Opinion

Dehen v. Ohio State University

Court
District Court, S.D. Ohio
Filed
Apr 10, 2023
Cited by
0 cases
Authority
More cited than 28.4%

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Reese C. Dehen,

Case No. 2:23-cv-517

Plaintiff,

Vv. Judge Michael H. Watson

The Ohio State University, Magistrate Judge Jolson

Defendant.

OPINION AND ORDER

Reese Dehen (“Plaintiff’) sues The Ohio State University (“OSU”) under

various Ohio laws for events generally arising out of her non-receipt of a merit

scholarship to attend OSU as an undergraduate student-athlete. See generally,

Compl., ECF No. 1-1. This Opinion and Order addresses two pending motions:

(1) Plaintiffs motion to proceed in forma pauperis; and (2) Plaintiff's motion for

recusal.

I. In Forma Pauperis

Plaintiff moves for leave to proceed in forma pauperis. ECF No. 1.

Magistrate Judge Jolson issued a Report and Recommendation (“R&R”) on

February 14, 2023, recommending that Plaintiffs motion be denied. ECF No. 3.

The R&R notified Plaintiff of her right to object to the recommendations contained

therein, and that a failure to timely object would amount to a waiver of the right to

de novo review by the Court as well as a right to appeal the Court’s adoption of

the R&R. /d. at 3.

The deadline for filing such objections has passed, and no objections were

filed. Moreover, Plaintiff paid the filing fee on March 13, 2023. Accordingly,

Plaintiff's motion for leave to proceed in forma pauperis, ECF No. 1, is DENIED

AS MOOT.

ll. Recusal

Plaintiff also moves for the Undersigned to recuse himself from Plaintiff's

case due to his affiliations with OSU. ECF No. 6. Ina prior case involving OSU

as a defendant, the plaintiffs moved for the Undersigned’s recusal for three

reasons: (1) the Undersigned teaches a trial practice class at the Ohio State

University Moritz College of Law (“Moritz”); (2) the Undersigned’s wife owns a

store (the “Store”) which has a licensing agreement with OSU; and (3) the

Undersigned participates in the annual Buckeye Cruise for Cancer, which

benefits the Ohio State University Comprehensive Cancer Center (the “Cancer

Center’). See Garrett v. Ohio State Univ., 60 F.4th 359, 368-70 (6th Cir. 2023).

In Garrett, the Undersigned denied the plaintiffs’ recusal motions, and the Sixth

Circuit affirmed the decision. /d. at 372. However, the Sixth Circuit advised that

the Undersigned should have disclosed the store’s licensing agreement at the

outset of litigation. /d. at 371. Accordingly, in this case, the Undersigned

disclosed all of the above connections to Plaintiff. ECF No. 4. In response to

this disclosure, Plaintiff moved for the Undersigned’s recusal. ECF No. 6.

Plaintiff further moved for an extension of time to file her recusal motion. ECF

No. 5. Because Plaintiffs recusal motion was timely filed, the motion for an

Case No. 2:23-cv-517 Page 2 of 7

extension of time, ECF No. 5, is DENIED AS MOOT. Plaintiff's motion for

recusal, ECF No. 6, is likewise DENIED.

First, Plaintiff argues that the Undersigned should recuse because the

Undersigned did not make clear in his disclosure whether his teaching position at

Moritz is paid or unpaid; whether undergraduate students may take classes at

Moritz; or whether the Undersigned ever discusses scholarships with students.

Mot. 3, ECF No. 6. Further, Plaintiff argues that, should she seek class

certification in this case, it is possible some of the Undersigned’s students at

Moritz could be included in that class. /d. at 5.

Second, Plaintiff argues that the Undersigned should recuse because the

officials at OSU possibly discussed the merit-scholarship at the center of this

controversy with faculty members at OSU, including the Undersigned. /d. at 6.

Plaintiff also seems to suggest that the Undersigned may have some inside

knowledge as to the recruitment and scholarship evaluation processes at OSU.

Id. at 8. Furthermore, she argues that she is already the “underdog’ in this case

because she is an out-of-state student at OSU, OSU is a well-renowned state

instrumentality, and the Undersigned’s connection to OSU, at the very least,

leads to the appearance that the scales are further stacked against her in this

case. /d. at 5-6.

Third, Plaintiff argues that the Undersigned should recuse because the

Undersigned’s wife’s store, due to having a licensing agreement with OSU, must

engage in a regular renewal process or negotiations with OSU. Mot. 4, ECF No.

Case No. 2:23-cv-517 Page 3 of 7

6. Further, Plaintiff argues she does not know the extent of the store’s

relationship to OSU’s fundraising, boosterism, or athletic programs, and each

program is at-issue in this case because each of those programs indirectly

affects scholarship decisions. /d.

Finally, Plaintiff argues that she may need to call members of OSU’s Board

of Trustees or OSU’s President as witnesses in this case. /d. 4-5, 8. She

believes that the Undersigned commented during a status conference in Garrett

that OSU’s President was “a man of his word,” and she is worried that the

Undersigned has already made a credibility determination as to potential

witnesses. /d.

A judge’s recusal is governed by 28 U.S.C. § 455 and the Code of Conduct

for United States Judges (“the Code”). 28 U.S.C. § 455(a) requires a judge to

recuse “in any proceeding in which his impartiality might reasonably be

questioned.” Garrett v. Ohio State Univ., 60 F.4th 359, 368 (6th Cir. 2023).

28 U.S.C. § 455(b)(4) and the Code mandate a judge’s recusal any time

knows that he .. . or his spouse . . . has a financial interest in the subject

matter in controversy or in a party to the proceeding, or any other interest that

could be substantially affected by an outcome of the proceeding.” See also

Canon 3(C)(1)(c).

“Recusal is not mandatory in other situations involving spousal business

relationships that are less direct or consequential.” Guide to Judiciary Policy,

Vol. 2, Ch. 2, Advisory Opinion No. 107. Rather, judges in those situations will

Case No. 2:23-cv-517 Page 4 of 7

consider “a number of facts and circumstances that must be evaluated on a

case-by-case basis to determine, in accordance with Canon 3(C)(1), whether ‘the

judge’s impartiality might reasonably be questioned.” /d. This is because,

wholly apart from instances in which recusal is mandatory due to financial

instance, a judge should recuse from “any proceeding in which his impartiality

might reasonably be questioned.” 28 U.S.C. § 455(a); Canon 3(C)(1).

That standard “is not based on the subjective view of a party, and rather

imposes an objective standard: a judge must disqualify himself where a

reasonable person with knowledge of all the facts would conclude that the

judge’s impartiality might reasonably be questioned.” Burley v. Gagacki, 834

F.3d 606, 615—16 (6th Cir. 2016) (internal quotation marks and citations omitted).

The moving party bears the burden of justifying disqualification. Consol. Rail

Corp. v. Yashinsky, 170 F.3d 591, 597 (6th Cir. 1999). Furthermore, “[s]ection

455 does not require the judge to accept as true the allegations made by the

party seeking recusal.” Garrett, 60 F.4th at 368 (internal quotation marks and

citation omitted).

After consideration, the Undersigned concludes that none of Plaintiff's

arguments are grounds for recusal. In essence, Plaintiff simply attempts to re-

litigate grounds for recusal already decided and affirmed on appeal in Garrett by

raising additional speculations about what the Undersigned may think or may

know. Plaintiff attempts to distinguish Garrett by arguing that (1) there is a

chance, in this case, that the Undersigned has knowledge regarding

Case No. 2:23-cv-517 Page 5 of 7

scholarships, fundraising, and boosting; (2) there is a chance, in this case, that

some of the Undersigned’s current or former students could be potential class

members; and (3) there is a chance that the Undersigned has already made a

credibility determination regarding a potential witness, namely OSU's President;

and (4) her recusal motion was brought earlier than the motion in Garrett. Mot.

8-9, ECF No. 6.

Plaintiff's first three attempts to distinguish Garrett fail because they rely

purely on speculation about what may happen in this case or what the

Undersigned may know or think. As the Sixth Circuit as stated on multiple

occasions, “disqualification is not required on the basis of such remote,

contingent, indirect, or speculative [arguments].” Scott v. Metro. Health Grp., 234

F. App’x 341, 357 (6th Cir. 2007); see also Garrett, 60 F.4th at 369. Moreover, at

no point did the Undersigned ever comment that OSU’s President was a “man of

his word.” See Tr. 4:20—21, ECF No. 52, Case No. 2:18-cv-692. Indeed, the

Undersigned referenced only the then-chairman of OSU’s Board of Trustees,

Mike Gasser. /d. Mr. Gasser no longer serves on OSU’s Board of Trustees in

any capacity.

In any event, the Undersigned states for Plaintiffs comfort that he does not

have any knowledge regarding any OSU scholarships, does not discuss

scholarships with students, and does not have any knowledge relative to the

facts surrounding Plaintiffs particular scholarship application process.

Additionally, Plaintiff's concerns regarding any potential relationship between the

Case No. 2:23-cv-517 Page 6 of 7

Store and OSU's scholarship funds is patently meritless, as is her concern that

the Court has made a credibility determination concerning a potential witness in

her case.

Further, the timing of the motion does not change the analysis. All of

Plaintiff's arguments for recusal are meritless whether they are asserted now or

asserted well into litigation. Regardless of timing, the Undersigned has a “duty to

sit where disqualification is not required.” United States v. Angelus, 258 F. App’x

840, 842 (6th Cir. 2007) (internal quotation marks and citations omitted).

The Undersigned’s impartiality cannot reasonably be questioned, and the

Undersigned will adhere to his duty to sit where his disqualification is not

required. Accordingly, Plaintiffs motion for recusal is DENIED.

To summarize: Plaintiffs motion for leave to proceed in forma pauperis,

ECF No. 1, is DENIED AS MOOT. The R&R, ECF No. 3, is terminated as moot.

Plaintiff's motion for an extension of time, ECF No. 5, is DENIED AS MOOT.

Plaintiff's motion for recusal, ECF No. 6, is DENIED. The Clerk shall terminate

each of these motions.

IT IS SO ORDERED. : ! | Iiton~

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

Case No. 2:23-cv-517 Page 7 of 7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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