court may grant such a motion when the Court “carefully

examine[s] [that motion] to ensure that the moving party has discharged its burden of showing an

absence of disputed material facts.” Mullenix, 237 F. Supp. 3d at 710. Here, the only facts relied

upon by Orthopedic One are expressly conceded by Plaintiff. Thus, Summary Judgment is

appropriate on these abandoned claims.

Next, Plaintiff’s claims fail on the merits. Though Orthopedic One moves for Summary

Judgment rather than a Motion to Dismiss like the other Resp III Defendants, the arguments are

similar. In Jefferson v. Chattanooga Pub. Co., the Sixth Circuit considered a similar scenario. 375

F.3d 461 (6th Cir. 2004). There, Plaintiff opposed a similarly early Motion for Summary

Judgement: it too was within six months of the movant’s Answer and before discovery.3 Id. at

463. The Court considered Plaintiff’s three arguments in opposition. Id. Plaintiff argues initially

that Defendant’s motion “merely stated that ‘[Plaintiff] failed to state a claim ... and ... failed to

allege facts on which relief may be granted.’” Id. Then, Plaintiff asserted that “the motion lacked

documentary support and thus did not satisfy the movant's burden under Rule 56(c).” Id. And

finally, “the district court should have converted the motion to a Rule 12(b)(6) motion because it

was filed prior to discovery.” Id.

The Sixth Circuit responded to the first two arguments by “reject[ing] [them] summarily.”

The Court stated, “to meet its burden as the moving party in a motion for summary judgment,

[Defendant] needed only to state that there is an absence of facts or evidence to support [Plaintiff’s]

claims.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) and Elkins v. Richardson–

Merrell, Inc., 8 F.3d 1068, 1071 (6th Cir. 1993)). Because the Court found that Defendant’s

3 Here, Orthopedic One served a Request for Admissions but otherwise the party’s have not engaged in any other

Discovery.

motion for summary judgment “states that [Plaintiff] failed to allege facts on which relief may be

granted[, Defendant] satisfied its burden.” Id.

Orthopedic One’s motion states “Plaintiff did not allege facts in her Complaint that

demonstrate Orthopedic One failed to make a reasonable accommodation.” (ECF No. 22 at 2).

Orthopedic One’s Motion for Summary Judgment arguments do not materially differ from Mount

Carmel’s and Cornerstone’s Motions to Dismiss. Absent the benefit of opposition briefing by

Plaintiff to these remaining claims, this Court adopts its conclusions from its recent Order and

Opinion dismissing each of Plaintiff’s claims against the other healthcare providers. (See Opinion

and Order, ECF No. 53).4 As the Sixth Circuit recognized in Jefferson v. Chattanooga Pub. Co.,

if a Plaintiff cannot state a claim, that claim cannot survive summary judgment. See 375 F.3d 461

(6th Cir. 2004). Accordingly, Orthopedic One’s Motion for Summary Judgment is also

GRANTED for all remaining claims: Retaliation under the ADA; alleged informed consent

violations; the illegality of the State of Ohio’s pandemic-era Mask Executive Orders; and 28 C.F.R.

§ 36.504.

IV. CONCLUSION

For the foregoing reasons, this Court GRANTS the Commission Defendants’ Motion to

Dismiss (ECF No. 14), and GRANTS Orthopedic One’s Motion for Summary Judgment. (ECF

No. 22). To the extent Plaintiff asserts a claim for judicial review of the Commission’s “no

4 This Court found that Plaintiff failed to state a claim against both Mount Carmel and Cornerstone Therapy concerning

(1) alleged violations of informed consent laws because, among other things, she admits she never wore a mask; (2)

any action under 28 C.F.R. § 36.504 because that regulation does not provide a private right of action; and (3)

Plaintiff’s challenge of Ohio’s Executive Orders regarding mask-mandates because these Defendants are not the state.

Finally, although it does not appear that Plaintiff was asserting a Retaliation claim under the ADA against Orthopedic

One, to the extent she does, it fails because she does not allege a causal connection.

probable cause” decision, that claim is REMANDED to the Franklin County Court of Common

Pleas.

IT IS SO ORDERED.

ALGENON L. MARB

CHIEF UNITED STATES DISTRICT JUDGE

DATED: April 8, 2022

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