Bonds v. Berne Union Local Schools

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TODD BONDS, :

: Case No. 2:20-cv-5367

Plaintiffs, :

: Chief Judge Algenon L. Marbley

v. :

: Magistrate Judge Kimberly A. Jolson

:

BERNE UNION LOCAL SCHOOLS, et al., :

:

Defendants. :

OPINION & ORDER

This matter is before this Court on numerous motions from multiple parties, including

Motions for Judgment on the Pleading from Defendants Berne Union Local School District Board

of Education (“the Board”), Craig Heath, John Parker and Daniel Snivley (ECF No. 26) as well as

from Defendant Scott Hainer (ECF No. 31). This Court also entertains Defendant Elizabeth

Cooke’s Motion to Dismiss (ECF No. 36) and Plaintiff’s Motion for Entry of Default (ECF No.

42), Motion to Strike (ECF No. 43) and Motion for Default Judgment (ECF No. 55).

Pursuant to the following analysis, Defendants’ Motions (ECF Nos. 26, 31, 36) are

GRANTED. Plaintiff’s Motion for Default Judgment (ECF No. 55) is GRANTED in part and

DENIED in part, while his Motions for Entry of Default (ECF No. 42) and to Strike (ECF No.

43) are DENIED.

I. BACKGROUND

Mr. Bonds initiated this suit stemming from a school district official denying him access

to a football game in which his son was playing. (See generally ECF No. 18). More broadly,

Plaintiff raises several allegations related to the custody of his fifteen-year-old son, several

allegedly unfulfilled public records requests as well as his previous counsel’s representation. (Id.).

This Court recently detailed the factual background of Plaintiff’s Complaint. (ECF No. 8 at 2–3).

Upon review, the factual background underpinning the Amended Complaint is almost identical to

that in Plaintiff’s initial complaint. As such, for the sake of brevity, this Court only details the

procedural developments since Plaintiff filed his Amended Complaint.

On May 17, 2021, this Court adopted in part and modified in part the Magistrate Judge’s

Report and Recommendation on Plaintiff’s initial Complaint and granted Plaintiff leave to amend.

(ECF No. 8). Shortly thereafter, attorney Elizabeth I. Cooke, of The Ohio State University,

Michael E. Moritz College of Law, Civil Clinic, filed a notice of appearance on Plaintiff’s behalf.

(ECF No. 10). Several months later, Ms. Cooke sought withdrawal, citing “fundamental

disagreement regarding the appropriate course of legal action.” (Id. at 6). The Court granted Ms.

Cooke’s Motion, and Plaintiff proceeded pro se. (ECF No. 17). On October 15, 2021, Plaintiff

filed his Amended Complaint, asserting claims against previously named Defendants Snively,

Heath, Parker, Armstrong, and Persinger-Brown, as well as claims against newly named

Defendants the Board, Cooke, and Hainer. (ECF No. 18). Plaintiff contemporaneously sought

leave to add Defendants Cooke and Hainer, which the Magistrate Judge granted. (ECF No. 19).

In the following months Defendants filed their respective dispositive motions (ECF Nos.

26, 31, 36) and Plaintiff filed several of his own (ECF Nos. 42, 43, 55). Each Motion has been

fully briefed and is ripe for resolution by this Court.

II. LEGAL STANDARDS

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted

by lawyers,’ and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383

(6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Nevertheless, “basic

pleading essentials” still are required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Among

such essentials are the obligations under Federal Rule of Civil Procedure 8(a) to provide “a short

and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement

of the claim showing that the pleader is entitled to relief.”

A motion for judgment on the pleadings attacks the sufficiency of the pleadings and is

reviewed under the same standard applicable to a motion to dismiss under Rule 12(b)(6). Ziegler

v. IBP Hog Mkt., 249 F.3d 509, 511–12 (6th Cir.2001). “A motion to dismiss for failure to state a

claim is a test of the plaintiff’s cause of action as stated in the complaint, not a challenge to the

plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir. 2005).

Consequently, the Court must construe the complaint in the light most favorable to the nonmoving

party, accept all factual allegations as true, and make reasonable inferences in favor of the non-

moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d

430, 434 (6th Cir.2008). The Court is not required, however, to accept as true mere legal

conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 555 (2007)).

Federal Rule of Civil Procedure 12(b)(2) provides for the dismissal of a claim based on the

lack of personal jurisdiction. When challenged, the plaintiff bears the burden of establishing

personal jurisdiction over each defendant “independently.” Beydoun v. Wataniya Rest. Holding,

Q.S.C., 768 F.3d 499, 504 (6th Cir. 2014) (quotation omitted). District courts have three options

for ruling on a motion to dismiss under Rule 12(b)(2). Theunissen v. Matthews, 935 F.2d 1454,

1458 (6th Cir. 1991). Where, as here, the court considers only the parties’ written submissions,

“the plaintiff must make only a prima facie showing that personal jurisdiction exists.” Id. The

plaintiff cannot “rest on his pleadings to answer the movant's affidavits, but must set forth, by

affidavit or otherwise[,]... specific facts showing the court has jurisdiction.” Id. (quotation

omitted). When ruling on a motion to dismiss without conducting an evidentiary hearing, courts

must consider the pleadings and affidavits in the light most favorable to the nonmoving party.

Beydoun, 768 F.3d at 504.

Rule 12(b)(5) provides that an action may be dismissed for “insufficient service of

process.” The requirements for service of process are provided in Rule 4 of the Federal Rules of

Civil Procedure. A plaintiff “bears the burden of perfecting service of process and showing that

proper service was made.” Sawyer v. Lexington–Fayette Urban County Government, 18 Fed.

App’x 285, 287 (6th Cir. 2001) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)). Courts

may look to “record evidence” and “uncontroverted affidavits” to determine whether plaintiffs

have met this burden. Pension Ben. Guar. Corp. v. Uforma/Shelby Bus. Forms, Inc., 2014 WL

221941, at *2 (S.D. Ohio 2014). “A district court judgment dismissing a complaint for failure to

effect timely service of process” is reviewed under the abuse of discretion standard. Abel v. Harp,

122 F. App’x 248, 250 (6th Cir. 2005) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996);

Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994)).

III. LAW AND ANALYSIS

In his Amended Complaint, Plaintiff asserts ten (10) causes of action against eight (8)

Defendants. (See generally ECF No. 18). Given that multiple Defendants (through multiple

motions) have moved to dismiss the claims asserted against them, this Court evaluates each claim

in the Amended Complaint and the parties’ arguments thereto.1 First, however, the Court evaluates

the adequacy of service of the Amended Complaint and resolves Plaintiff’s Motions.

1 This Court only discusses the claims in the Amended Complaint that the moving Defendants seek to dismiss.

Accordingly, as detailed at the conclusion of this Opinion and Order, the claims not discussed remain live. This

includes Count Two, with is asserted against Defendant Armstrong only. (ECF No. 18 at ¶¶ 62–67).

A. Service of the Amended Complaint on Defendants Hainer & Cooke

In their respective motions, both Defendants Hainer and Cooke argue that because they

were not properly served, the claims against them should be dismissed pursuant to Federal Rule

of Civil Procedure 12(b)(5). (ECF No. 31 at 5–7; ECF No. 36 at 6–7). Mr. Hainer argues service

was deficient because, although a copy of the Amended Complaint and summons were mailed to

his place of employment, he did not receive them, as they were signed for by someone named

“DB.” (ECF No. 31 at 6). Mr. Hainer represents that “DB” is not his authorized agent and argues

that Plaintiff has not presented any evidence to the contrary. (Id.). Ms. Cooke argues that she was

not properly served as the Amended Complaint was sent to an Ohio State University building at

which she does not work, and because the return receipt bears no signature. (ECF No. 36 at 7).

Both Defendants maintain that given Plaintiff’s improper service, this Court lack jurisdiction over

the claims asserted against them and dismissal is appropriate. (Id. at 8; ECF No. 36 at 7).

In response, regarding Defendant Hainer, Plaintiff argues that “[t]he Court gave the proper

Orders regarding serving the summons for Hainer[,]” and because “DB” signed the return receipt,

service was proper. (ECF NO. 38 at 4–5). Plaintiff maintains that he was granted leave to proceed

in forma pauperis, which requires he be afforded “assistance [with] all the documents for the initial

service.” (Id. at 4). Furthermore, concerning Ms. Cooke, Plaintiff argues that she was properly

served, and regardless, she “clearly knew she was being sued by virtue of the filing [of an]

Answer.” (Id. at 3–4). Given that each was properly served, Plaintiff maintains that this Court has

jurisdiction over the claims asserted against Defendants Hainer and Cook. (Id.).

Federal Rule of Civil Procedure 12(b)(5) provides that an action may be dismissed for

“insufficient service of process.” The Sixth Circuit has held that “without proper service of

process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named

defendant.” King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012). Absent “personal jurisdiction, a

federal court is powerless to proceed to an adjudication.” Boulger v. Woods, 917 F.3d 471, 476

(6th Cir. 2019) (quoting King, 694 F.3d at 655); see also Chulsky v. Golden Corral Corp., No.

1:19-CV-875, 2022 WL 293340, at *4 (S.D. Ohio Feb. 1, 2022) (“If a court lacks personal

jurisdiction over a party, for example, a court is powerless to take further action against that

party.”) (collecting cases) (internal quotations omitted). When a plaintiff is proceeding in forma

pauperis, as Plaintiff is here, the U.S. Marshall must effectuate service upon the defendants:

Together, Rule 4(c)(2) and 28 U.S.C. 1915(c) stand for the proposition that when a

plaintiff is proceeding in forma pauperis the court is obligated to issue plaintiff’s

process to a United States Marshal who must in turn effectuate service upon the

defendants, thereby relieving a plaintiff of the burden to serve process once

reasonable steps have been taken to identify for the court the defendants . . . .

Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) (emphasis added). Explicit in this mandate, as is

generally the case under Rule 4, an in forma pauperis plaintiff must still take “reasonable steps to

identify . . . the defendants named in the complaint.” Id.

Here, this Court finds that Plaintiff did not take “reasonable steps to identify . . . the

defendants named in the complaint.” Id. Neither Mr. Hainer nor Ms. Cooke were personally

served, nor were copies of the Amended Complaint mailed to their dwelling. Fed. R. Civ. P. 4(e).

This was not a “failure by the district court and the Marshals Service to carry out their duties[,]”

but rather Plaintiff’s failure properly to identify Defendants residence or place of employment. See

cf. Donaldson v. United States, 35 F. App’x 184 (6th Cir. 2002) (recognizing that once an in forma

pauperis plaintiff has properly identified the defendants in the complaint, any deficiency in service

falls on the district court and/or the Marshal). Moreover, despite Plaintiff’s arguments to the

contrary, “the fact that the defendants had actual notice of the suit is . . . immaterial.” Ecclesiastical

Ord. of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988) (citing Sieg v. Karnes,

693 F.2d 803, 807 (8th Cir. 1982)).

Accordingly, given that Plaintiff failed adequately to serve Defendants Hainer and Cooke,

this Court lack personal jurisdiction over the claims asserted against them. As such, Defendants

Hainer and Cooke are hereby DISMISSED from this case.

* * *

As detailed above, absent personal jurisdiction, this Court is powerless to proceed to an

adjudication. For the sake of thoroughness, and considering the liberal construction afforded to

pro se filings, this Court nonetheless evaluates the merits of Plaintiff’s claims against Defendants

Hainer and Cooke. As detailed below, these claims fail as a matter of law.

B. Plaintiff’s Motions

Between March and May 2022, Plaintiff filed a Motion for Entry of Default (ECF No. 42),

a Motion to Strike (ECF No. 43) and a Motion for Default Judgment (ECF No. 55). As responses

were either timely filed, or the time for doing so has passed, each Motion is ripe for review.

1. Motion for Entry of Default against Defendant Cooke

Plaintiff’s March 3, 2022, Motion for Entry of Default against Defendant Cooke seemingly

asks for both an entry of default pursuant to Federal Rule of Civil Procedure 55(a) and a default

judgment pursuant to Rule 55(b)(2). (ECF No. 42). Plaintiff alleges Ms. Cooke’s responsive

pleading was filed beyond the twenty-one (21) day deadline imposed by the Federal Rules, and

therefore, default is appropriate. (Id.). Ms. Cooke timely responded to Plaintiff’s Motion, arguing

that she has still not been properly served, and regardless she has moved to dismiss, each which

prevents the entry of default. (ECF No. 46). Because she has not “failed to plead or otherwise

defend” this action, Ms. Cooke asserts that both entry of default and default judgment are

inappropriate. (Id. at 3–4). This Court agrees.

Rule 55(a) provides that when a party against whom a judgment for affirmative relief is

sought fails to plead or otherwise defend itself and that failure is demonstrated by affidavit or

otherwise, the clerk must enter the party’s default. Fed. R. Civ. P. 55(a). Once a default is entered,

well-pled facts of the complaint concerning liability are accepted as true. United States v.

Cunningham, No. 07–cv212, 2009 WL 112831, at *3 (S.D. Ohio Jan.15, 2009); U.S. S.E.C. v.

Sierra Brokerage Servs. Inc., No. C2-03-CV-326, 2009 WL 862307, * 1 (S.D. Ohio Mar. 31, 2009)

(“To obtain a default judgment . . . there must first be an entry of default . . . .”)).

Beginning with Plaintiffs’ request for default judgment, that request is “premature because

an entry of default has not yet been entered.” Sierra Brokerage Servs. Inc., 2009 WL 862307 at

*1; United Coin Meter Co. v. Seaboard Coastline RR., 705 F.2d 839, 844 (6th Cir.1983) (setting

forth the proper sequence for motions under Rule 55). Furthermore, Plaintiff has not sufficiently

specified in his Motion the amount he seeks in damages and has not provided supporting affidavits

or calculations for those figures. Sierra Brokerage Servs. Inc., 2009 WL 862307 at *1.

Plaintiff’s request for the entry of default is similarly flawed. “[A]n entry or judgment of

default may be entered appropriately only when a defendant has been properly served.” Tower v.

Amazon.com, Inc., No. 15-CV-2405, 2016 WL 4398521, * 6 (S.D. Ohio Aug. 18, 2016) (citing

Sandoval v. Bluegrass Regional Mental Health-Mental Retardation Bd., No. 99-5018, 2000 WL

1257040, at *5 (6th Cir., July 11, 2000)). As detailed above, Plaintiff failed properly to serve Ms.

Cook. (See supra at Part III(A)). As such, neither an entry of default nor default judgment is

appropriate. See id. (denying motion for default, where plaintiff had not properly served

defendants). Accordingly, Plaintiff’s Motion for Entry of Default (ECF No. 42) is DENIED.

2. Motion for Default Judgment against Defendants Armstrong & Brown-Persinger

On May 5, 2022, Plaintiff moved for default judgment against Defendants Leah Armstrong

and Melissa Brown-Persinger. (ECF No. 55). Here again, despite the title of Plaintiff’s Motion, he

appears to be seeking both an entry of default pursuant to Federal Rule of Civil Procedure 55(a)

and a default judgment pursuant to Rule 55(b)(2). Plaintiff asserts that both Ms. Armstrong and

Ms. Brown-Persinger have been properly served, and the time for them to file responsive pleadings

has since passed. (Id. at 3). Given this, Plaintiff asks that the “Clerk enter a [d]efault.” (Id. at 4).

As previously detailed, “[t]o obtain a default judgment . . . there must first be an entry of

default . . . . Sierra Brokerage Servs. Inc., 2009 WL 862307 at *1. To the extent Plaintiff seeks

default judgment against Ms. Armstrong and Ms. Brown-Persinger, that would be premature as

there has yet to be an entry of default against these Defendants.

Plaintiff has also requested the entry of a default under Rule 55(a). (ECF No. 55 at 4).

Having reviewed the record and Plaintiff’s supporting affidavit (id. at 6), the Court finds that an

entry of default pursuant to Fed. R. Civ. P. 55(a) is appropriate based on Ms. Armstrong’s and Ms.

Brown-Persinger’s failure to answer the Complaint and to otherwise plead or defend themselves

in this action. Accordingly, Plaintiff’s Motion for Entry of Default against Defendants Armstrong

and Brown-Persinger is GRANTED, while his Motion for Default Judgment against these

Defendants is DENIED without prejudice. The clerk is DIRECTED to file an entry of default

against Defendants Armstrong and Brown-Persinger.

3. Motion to Strike

Shortly after seeking default against her, Plaintiff moved to strike Defendant Cooke’s

Motion to Dismiss (ECF No. 36) arguing that it is untimely. (ECF No. 43 at 3). Given this, and

because Ms. Cooke was (allegedly) properly served, Plaintiff argues that Ms. Cooke’s untimely

Motion should be stricken. (Id. at 3–4). Ms. Cooke responded timely to Plaintiff’s Motion,

asserting that she had not been properly served, and therefore, her Motion to Dismiss was not late.

(ECF No. 48 at 1–2). Moreover, Ms. Cooke argues that Plaintiff’s Motion is inapplicable because

her Motion is not a “pleading” within the meaning of Fed. R. Civ. P. 12(f). (Id. at 3).

Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, “[t]he court may strike from

a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” “The plain language of this Rule indicates that motions to strike may only be made in

relation to pleadings, which are defined by Rule 7(a) [as] . . . complaints, answers, replies to

counter-claims, answers to cross-claims, third-party complaints, and third-party answers.”

Newsom v. Xenia City Sch. Dist. Bd. of Educ., No. C-3-95-173, 1996 WL 1089865, *2 (S.D. Ohio

Mar. 25, 1996). Though motions to strike are “disfavored” when they “serve only to delay,” courts

may grant such motions when they “expedite” cases by “remov[ing] unnecessary clutter.” Heller

Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989). In particular, “courts have

liberal discretion to strike inappropriate filings.” Sheets v. U.S. Bank, Nat’l Assoc., 2014 WL

5499382, at *2 (E.D. Mich. Oct. 30, 2014).

As Ms. Cooke argues, “under the Federal Rules of Civil Procedure, motions

are not pleadings, and therefore are not subject to motions to strike under Rule 12(f).” Newsom,

1996 WL 1089865 at *2; Dawson v. City of Kent, 682 F. Supp. 920, 922 (N.D. Ohio 1988) (Rule

12(f) “relates only to pleadings and is inapplicable to other filings”); Ernest Seidelman Corp. v.

Mollison, 10 F.R.D. 426, 427 (S.D. Ohio 1950) (“Rule 12(f) is applicable only to motions to strike

portions of ‘pleadings.”’). Because Ms. Cooke’s Motion to Dismiss is not considered a “pleading,”

Plaintiff cannot rely on Rule 12(f) to strike it from the docket. Moreover, even were Rule 12(f) the

proper vehicle, as detailed above, Plaintiff failed properly to serve Ms. Cooke. Therefore, Ms.

Cooke’s Motion cannot be considered untimely. See Lloyd v. Pokorny, No. 2:20-cv-2928, 2020

U.S. Dist. LEXIS 260349, at *9 (S.D. Ohio June 11, 2020)(“[I]f the [defendants] were never served

with the Amended Complaint, their time to respond never began to run.”). Accordingly, Plaintiff’s

Motion to Strike (ECF No. 43) is DENIED.

C. Defendants’ Arguments on Plaintiff’s Amended Complaint

1. Count One – Discrimination

Plaintiff alleges that Defendant Armstrong and Fairfield County Jobs and Family Services2

“intentionally denied informing [him] of his son’s mother being incarcerated[,]” in an effort to

deny Plaintiff temporary custody of his son during that period. (ECF No. 18 at ¶¶ 58–59). The

motivation for this, says Plaintiff, was “racism” and “negative stereotypes [on the] worthlessness

of black fathers.” (Id., ¶ 59). In his Motion for Judgment on the Pleadings, Defendant Snively

argues that this claim should be dismissed against him because he is not included in any of the

factual allegations in the Amended Complaint. (ECF No. 26 at 5). Plaintiff does not address this

argument in his response to Snively’s Motion.

While Defendants Snively and Cooke are identified in the heading of Count One of the

Amended Complaint, the claim does not include any factual allegations against either. (See ECF

No. 18 at ¶¶ 56–61). Accordingly, because Plaintiff has failed “plausibly [to] allege” Defendant

Snively or Cooke was involved in the alleged discrimination, this claim is hereby DISMISSED

against each. This discrimination claim may still proceed against Defendant Armstrong.

2 Fairfield County Jobs and Family Services has been dismissed as a Defendant in this action. (ECF No. 8 at 5).

2. Count Three – Discrimination

In his second discrimination claim, Plaintiff alleges that the Board, Ms. Cooke, and Mr.

Snively3 discriminated against him based on race. (ECF No. 18 at ¶¶ 68–78). The Board argues

that Plaintiff’s discrimination claim fails because he has not included any allegations that the Board

treated him differently than similarly-situated individuals. (ECF No. 26 at 6). The Board asserts

that the Amended Complaint is void of any factual allegations on whether other parents had greater

access to the requirements to attend football games as well as on any discriminatory policy that

precluded Plaintiff from attending his son’s football game. (Id.). Ms. Cooke asserts that this claim

fails because Plaintiff does not allege that she treated him differently than other similarly situated

individuals. (ECF No. 36 at 9). Moreover, Ms. Cooke argues that Plaintiff’s claim is truly one for

legal malpractice, the pleading requirements for which he also fails sufficiently to allege. (Id. at

7–8). In response to both Motions, Plaintiff does not substantively argue this claim. (See ECF Nos.

34, 44). Rather, Plaintiff hurls ad hominem attacks at Ms. Cooke and the Board. (Id.).

The Equal Protection Clause provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. To establish a claim

of race discrimination against the Board, under the Equal Protection Clause, Plaintiff must

demonstrate that he was treated differently than non-minority parents. Soper v. Hoben, 195 F.3d

845, 852 (6th Cir. 1999). Similarly, to establish a claim of race discrimination against Ms. Cooke,

Plaintiff must demonstrate that he was treated differently than non-minority clients referred to the

University’s legal clinic. Id. Plaintiff’s equal protection claim fails because he has failed to identify

any specific similarly situated person or group who was treated differently than him. See Paterek

3 While the Board seeks the dismissal of this claim, Defendant Snively does not. (ECF No. 26 at 5 (“[O]nly the

discrimination claim against Snively should be permitted to proceed.”). As such, pursuant to this Court’s previous

analysis (ECF No. 8), Plaintiff’s second discrimination claim shall proceed against Defendant Snively.

v. Vill. of Armada, Mich., 801 F.3d 630, 649 (6th Cir. 2015) (quoting Ctr. for Bio-Ethical Reform,

Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011)). Without a viable allegation of disparate

treatment, Plaintiff fails the “threshold element of an equal protection claim.” Scarbrough v.

Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006); see also Ctr. for Bio-Ethical Reform,

648 F.3d at 379 (“To state an equal protection claim, a plaintiff must adequately plead that the

government treated [him] disparately as compared to similarly situated persons and that such []

treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.”)

Given the foregoing, Count Three of Plaintiff’s Amended Complaint is DISMISSED

against Defendants Cooke and the Board. As previously detailed (ECF No. 8), this claim shall

proceed against Defendant Snively.

3. Counts Four & Nine – Retaliation

In his first retaliation claim, Plaintiff alleges that Defendants Parker, Heath, Cooke, and the

Board retaliated against him in violation of federal law. (ECF No 18 at ¶¶ 79–96). In his second

retaliation claim, Plaintiff alleges that Defendants Parker, Heath, and the Board retaliated against

Plaintiff for filing this lawsuit by intentionally delaying providing the records he has requested.

(ECF No. 18 at ¶¶ 119–124). Defendants Parker, Heath, and the Board argue that Plaintiff’s

allegations on either claim are insufficient to establish a plausible claim that Plaintiff was retaliated

against or that he was subject to any “adverse action.” (ECF No. 26 at 7–9). Similarly, Ms. Cooke

argues that her actions within this litigation cannot be the causal connection required for a

retaliation claim, as the alleged adverse action predates her representation of Plaintiff. (ECF No.

36 at 12). In response, Plaintiff maintains that he has sufficiently pled a retaliation claim against

each Defendant. (ECF Nos. 34, 44). He alleges that Defendants Parker, Heath, Cooke and the

Board “block[ed] [his] emails” and had their legal counsel respond to his records requests, in

retaliation for pursuing litigation. (ECF No. 34 at 8–9). Regarding Ms. Cooke, Plaintiff argues that

she tried “to stagnant the progress of Plaintiff in this litigation by withdrawing from the case

because” he “questioned her suggestions.” (ECF No. 44 at 9).

Under the First Amendment, a plaintiff may bring a claim for retaliation when she suffers

an adverse consequence for engaging in protected conduct. To state a claim, a plaintiff must allege:

(1) he was engaged in protected conduct; (2) an adverse action was taken against him that would

deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a

causal connection between the protected conduct and the adverse action. Bell v. Johnson, 308 F.3d

594, 602 (6th Cir. 2002) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)).

Whether an activity is protected, or an action is adverse, depends on the context. Id. (citing

Thaddeus-X, 175 F.3d at 388).

Even considering the liberal construction afforded to pro se complaints, this Court finds

that Plaintiff has failed to allege a cognizable retaliation claim against any Defendant. Each

instance of protected conduct or adverse action alleged, fails to survive Rule 12(b)(6). Beginning

with the Board, Plaintiff asserts he was subject to two alleged adverse actions: (1) the sending of

his son’s report card by U.S. mail, rather than email; and (2) having the Board’s legal counsel

respond to his public records request. (ECF No. 18 at ¶¶ 85, 93). This Court does not find that

either of these actions would “‘deter a person of ordinary firmness’ from the exercise of the right

at stake.” Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (quoting Bart v. Telford, 677

F.2d 622, 625 (7th Cir. 1982)). As the Sixth Circuit held in Thaddeus-X, allowing a plaintiff to

bring First Amendment retaliation claims for any adverse action no matter how minor, “‘would

trivialize the First Amendment.’” 175 F.3d at 397 (quoting Bart, 677 F.2d at 625). Plaintiff’s

allegation that Defendants Parker and Heath failed to respond to his requests for information and

for various public records, also cannot constitute an “adverse action.” While this action is likely

too minor to be considered “adverse,” it fails for another reason. Plaintiff’s requests were

responded to by the Board’s legal counsel. Allowing their employer’s legal representative to

respond to Plaintiff’s requests, rather than responding themselves, does not constitute these

Defendants subjecting Plaintiff to “adverse action.”

Regarding Defendant Cooke, this Court finds that Plaintiff has not alleged a causal

connection between his request and the purported adverse action taken by Ms. Cooke. Plaintiff

makes no effort to establish how Ms. Cooke’s withdrawal from representation leads to Defendants’

filing dispositive motions in this case. Rather, he simply quotes the claim requirements and lobs

personal attacks at Ms. Cooke. See Iqbal, 129 S. Ct. at 1949 (recognizing that the Court is not

required to accept as true mere legal conclusions unsupported by factual allegations).

Accordingly, Counts Four and Nine of Plaintiff’s Amended Complaint are DISMISSED.

4. Count Five – Intentional Negligence

Plaintiff alleges, in Count Five of the Amended Complaint, that Defendants Snively and

the Board are liable for “intentional negligence,” for prohibiting him from attending his son’s

football games. (ECF No. 18 at ¶¶ 97–102). These Defendants argue that, because immunity

applies to the dissemination of information about the attendance requirements for athletic events,

Plaintiff’s negligence claim against them must be dismissed. (ECF No. 26 at 9–10). As a political

subdivision, and an employee thereof, the Board and Mr. Snively assert that they are immune from

liability unless an exception found under Ohio Revised Code § 2744.02(B) applies. (Id. at 10).

These Defendants argue that the only exception which could apply, the negligent performance of

a proprietary function, fails because Ohio courts have held that extracurricular activities are an

extension of the educational process and have found political subdivisions to be entitled to

immunity for claims stemming from such activities. (Id. (citing Perkins v. Columbus Bd. of Edn.,

10th Dist. No. 13AP-803, 2014-Ohio-2783, ¶12)). Plaintiff does not specifically respond to these

arguments, stating only that the Board “is [] negligent in the constant stonewalling for open records

and not allowing Plaintiff Due Process in regards to his son’s education.” (ECF No. 34 at 6).

As a political subdivision of the state defined under § 2744.01(F), the Board is entitled to

a broad grant of immunity from liability for “any act or omission of the political subdivision or an

employee of the political subdivision in connection with a governmental or proprietary function.”

Ohio Rev. Code Ann. § 2744.02(A)(1). There are, however, exceptions to this immunity, including

“where an injury resulting from the negligence of an employee of a political subdivision occurs

within or on the grounds of buildings that are used in connection with the performance of

governmental functions.” Hubbard v. Canton Bd. of Educ., 780 N.E.2d 543, 547 (2002) (defining

the scope of § 2744.02(B)(4)). The burden is on Plaintiff to establish that this, or any of the

exceptions to statutory immunity, apply in this case. Allen v. Clark, No. 1:13–CV–00326, 2014

WL 3016075, at *9 (S.D. Ohio July 3, 2014).

Plaintiff has not satisfied his burden. Plaintiff does not defend his negligence claim against

the Board or Mr. Snively in any of his pleadings, let alone argue that an exception statutory

immunity applies to his claim. Since Plaintiff presents no facts or argument to defend his

negligence claim against them, the Board and Mr. Snively City may be considered immune from

these claims. Accordingly, Plaintiff’s Intentional Negligence claim is DISMISSED.

5. Count Six – Due Process

Next, Plaintiff alleges that the Board’s “policies grossly and blatantly infringe upon the

rights of non-custodial parents.” (ECF No. 18 at ¶ 106). Plaintiff maintains that these policies, as

enforced by Defendant Snively, deprived him of his right to due process. (Id.). The Board and Mr.

Snively argue that this claim fails because Plaintiff has not alleged any governmental action that

deprived him of a fundamental right. (ECF No. 26 at 11). Rather, say these Defendants, Plaintiff

missed one football game because he did not have a voucher. (Id.). “The voucher requirement did

not amount to a substantive due process violation and, therefore, the claim should be dismissed[,]”

they argue. (Id.). As before, Plaintiff does not substantively respond to Defendants’ arguments on

this claim. (See ECF No. 34).

Substantive due process is “‘[t]he doctrine that governmental deprivations of life, liberty

or property are subject to limitations regardless of the adequacy of the procedures employed.’”

Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014) (citation omitted). Substantive due process

affords only those protections so rooted in the traditions and conscience of our people as to be

ranked as fundamental. In re City of Detroit, 841 F.3d 684, 699 (6th Cir. 2016). “These rights are

‘implicit in the concept of ordered liberty, such that neither liberty or justice would exist if they

were sacrificed.’” Id. (citation omitted). Thus, the list of fundamental rights “is short” and “seldom

expanded.” Id. “Rights derived from state law, as opposed to the constitution, usually do not make

the cut.” Id. As such, most state-created rights that qualify for procedural due process protections

do not rise to the level of substantive due process protection. Id. The Sixth Circuit has held that

“under rational basis review, . . . a purported rational basis may be based on ‘rational speculation

unsupported by evidence or empirical data’ and need not have a foundation in the record.” Midkiff

v. Adams Cnty. Reg’l Water Dist., 409 F.3d 758, 770 (6th Cir. 2005).

This Court finds that Plaintiff has not alleged a violation of a fundamental right in the

context of the substantive due process claim. Therefore, the Court will apply rational-basis review.

See Stolz v. J & B Steel Erectors, Inc., 439 F. Supp. 3d 980, 989 (S.D. Ohio 2020) (explaining that

“in the absence of any fundamental right” a due process challenge receives only rational basis

review). Defendants assert that the reasons Plaintiff was denied access to his son’s football game

was that he failed to present a ticket voucher as required under the school’s policy. This is certainly

a rational basis for denying Plaintiff entry to the game. See In re Flint Water Cases, 384 F. Supp.

3d 802, 844 (E.D. Mich. 2019) (“Under rational basis review, official decisions are afforded a

strong presumption of validity. . . . And even at the motion to dismiss stage, this presents a

formidable bar for plaintiffs to surmount.”).

Accordingly, Plaintiff’s Due Process claim is hereby DISMISSED.

6. Count Seven – Ohio’s Open Records Law

Plaintiff alleges that the Board violated Ohio’s Open Records Law by failing to respond to

his records request regarding his son’s suspension. (ECF No. 18 at ¶¶ 110–114). Furthermore,

Plaintiff asserts that, as the public records director for the Ohio State University, Defendant Hainer,

failed to respond fully to his public records request for several of Defendant Cooke’s emails. (Id.).

The Board asserts that, because mandamus is only the appropriate remedy to compel compliance

with the Ohio’s Public Records Act, Plaintiff’s claim is not properly before this Court. (ECF No.

26 at 11). Defendant Hainer, meanwhile, argues that “this Court lacks personal jurisdiction because

Ohio—and by extension state instrumentalities (the University) and agents (Hainer)—has not

consented to be sued in federal court” for alleged public records violations. (ECF No. 31 at 3).

Because there has been no such consent, Mr. Hainer argues that sovereign immunity bars

Plaintiff’s claim. (Id. at 5). In response, Plaintiff argues that Defendant Hainer “is not entitled [to]

any form of immunity as Open Records Acts do not employ immunity for trying to circumvent a

citizen’s rights.” (ECF No. 38 at 6). Because the requested records relate to Ms. Cooke’s

representation of him, Plaintiff asserts he is entitled to them.4 (Id. at 7).

4 Plaintiff does not respond to the Board’s arguments on this claim.

Both Defendants are correct. First, as argued by the Board, “[m]andamus will lie and is

indeed the appropriate remedy to compel a public office to disclose records.” Smith v. City of

Dayton, Ohio, 68 F.Supp.2d 911, 916 (S.D. Ohio 1999); Gray v. City of Cincinnati, No.

1:03CV119, 2006 WL 2193187, *11 (S.D. Ohio Aug. 1, 2006) (granting defendants summary

judgment on plaintiff’s public records claim because it was not filed in mandamus). Accordingly,

as he did not pursue the proper vehicle for his claim, Plaintiff’s Ohio’s Open Records Law claim

against the Board is DENIED without prejudice.

Meanwhile, Ohio State University is a state instrumentality and Hainer a state agent. See

Hall v. Med. College of Ohio at Toledo, 742 F.2d 299, 302 (6th Cir. 1984); Bailey v. Ohio St.

Univ., 487 F. Supp. 601, 604–06 (S.D. Ohio 1980). While the State of Ohio, as well as its

instrumentalities and agents, have consented to be sued in Ohio’s courts of claims (O.R.C. §

2743.02(A)(1)), they have not waived immunity from suit in federal court. See Johns v. Supreme

Court of Ohio, 753 F.2d 524, 527 (6th Cir.1985). The Ohio Public Records Act’s specific waiver

of immunity in its courts of claims is not a proxy for waiving Ohio’s instrumentalities’ Eleventh

Amendment immunity from suit in federal courts. Id. (citing Edelman v. Jordan, 415 U.S. 651,

677 n. 19, (1974)). Accordingly, because Defendant Hainer is entitled to Eleventh Amendment

immunity from suit before this Court, the claims against him are DISMISSED.

7. Count Eight – Conspiracy

Plaintiff alleges that Defendants Heath, Parker, Persinger-Brown and the Board conspired

together to withhold information that Plaintiff’s son had broken the law on school grounds. (ECF

No. 18 at ¶¶ 115–118). In response, Defendants Heath, Parker and the Board argue that Plaintiff

has failed to plead an actionable civil conspiracy claim because Plaintiff does not include any

specific facts establishing a conspiracy, let alone an intercorporate conspiracy with Defendant

Persinger-Brown. (ECF No. 26 at 12). Moreover, say these Defendants, Plaintiff does not allege

that a conspiratorial plan existed based on racial animus. (Id.). Plaintiff responds that this claim

“is clearly warranted as the element of state actors in a plot to deprive Plaintiffs rights (access to

his son’s educational records, public records and more) show the elements of a [c]onspiracy . . . .”

(ECF No. 34 at 9). By working together to deny him access to his son’s education, Plaintiff alleges

these Defendants have conspired to deprive him of his constitutional rights. (Id.).

This Court previously denied Plaintiff’s civil conspiracy claim without prejudice, holding

that Plaintiff failed to state a claim because he had not made any specific allegations of a

conspiracy between Mr. Snively and Ms. Persinger-Brown, the only non-employee defendant in

this matter. (ECF No. 8 at 11–12). This Court finds that Plaintiff’s claim fares no better on

amendment. The Amended Complaint contains merely three substantive sentences on the alleged

civil conspiracy. (See ECF No. 18 at ¶¶ 116–118). Once again, Plaintiff has failed to make any

specific allegations of a conspiracy between Mr. Snively and Ms. Persinger-Brown. The simple

claim that Defendants “are in cahoots in not informing [Fairfield County Jobs and Family Services]

that a minor child has broken the law on school grounds[,]” is not sufficient. Accordingly, and for

the same reasons detailed in its previous Opinion and Order (ECF No. 8), Plaintiff’s civil

conspiracy claim is hereby DISMISSED.

8. Count Ten – Spoliation

Plaintiff levies a spoliation claim against Defendants Snively, Cooke and the Board,

arguing that Mr. Snively deleted his Instagram account and Ms. Cooke recorded a Zoom meeting

with Plaintiff and discarded it. (ECF No. 18 at ¶¶ 130, 131). The Board and Snively argue that this

claim should be dismissed as there is no independent cause of action for spoilation under federal

law. (ECF No. 26 at 13). The Board and Snively maintain that Plaintiff’s claim also fails under

state law because there are no allegations that Snively deleted his accounts with the intent of

disrupting Plaintiff’s case or that the deletion of this information somehow disrupts Plaintiff’s

ability to pursue his case or caused him damages. (Id. at 14). Ms. Cooke, meanwhile, argues that

the Zoom meeting at issue was not recorded and accordingly no recording was destroyed. (ECF

No. 36 at 10). Even still, argues Ms. Cooke, Plaintiff has failed to assert a prima facie case of

spoliation. (Id. at 11). Plaintiff responds, albeit only to Defendant Cooke, by arguing that he has

offered sufficient evidence for a prima facie spoliation claim. (ECF No. 44 at 5). Beyond this

assertion, however, Plaintiff does not offer any substantive argument.

While federal law does indeed govern sanctions as they pertain to trial and discovery after

Adkins, there is no independent federal cause of action, or “substantive law,” for spoliation of

evidence. Cummerlander v. Patriot Preparatory Acad. Inc., 86 F. Supp. 3d 808, 828 (S.D. Ohio

2015); Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009). To recover on a claim for spoliation

of evidence under Ohio law, a plaintiff must prove: (1) pending or probable litigation; (2)

knowledge that litigation exists or is probable; (3) willful destruction of evidence, designed to

disrupt plaintiff’s case; (4) disruption of the plaintiff’s case; and (5) damages proximately caused

by the defendant’s acts. Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29 (1993).

As Defendants correctly argue, “[t]here is simply no evidence in the record to support

willful destruction, as required to sustain a cause of action for destruction of evidence/spoliation.”

Nayyar v. Mount Carmel Health Sys., No. 2:10-CV-00135, 2013 WL 2418072, *10 (S.D. Ohio

June 3, 2013). Plaintiff has presented no evidence which would even suggest that the motivating

factor behind Mr. Snively deleting his social media account was this litigation or motivated by any

other animus. Moreover, regarding Ms. Cooke, Plaintiff has not rebutted her contention that no

recordings were ever made, let alone deleted. Given these factual insufficiencies, Plaintiff has

failed to state a claim for spoliation and this claim is DISMISSED. Nayyar, 2013 WL 2418072 at

*10 (dismissing plaintiffs state law spoliation claim where there was no evidence of record that

defendant willfully destroyed the documents at issue).

IV. CONCLUSION

Pursuant to the following analysis, Defendants’ Motions (ECF Nos. 26, 31, 36) are

GRANTED. Plaintiff's Motion for Default Judgment (ECF No. 55) is GRANTED in part and

DENIED in part, while his Motions for Entry of Default (ECF No. 42) and to Strike (ECF No.

43) are DENIED.

IT IS SO ORDERED.

Lx ell

CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 21, 2022

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