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
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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.
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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
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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
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