Nolan v. Clark County Board of County Commissioners

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

RITA NOLAN,

Administrator of the Estate of

Kenneth Nolan,

Plaintiff, Case No. 3:21-cv-330

vs.

CLARK COUNTY BOARD OF District Judge Michael J. Newman

COUNTY COMMISSIONERS, et al., Magistrate Judge Caroline H. Gentry

Defendants.

______________________________________________________________________________

ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’

MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. No. 25); (2) DISMISSING

WITHOUT PREJUDICE THE CLAIMS AGAINST DEFENDANTS CLARK COUNTY

BOARD OF COMMISSIONERS, COMMISIONER MELANIE FLAX WILT,

COMMISSIONER LOWELL R. MCGLOTHIN, COMMISSIONER RICHARD L.

LOHNES, AND CLARK COUNTY SHERIFF DEBORAH K. BURCHETT; (3)

DENYING THE MOTION WITH RESPECT TO DEFENDANTS BALLARD AND

MCDUFFIE; AND (4) CLARIFYING THAT DEFENDANTS BALLARD, MCDUFFIE,

AND SMITH REMAIN IN THE LITIGATION

______________________________________________________________________________

This wrongful death case, applying Ohio law, is now before the Court on a Fed. R. Civ. P.

12(c) motion for judgment on the pleadings filed by Defendants Clark County Board of

Commissioners (“Clark County”); Commissioners Melanie Flax Wilt, Lowell R. McGlothin, and

Richard L. Lohnes (collectively, “the Commissioners”); Clark County Sheriff Deborah K.

Burchett (“Sheriff Burchett”); Clark County Deputy Brandon McDuffie (“Deputy McDuffie”);

and Nurse Janelle Ballard (“Nurse Ballard”). Doc. No. 25.1 Plaintiff Rita Nolan, Administrator

of the Estate of Kenneth Nolan (“the Estate”), opposes. Doc. No. 26. Defendants replied, making

1 Defendant Wade G. Smith, M.D. does not move for dismissal. Therefore, this order does not affect the

claims pled against him.

this motion ripe for review. Doc. No. 28.

I.

The following facts are taken as alleged in the amended complaint, the operative pleading

for deciding this motion. Doc. No. 12. On November 20, 2019, police officers in Springfield,

Ohio received reports of a commercial truck being driven erratically. Id. at PageID 33. According

to the amended complaint, the decedent, Kenneth R. Nolan (“Kenneth”), was the driver. Id. While

in a parking lot near the intersection of South Belmont Avenue and Sheridan Avenue in

Springfield, Kenneth backed into an alley to turn around, but he struck a fence. Id. He then turned

right on South Belmont, heading south. Id.

Springfield Police Department officers eventually pulled him over near the Wagon Wheel

Bar at 1005 South Burnett Road in Springfield. Id. They approached the car and asked for

Kenneth’s license and registration. Id. at PageID 34. Immediately, the officers noticed that

Kenneth “appeared uneasy on his feet and his speech was slowed” while he complied with their

request. Id. As they questioned Kenneth about whether he hit anything with his truck, they again

noted that his “speech was slow and he had many pauses.” Id. Although he told the officers that

he was not intoxicated and did not consume any alcohol or drugs, they administered a “Horizontal

Gaze Nystagmus test” (i.e., an eye test to detect intoxication) to verify his claims. Id.

Kenneth neither failed nor passed the test, but he was placed into custody because he could

not focus on the pen the officers used to conduct the test. Id. He was taken first to the Springfield

Police Department headquarters, where he gave a urine sample, but did not receive a breathalyzer

or breath test. Id. at PageID 35. That night, he was booked into the Clark County Jail. Id. Deputy

McDuffie performed a medical screening on Kenneth during his booking and concluded that he

did not appear to be under the influence of drugs or alcohol. Id. Notably, Deputy McDuffie did

not take Kenneth’s temperature. Id.

Clark County Jail personnel called Rita Nolan, Kenneth’s wife (and now-Administrator of

his estate), to ask if Kenneth had any medical conditions, to which she replied that she was not

aware of any. Id. She said that Kenneth seemed fine when he left that morning. Id.

Kenneth remained in jail that night until his court arraignment the next morning. Id.

However, at the arraignment, Kenneth had trouble walking and fell to the ground. Id. He was

taken back to jail. Id. at PageID 36.

Nurse Ballard serves as the dedicated jail nurse for the Clark County Jail. Id. at PageID

37. As alleged in the amended complaint, she runs several programs at the jail tasking her with

the responsibility to treat inmates supposedly under the influence of drugs and alcohol. Id. She

was specifically tasked with improving screening and testing procedures in the jail, including

determining when an inmate has a medical condition that merits treatment. Id. After Kenneth’s

fall at the arraignment, Nurse Ballard received reports from other inmates in the jail that Kenneth

“was trembling all over then passed out or had a seizure. He reportedly leaned against the wall

and slid down[,]” so she came to see him. Id. at PageID 36. Moreover, he injured his elbow at

some point before meeting with Nurse Ballard. Id.

Nurse Ballard found that Kenneth’s blood pressure was elevated, his heart rate exceeded

130 beats per minute, and his skin was warm. Id. Yet after Kenneth swore to Nurse Ballard that

he did not use drugs or alcohol, she left him in the general population of the jail—claiming she

would monitor him closely and review his symptoms with Wade G. Smith, M.D., her supervisor.

Id.

Once he returned to jail, Kenneth’s symptoms worsened. Id. His heart rate accelerated to

141 beats per minute, he was unsteady on his feet, and he could not sit alone without agitation. Id.

Once Nurse Ballard got word of this, she administered 100 mg of Librium—a medication used to

treat alcohol withdrawal—despite Kenneth’s insistence that he was not intoxicated. Id.

After taking Librium, Kenneth began trembling, had a seizure, and passed out. Id.

Noticing that he had a fever of 106 degrees, jail personnel transported him to the Springfield

Regional Medical Center. Id. In intensive care, the doctors discovered that Kenneth had

endocarditis—a heart infection—and sepsis. Id. at PageID 37. Kenneth died from his infection

eight days later on November 29, 2019. Id.

The Estate now brings this lawsuit alleging, against each Defendant, a single count of

wrongful death under Ohio law. 2 See id. at PageID 38–40. The Estate claims that all Defendants

owed Kenneth a duty to provide him safe care, as well as maintain the jail in a manner that would

prevent Kenneth’s death. Id. In response, Defendants allege that Ohio’s statutory immunity

scheme shields them from liability. See Doc. Nos. 25, 28.

II.

Federal Rule of Civil Procedure 12(c), like all other Federal Rules of Civil Procedure

“should be construed, administered, and employed by the court and the parties to secure the just,

speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

Motions for judgment on the pleadings under Rule 12(c) are analyzed under the same

standard as motions to dismiss under Rule 12(b)(6). See Roth v. Guzman, 650 F.3d 603, 605 (6th

Cir. 2011). “For purposes of a motion for judgment on the pleadings, all well-pleaded material

allegations of the pleadings of the opposing party must be taken as true, and the motion may be

granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase

Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (quotation omitted). However, the court

2 Sitting in diversity, federal courts apply “the choice of law rules and substantive law of the forum state.”

Smith v. Gen. Motors, LLC, 988 F.3d 873, 879 (6th Cir. 2021) (quoting CenTra, Inc. v. Estrin, 538 F.3d

402, 409 (6th Cir. 2008)). Diversity jurisdiction exists here because all Defendants are Ohio citizens, and

the Estate is considered a citizen of Illinois, as Kenneth was an Illinois citizen. See 28 U.S.C. § 1332(c)(2).

“need not accept as true legal conclusions or unwarranted factual inferences.” Id. at 582–83

(quotation omitted).

“[D]istrict courts ‘have a duty to address’ . . . immunity when ‘it is properly raised prior to

discovery.’” Myers v. City of Centerville, 41 F.4th 746, 758 (6th Cir. 2022) (quoting Summers v.

Leis, 368 F.3d 881, 886 (6th Cir. 2004)) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 527

(6th Cir. 2002)). “A district court [is] required to determine—prior to permitting . . . discovery—

whether [a] complaint” must be dismissed based on immunity. Skousen, 305 F.3d at 527. “[T]o

dismiss [a plaintiff’s] complaint at this stage, [the Court] must find that it is ‘devoid of [allegations]

tending to show that the [defendants] acted’ as [the plaintiff] alleges[,]” meaning in a manner that

abrogates their immunity. Novak v. City of Parma, 932 F.3d 421, 437 (6th Cir. 2019) (quoting

Irving v. Austin, 138 N.E.2d 931, 934 (Ohio 2000)) (citing Range v. Douglas, 763 F.3d 573, 586

(6th Cir. 2014)).

Nonetheless, courts should remain “reluctant to dismiss complaints based on affirmative

defenses at the pleading stage and before discovery is conducted.” Lockhart v. Holiday Inn Exp.

Southwind, 531 F. App’x 544, 547 (6th Cir. 2013) (quotations omitted); see Kaminski v. Coulter,

865 F.3d 339, 344 (6th Cir. 2017). “The fact-intensive nature of . . . immunity makes it often a

bad fit for Rule 12(b)(6).” Siefert v. Hamilton Cnty., 951 F.3d 753, 761 (6th Cir. 2020) (citing

Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2016)); see also Jacobs v. City of Chicago, 215 F.3d

758, 775 (7th Cir. 2000) (Easterbrook, J., concurring) (“Rule 12(b)(6) is a mismatch for immunity

and almost always a bad ground for dismissal”). That is why even though “immunity is a threshold

question to be resolved at the earliest possible point, that point is usually summary judgment and

not dismissal under Rule 12.” Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015) (cleaned

up); see also Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223,

235 (6th Cir. 2005) (Sutton, J., concurring).

III.

The Estate’s claim falls into two categories: (1) the claim as alleged against Clark County,

the Commissioners, and Sheriff Burchett, in her official capacity (collectively, “the entity

Defendants”); and (2) the claim as alleged against Deputy McDuffie and Nurse Ballard, both in

their individual capacities. As to the individuals, the Estate claims they acted recklessly. Doc.

No. 12 at PageID 39; Doc. No. 26 at PageID 102–06.

A. Statutory Immunity for Clark County, the Commissioners, and Sheriff

Burchett

In Ohio, “[t]he general rule is that political subdivisions are immune from tort liability.”

Anderson v. Westlake, 182 N.E.3d 1225, 1231 (Ohio Ct. App. 2021) (citing Shalkhauser v. Medina,

772 N.E.2d 129, 133 (Ohio Ct. App. 2002)). Determining the scope of liability requires a “three-

tiered analysis.” Id. (citing Cater v. Cleveland, 697 N.E.2d 610, 614–15 (Ohio 1998)). At the first

tier, “a political subdivision is not liable in damages in a civil action for injury, death, or loss to

person or property allegedly caused by 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 § 2744.02(A)(1). A “political subdivision” includes any “county,” id.

§ 2744.02(F), or “the elected holder of an office of a political subdivision who is sued in an official

capacity,” Lambert v. Clancy, 927 N.E.2d 585, 591 (Ohio 2010). “The . . . maintenance, and

operation of jails” is a “governmental function.” Ohio Rev. Code § 2744.01(C)(1)(h).

This general rule bends under the second tier, which lists five exceptions. See id.

§ 2744.02(B). They are: (1) liability for injury, death, or loss to person or property caused by the

negligent operation of a motor vehicle by an employee within the scope of their employment; (2)

negligent performance of a proprietary function; (3) negligent failure to keep roads or bridges in

repair or free of obstruction; (4) employee negligence on the grounds or in buildings used in

connection with that governmental activity and due to physical defects on or within those grounds

or buildings; or (5) instances where immunity has been otherwise abrogated by statute. Id.

§ 2744.02(B)(1)–(5). If one of these exceptions applies, then Ohio courts proceed to the third tier

to analyze possible defenses. See McConnell v. Dudley, 144 N.E.3d 369, 376 (Ohio 2019).

The claims against Clark County, the Commissioners, and Sheriff Burchett do not survive

scrutiny under the first two tiers. First, the Estate’s amended complaint alleges wrongful death,

falling within the scope of Ohio’s immunity regime. See Doc. No. 11 at PageID 38–40; Ohio Rev.

Code § 2744.02(A)(1). Second, all entity Defendants are “political subdivisions” because this

group includes the county and the officeholders, who are sued in their official capacities. See, e.g.,

Lambert, 927 N.E.2d at 591. Taking the allegations as true, the Estate’s amended complaint only

attacks the entity Defendants for how they operated the Clark County Jail—placing it squarely

within the first prong of immunity. See Ohio Rev. Code § 2744.01(C)(1)(h); Hiles v. Franklin

Cnty. Bd. of Comm’rs, No. 05AP-253, 2005 WL 3557454, at *9–10 (Ohio Ct. App. Dec. 30, 2005)

(dismissing estate’s tort claim against Franklin County for failing to prevent an inmate’s suicide,

despite his prior attempts to do so under their care). Likewise, providing medical care at the jail

falls under the statute’s ambit, as it, too, is a “governmental function.” See Lowe v. Cuyahoga

Cnty./Bd. of Cnty. Comm’rs, No. 1:08-CV-01339, 2013 WL 256352, at *3 (N.D. Ohio Jan. 23,

2013); cf. Hopper v. Montgomery Cnty. Sheriff, 310 F. Supp. 3d 911, 933 (S.D. Ohio 2017).

No exception applies. For instance, the Estate does not sue alleging negligent operation of

a motor vehicle, a road defect, or some injury caused by negligent management of government

property. See Ohio Rev. Code §§ 2744.02(B)(1), (3)–(4). Nor does it implicate Clark County’s

proprietary functions, since operating a jail is a “governmental function.” See Ohio Rev. Code

§§ 2744.01(C)(1)(h), (G)(2). The Estate’s amended complaint does not indicate an exception, as

it generally alleges that the entity Defendants were “willful, wanton, reckless, and/or negligent” in

their care for Kenneth in various ways. See Doc. No. 12 at PageID 38–39; see also Wilson v. Stark

Cnty. Dep’t of Hum. Servs., 639 N.E.2d 105, 107 (Ohio 1994) (“[E]xcept as specifically provided

in [Ohio Rev. Code §] 2744.02(B)(1), (3), (4) and (5), with respect to governmental functions,

political subdivisions retain their cloak of immunity from lawsuits stemming from employees’

negligent or reckless acts” (citing Garrett v. Sandusky, 624 N.E.2d 704 (Ohio 1994))); Fabrey v.

McDonald Vill. Police Dep’t, 639 N.E.2d 31, 35 (Ohio 1994). Since no exception applies, Clark

County, the Commissioners, and Sheriff Burchett—who is sued in her official capacity—are

immune.3 See Wilson, 639 N.E.2d at 107; Burgess v. Doe, 686 N.E.2d 1141, 1145 (Ohio Ct. App.

1996); see also, e.g., Hopper, 310 F. Supp. 3d at 933.

The Estate resists this conclusion by alleging that the entity Defendants are liable for the

reckless conduct of their employees and their failure to prevent overcrowding, which, in turn,

caused Kenneth’s death. Doc. No. 26 at PageID 105–09. This proves incorrect for two reasons.

First, there is no exception for a political subdivision’s immunity for its employees’ willfulness,

wantonness, or recklessness beyond those listed in the statute. Wilson, 639 N.E.2d at 107. Second,

the case the Estate cites—Morrison v. Warrensville Heights—does not stand for the proposition

cited for. No. 110234, 2022 WL 1421856, at *13–14 (Ohio Ct. App. May 5, 2022). Rather, the

3 The Estate does not specifically designate which capacity Sheriff Burchett is sued in. However, in its

response opposing Defendants’ motion, the Estate only argues that Sheriff Burchett is not entitled to

immunity as an entity, invoking the rules that govern immunity for suing Ohio governmental entities. See

Doc. No. 26 at PageID 106–09; Lambert, 927 N.E.2d at 591. This indicates that the Estate only views this

claim as one against Sheriff Burchett’s official capacity. Even if this were in dispute, the substance of the

complaint indicates that this is an official capacity claim because it only targets “policies and practices of

the [Clark County Jail] and not . . . actions taken by [Sheriff Burchett] personally.” Lambert, 927 N.E.2d

at 589–90 (finding that a claim was against the Clerk of Courts’s official capacity because there was no

indication that the plaintiff intended to target him individually). Thus, Sheriff Burchett is only sued in her

official capacity and is subject to dismissal for the reasons stated above.

court there only examined two issues: (1) whether the individual defendants were subject to the

recklessness exception for liability, Ohio Rev. Code § 2744.03(A)(6)(b); and (2) whether the

defendants were liable under the “emergency responder” exception to immunity, Ohio Rev. Code

§ 4765.49(B). See id. at *10–14. Neither issue is applicable to the entity Defendants, as they are

not individuals subject to the recklessness exception and they were operating a jail, not providing

emergency medical services within the meaning of Ohio law. See Wilson, 639 N.E.2d at 107; Ohio

Rev. Code § 4765.01(G) (defining “emergency medical service” to mean only services provided

by a limited category of “first responders”). As such, the Court declines to adopt the Estate’s novel

argument that the jail is responsible for overcrowding based on an alleged failure to meet its

standard of care, considering it is not liable for a death connected to the jail’s operation, absent an

exception. Ohio Rev. Code §§ 2744.01(C)(1)(h); 2744.02(A)(1).

Taking the allegations as correct leads to one conclusion: the Estate sues the entity

Defendants for their failure to prevent Kenneth’s death at the Clark County Jail due to how they

operated the jail. Because Ohio law precludes political subdivision liability in this instance, the

entity Defendants are entitled to immunity.

B. Statutory Immunity for Nurse Ballard and Deputy McDuffie

The three-tiered analysis is inapplicable when considering whether individual employees4

of political subdivisions are immune. See Anderson, 182 N.E.3d at 1232 (citing Rankin v.

Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 889 N.E. 2d 521, 526 (Ohio 2008)). Employees

are immune unless (1) their actions were manifestly outside the scope of their employment or

4 Under Ohio law, an “employee” of a political subdivision includes any “officer, agent, employee, or

servant, whether or not compensated or full-time or part-time, who is authorized to act and is acting within

the scope of the officer’s, agent’s, employee’s, or servant’s employment for a political subdivision.” Ohio

Rev. Code § 2744.01(B). It is undisputed that Nurse Ballard and Deputy McDuffie, as full-time employees

of the Clark County Jail who acted within that role, fall under this definition.

official responsibilities; (2) they acted with malicious purpose, in bad faith, or in a wanton or

reckless manner; or (3) civil liability is imposed by statute elsewhere. Ohio Rev. Code

§ 2744.03(A)(6).

“Under Ohio law, ‘[w]anton misconduct is the failure to exercise any care towards those

to whom a duty of care is owed in circumstances in which there is a great probability that harm

will result.” Wilson v. Gregory, 3 F.4th 844, 861 (6th Cir. 2021) (quoting Anderson v. City of

Massillon, 983 N.E.2d 266, 273 (Ohio 2012)). “Reckless conduct refers to an act done with

knowledge or reason to know of facts that would lead a reasonable person to believe that the

conduct creates an unnecessary risk of physical harm and that this risk is greater than that necessary

to make the conduct negligent.” Shalkhauser v. City of Medina, 772 N.E.2d 129, 136 (Ohio 2002)

(internal quotation marks omitted); see also Sabo v. City of Mentor, 657 F.3d 332, 337 (6th Cir.

2011). “Willful misconduct implies an intentional deviation from a clear duty or from a definite

rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or

purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting

injury.” Anderson, 983 N.E.2d at 273 (citations omitted). “Though wantonness requires

awareness of a given risk, recklessness does not.” Goodwin v. City of Painesville, 781 F.3d 314,

334 (6th Cir. 2015) (applying Ohio law). As applicable to all three exceptions, “[m]ere negligence

is insufficient to give rise to personal liability[.]’” Abdulsalaam v. Franklin Cnty. Bd. of Comm’rs,

637 F. Supp. 2d 561, 585 (S.D. Ohio 2009) (applying Ohio law) (quoting Fabrey, 639 N.E.2d at

35), aff’d, 399 F. App’x 62 (6th Cir. 2010). Questions about whether conduct was wanton,

reckless, or willful are almost always questions for a jury. See Hunter v. Columbus, 746 N.E.2d

246, 252 (Ohio Ct. App. 2000); see also Sabo, 657 F.3d at 337 (applying Ohio law).

The Estate’s amended complaint plausibly alleges that Nurse Ballard knew Kenneth was

in danger but ignored those danger signs and placed him back in the jail’s general population. See

Doc. No. 12 at PageID 36–38. Defendants’ arguments to the contrary overlook these specific

allegations. Nurse Ballard’s actions—by twice examining Kenneth, hearing his repeated reports

that he was not suffering from withdrawal but wrongly concluding that he was in withdrawal,

placing him back in the general population, and giving him alcohol withdrawal medicine—

overcome the “low bar” to plausibly allege recklessness. Myers, 41 F.4th at 766. Moreover, the

amended complaint articulates how Nurse Ballard had previously created procedures designed to

screen and distinguish prisoners suffering from legitimate medical emergencies from intoxicated

prisoners. Doc. No. 12 at PageID 37–38. As alleged, this have also alerted her that Kenneth

needed further treatment, so her decision to place him back into the general population instead

plausibly constituted recklessness. Id.; see also Stefan v. Olson, 497 F. App’x 568, 580–81 (6th

Cir. 2012) (affirming denial of statutory immunity under Ohio law to a jail nurse where her

observation of inmate’s medical symptoms should have made her aware that he needed to see a

doctor immediately and faced a substantial risk of harm without medical intervention).

Construing the allegations in the light most favorable to the Estate, it appears that Nurse

Ballard “made the logical connection” that Kenneth was at risk and ill, yet chose to forego medical

treatment. Stefan, 497 F. App’x at 578. At this early juncture, dismissal is inappropriate before

further development of the evidence through discovery, especially given the distinction between

negligence and recklessness often turns on facts. See, e.g., Sabo, 657 F.3d at 337; Elliott v.

Cuyahoga Cnty. Exec. & Council, No. 105773, 2018 WL 1448736, at *4–5 (Ohio Ct. App. Mar.

22, 2018) (trial court correctly denied judgment on the pleadings where it was pled that jail nurse

ignored plaintiff’s symptoms despite the obvious signs that he was in medical danger).

Upon reflection, the same is true of the allegations against Deputy McDuffie. Construing

the amended complaint in the Estate’s favor, the Estate plausibly alleges a similar sequence of

reckless, wanton, or willful misconduct: Deputy McDuffie interacted with Kenneth; observed

several warning signs; and yet choose to forego protocol (including taking Kenneth’s temperature)

during the initial screening. Doc. No. 12 at PageID 35, 39; see Elliott, 2018 WL 1448736, at *4–

5. These allegations—if true and construed in the Estate’s favor—raise a plausible inference of

recklessness especially when the “fact-intensive nature” of this issue makes it difficult to

conclusively resolve at the motion-to-dismiss stage. Siefert, 951 F.3d at 761 (citations omitted).

Thus, the Court DENIES the motion with respect to Ballard and McDuffie.5 The parties

may renew their arguments after discovery.

IV.

Based upon the foregoing, Defendants’ motion is GRANTED IN PART and DENIED IN

PART. The claims against Clark County, the Commissioners, and Sheriff Burchett are

DISMISSED WITHOUT PREJUDICE. This case, and discovery, shall proceed with respect to

Defendants Nurse Ballard, Deputy McDuffie, and Dr. Smith.

IT IS SO ORDERED.

Date: November 7, 2022 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge

5 In passing, Defendants mention that the claims against Nurse Ballard may be barred under Ohio Rev.

Code § 2305.113(A). Doc. No. 25 at PageID 84–85. It is unclear whether they abandoned this argument,

however, because it is never mentioned again in their motion or reply brief. “It is not sufficient to mention

a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” Hayward v.

Cleveland Clinic Found., 759 F.3d 601, 618 n.9 (6th Cir. 2014) (quoting McPherson v. Kelsey, 125 F.3d

989, 995–96 (6th Cir. 1997)). Accordingly, the Court does not address it at this time.