Lyons v. Tecumseh Local School District

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

EDWARD LYONS, :

:

Plaintiff, : Case No. 3:23-cv-74

:

v. : Judge Thomas M. Rose

:

TECUMSEH LOCAL SCHOOL : Magistrate Judge Peter B. Silvain, Jr.

DISTRICT, et al. :

:

Defendants, :

______________________________________________________________________________

ENTRY AND ORDER GRANTING DEFENDANTS’

MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. NO. 12)

______________________________________________________________________________

Presently before the Court is Defendants’ Motion for Judgment on the Pleadings (the

“Motion”). (Doc. No. 12.) Plaintiff Edward Lyons (“Lyons”) filed his Complaint against

Defendants Tecumseh Local School District (the “District”) and the District’s Superintendent

Paula Crew (“Crew”) (collectively “Defendants”) alleging two causes of action. (Doc. No. 1.)

Subsequently, Lyons filed an Amended Complaint (the “Amended Complaint”), only changing

the language contained in three paragraphs of his original Complaint. (Doc. No. 9.) Lyons alleges

First Amendment retaliation in violation of 42 U.S.C. § 1983 and a state law claim for violation

of the Ohio Constitution. (Id. at PageID 63.) Defendants contend that they are entitled to judgment

as matter of law on both counts. (Doc. No. 12.) In his response to Defendants’ Motion (the

“Response”) (Doc. No. 13), Lyons concedes to the dismissal of his state law claim. (Doc. No. 13

at PageID 100.) However, Lyons argues that he has sufficiently pled his First Amendment

retaliation claim to survive Defendants’ Motion. (Doc. No. 13) For the reasons discussed below,

the Court GRANTS the Motion.

I. BACKGROUND

Since 1995, Lyons has been employed by the District as a seventh-grade social studies

teacher at Tecumseh Middle School in New Carlisle, Ohio (“TMS”)). (Doc. No. 9 at PageID 54.)

Lyons alleges that, with the exception of the discipline at issue in this action, he has never received

any written discipline throughout his tenure with TMS. (Id. at PageID 55.)

For some time leading up to the calendar year 2020, Lyons began perceiving of issues with

the District’s handling of student misconduct. (Id.) Lyons was allegedly “troubled by the instances

of students acting out towards teachers and administrators without consequence.” (Id.) Sharing

his frustration, leadership in the local teachers’ union asked Lyons to speak on the issue of student

misconduct at the District’s board meeting on February 25, 2020 (the “Board Meeting”). (Id.) At

this meeting, several teachers complained to the board and Crew of the District’s failure to address

student misconduct. (Id.) Lyons was the last to speak and he allegedly only provided brief remarks

cosigning the statements made by his colleagues. (Id.) Following the Board Meeting, Lyons

continued on teaching seventh-grade social studies at TMS. (Id.) Lyons taught through the

remainder of the 2019-2020 school year and for the entirety of the 2020-2021 school year without

incident. (Id.)

Lyons alleges that at the beginning of the 2021-2022 school year, he and his cohorts were

warned of rising seventh-graders who developed reputations for bad behavior in the previous

grade. (Id.) One such child was in Lyons’ class. (Id. at PageID 56.) On November 5, 2021, the

student attempted to leave Lyons’ class to use the restroom without first asking permission. (Id.)

Lyons scolded the student and instructed him to ask for permission to use the restroom properly.

(Id.) When the child disobeyed, Lyons blocked the classroom door and gripped the door handle.

(Id.) An altercation ensued where the child allegedly pushed Lyons and Lyons physically

restrained the child. (Id.) At least one other TMS staff member attempted to help resolve the

incident, but Lyons refused their assistance. (Doc. No. 9-1 at PageID 67.) The altercation only

ended when “the student relented and finally asked for permission to use the restroom.” (Doc. No.

9 at PageID 56.)

Unbeknownst to Lyons, another student in his class made a video recording of the

described incident. (Id. at PageID 57.) That video allegedly circulated among the student body

and eventually made its way to TMS administration as well as Crew. (Id.) Additionally, the local

sheriff’s office was called to TMS on November 5, 2021, following the altercation, though Lyons

and the student were cleared of any criminal charges.1 (Id. at PageID 60.) Nevertheless, Lyons

was placed on administrative leave pending the District’s investigation of the incident. (Doc. No.

9 at PageID 57.)

On November 12, 2021, the District, through Crew, provided Lyons with a Notice of

Disciplinary Charges and Pre-Disciplinary Hearing (the “Charges”) and placed a copy in his

personnel file. (Doc. No. 9-1.) Lyons alleges that the Charges mischaracterized the subject event

by stating that Lyons “placed his arm around the student’s neck” and that Lyons’ purported reason

for initiating and continuing the altercation was the child’s failure to say “please” when asking

permission to go to the restroom. (Doc. No. 9 at PageID 57-58; Doc. No. 9-1 at PageID 65.)

Following the pre-disciplinary hearing, the District, again through Crew, served Lyons with a

Notice of Suspension (the “Notice”), placing Lyons on a five-day unpaid suspension. (Doc. No.

9 at PageID 59; Doc. No. 9-2.) Lyons similarly alleges that the Notice mischaracterized the

November 5 incident, though the Notice notably did not state that Lyons “placed his arm around

1 WHIO Staff, Tecumseh middle school teacher on leave after ‘extended physical altercation’ in classroom, WHIOTv7

(Nov. 17, 2021, 10:37 AM), https://www.whio.com/news/local/tecumseh-middle-school-teacher-leave-amid-

investigation/KRJZP4JIT5A3VCTBXYZQLFBGU4/.

the student’s neck.” (Doc. No. 9 at PageID 59; Doc. No. 9-2 at PageID 67.)

Through his local teachers’ union, Lyons responded to his suspension by submitting a

formal grievance to the District. (Doc. No. 9 at PageID 59.) Lyons’ grievance then proceeded to

arbitration. (Id.) After hearing all the evidence, the arbitrator ultimately found that the District

only had just cause to discipline Lyons with a three-day paid suspension. (Doc. No. 9 at PageID

59.)

Lyons believed that Defendants’ disciplinary actions against him for the November 5,

2021, incident were taken in retaliation for his remarks at the February 2020 Board Meeting. (Id.

at PageID 62.) On March 13, 2023, Lyons filed the instant Complaint. (Doc. No. 1.) He later

filed the Amended Complaint likewise alleging two counts: (1) retaliation for the exercise of free

speech protected by the First and Fourteenth Amendment of the U.S. Constitution in violation of

42 U.S.C. § 1983, and (2) retaliation in violation of the Ohio Constitution. (Doc. No. 9 at PageID

62-63.) On July 31, 2023, Defendants filed the present Motion. (Doc. No. 12.) On August 21,

2023, Lyons filed his Response (Doc. No. 13) and on September 5, 2023, Defendants filed their

Reply (Doc. No. 14). Thus, the Motion is fully briefed and ripe for review and decision.

II. STANDARD OF REVIEW

Motions for judgment on the pleadings pursuant to Fed. R. Civ. P 12(c) are reviewed under

the same standard as motions to dismiss for failure to state a claim per Rule 12(b)(6). See Warrior

Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010). When

considering a motion for judgment on the pleadings, “[a]ll 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 as a matter of law.” Hindel v. Husted,

875 F.3d 344, 346 (6th Cir. 2017) (internal quotation marks omitted). However, the court “need

not accept as true legal conclusions or unwarranted factual inferences.” JPMorgan Chase Bank,

N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007).

“To survive a Rule 12(c) motion, a complaint must contain direct or inferential allegations

respecting all the material elements under some viable legal theory.” Hindel, 875 F.3d at 346-347

(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (“[A] complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face. 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”) (internal quotation marks

omitted). “[T]he plaintiff must provide the grounds for its entitlement to relief, and that ‘requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.’”

Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)) (internal citation omitted). “A plaintiff falls short if [the plaintiff] pleads facts

‘merely consistent with a defendant’s liability’ or if the alleged facts do not ‘permit the court to

infer more than the mere possibility of misconduct.’” Id. (quoting Iqbal, 556 U.S. at 678-679);

see also Twombly, 550 U.S. at 557 (a complaint will not withstand a motion to dismiss if it offers

only “naked assertion[s]” without “further factual enhancement”).

In reviewing motions for judgment on the pleadings, courts primarily consider the

pleadings, which consist of the complaint, the answer, and any written instruments attached as

exhibits. See Fed. R. Civ. P. 12(c); Fed. R. Civ. P. 7(a) (defining “pleadings” to include both the

complaint and the answer); Fed. R. Civ P. 10(c) (stating that “[a] copy of a written instrument that

is an exhibit to a pleading is part of the pleading for all purposes.”). Though the allegations

contained in the complaint form a court’s primary focus, courts may also account for “matters of

public record, orders, [and] items appearing in the record of the case.” Barany-Snyder v. Weiner,

539 F.3d 327, 332 (6th Cir. 2008). Additionally, courts may consider exhibits attached to a motion

for judgment on the pleadings “so long as they are referred to in the Complaint and are central to

the claims contained therein.” Brent v. Wayne Cty. Dept. of Human Servs., 901 F.3d 656, 695 (6th

Cir. 2018).

III. ANALYSIS

A. Preliminary Matters

As an initial matter, the Court addresses two issues. First, Lyons has consented to the

dismissal of his state law claim for violation of the Ohio Constitution. (Doc. No. 13 at PageID

100.) As such, the Court dismisses Count Two of the Amended Complaint.

Second, the Court acknowledges Defendants’ various separate arguments for judgment on

the pleadings in this matter. Specifically, Defendants argue that: (1) Lyons has failed to

successfully plead a First Amendment retaliation claim; (2) Defendants have a legitimate business

justification for taking adverse employment action against Lyons; (3) Crew is entitled to qualified

immunity; (4) Lyons has failed to allege a custom or policy underlying the alleged retaliation; and

(5) Lyons has no viable claim for punitive damages against Defendants. (Doc. No. 12 at PageID

86, 91, 94, 95, 96, 98.) The Court finds that the current Motion may be decided on whether Lyons

has sufficiently pleaded his First Amendment retaliation claim alone. Therefore, the Court focuses

its analysis on the adequacy Lyons’ First Amendment retaliation claim.

B. Lyons’ First Amendment Retaliation Claim

“To prevail on a civil rights claim pursuant to 42 U.S.C. § 1983,” plaintiffs “must

demonstrate” that a person acting under color of state law deprived them of a right protected by

the U.S. Constitution. Holsapple v. Cunningham, 817 F. App’x. 95, 101 (6th Cir. 2020) (quoting

Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006)); 42 U.S.C. § 1983. Broadly speaking, courts

have long recognized that retaliation for the exercise of one’s First Amendment rights may amount

to the deprivation of a constitutionally protected right. See e.g., Mt. Healthy City Sch. Dist. Bd. Of

Educ. V. Doyle, 429 U.S. 274, 97 S. Ct. 568 (1977). To succeed on such a First Amendment

retaliation claim under 42 U.S.C. § 1983, a plaintiff must make the following prima facie showing:

(1) he engaged in constitutionally protected speech or 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

elements one and two—that is, the adverse action was motivated at least in part by

his protected conduct.

Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 399 (6th Cir. 2010) (quoting Scarbrough v.

Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006)).

The Parties here do not dispute that Defendants acted under color of state law. However,

Defendants submit Lyons has failed to establish that Defendants deprived him of a constitutionally

protected right. (Doc. No 12 at PageID 86-94.) Specifically, Defendants argue that Lyons has

failed to adequately plead the first and third prongs of the required prima facie case for First

Amendment retaliation.2 (Id. at PageID 86-94.) Conversely, Lyons generally posits that his

allegations sufficiently establish his prima facie case to survive Defendants’ Motion on both fronts.

The Court accordingly considers whether Lyons has sufficiently pled (i) that his speech at the

Board Meeting constituted protected speech, and (ii) a causal connection between his comments

at the Board Meeting and the discipline for his involvement in the November 5 incident.

i. Protected Speech

Regarding Lyons’ prima facie case for First Amendment retaliation, the Court must first

determine whether Lyons’ alleged speech was constitutionally protected. Defendants contend that

Lyons spoke at the Board Meeting as the District’s employee rather than as a citizen. (Doc. No.

2 In a footnote, Defendants also contend that Lyons never suffered an adverse employment action. (Doc. No. 12 at

PageID 86.) Without more, the Court makes no finding respecting this argument and disregards the argument for

purposes of this Motion.

12 at PageID 86-91.) They submit that this precludes Lyons’ speech from constitutional protection

as a matter of law. (Id. at PageID 90.) On the other hand, Lyons argues he has properly pled that

he spoke at the Board Meeting as a private citizen. (Id. at PageID 103.) In particular, Lyons argues

that he spoke at the Board meeting pursuant to his union activities and such speech cannot be made

pursuant to his official duties. (Id. at PageID 103-104.)

It has been generally accepted that government employees must come to terms with certain

restrictions on their speech. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951 (2006)

(“When a citizen enters government service, the citizen by necessity must accept certain

limitations on his or her freedom”). Nonetheless, citizens entering into public service “do not

forfeit all their First Amendment rights” as a function of their employment. Handy-Clay v. City

of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (citing Garcetti, 547 U.S. at 417; Connick

v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684 (1983)). A government employee’s speech may be

constitutionally protected if made on a matter of public concern as a private citizen. Evans-

Marshall v Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 337-338 (6th Cir.

2010) (“Evans-Marshall II”) (internal citations omitted). When these requirements are satisfied,

a government employee’s speech will be protected if the employee’s First Amendment interests

are not outweighed by the state’s interest in promoting governmental efficiency. Id. (quoting

Pickering v. Bd. of Educ., 391 U.S. 563, 568. 88 S. Ct. 1731 (1968)).

To determine whether a government employee has spoken as a private citizen, courts

consider the “content and context” of the employee’s speech. Handy-Clay, 695 F.3d at 540 (citing

Fox v. Traverse City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 348 (6th Cir. 2010)). Speech

made pursuant to a public employee’s official duties “owes its existence” to the government

employer. Garcetti, 547 U.S. at 421-22. Naturally, employee speech that “is itself ordinarily

within the scope of an employee’s duties” is made pursuant to the employee’s official duties and

cannot be considered private speech. Boulton v. Swanson, 795 526, 533-34 (6th Cir. 2015)

(internal citations and quotation marks omitted). Under such circumstances, the government is the

speaker rather than the individual. Evans Marshall II, 624 F.3d at 338 (citing Garcetti, 547 U.S.

at 421). However, speech merely concerning a government employee’s duties or otherwise

relating to “the public employment itself” may constitute private speech. Boulton, 795 F.3d at

534. In other words, public employee speech will not be hamstrung simply because those

employees have knowledge of governmental workings. Lane v. Franks, 573 U.S. 228, 236, 134

S. Ct. 2369 (2014) (“There is considerable value . . . in encouraging, rather than inhibiting, speech

by public employees . . . government employees are often in the best position to know what ails

the agencies for which they work”) (internal citations and quotation marks omitted).

In the instant case, Lyons’ has adequately pleaded his comments at the Board Meeting to

presume them constitutionally protected for purposes of this Motion. Defendants suggest that

Lyons’ speech cannot be private speech because he and his colleagues attended the Board Meeting

to complain about how unchecked student misconduct affected their ability to perform their

employment responsibilities of teaching. (Doc. No. 12 at PageID 90.) Yet, student behavior at

school is a matter of public concern regardless of whether it relates to teachers’ employment

responsibilities. To be sure, “[t]he essence of a teacher’s role is to prepare students for their place

in society as responsible citizens,” and regulating their students’ behavior would seem essential to

this goal. Evans Marshall II, 624 F.3d at 339 (quoting Hardy v. Jefferson Cmty. Coll., 260 F.3d

671, 679 (6th Cir. 2001)) (internal quotation marks omitted).

Moreover, Lyons alleges that he spoke at the Board Meeting on behalf of the local teachers’

union. (Doc. No. 9 at PageID 55.) For all intents and purposes, Lyons spoke at the Board meeting

in keeping with his union activities. Indeed, “[i]t is axiomatic that an employee’s job

responsibilities do not include acting in the capacity of a union member, leader, or official.”

Boulton, 795 F.3d at 534. Accordingly, the Court finds that Lyons’ speech at the Board Meeting

was constitutionally protected at this point in the proceedings.

ii. Causal Connection

The Court now turns to whether there is any discernable causal link between Lyons’ speech

and the disciplinary actions taken against Lyons for his involvement in the November 5 incident.

Defendants posit that Lyons has failed to plead any viable causal connection between his speech

and adverse employment action. (Doc. No 12 at PageID 92.) In this vein, Defendants argue that

the disciplinary action taken against Lyons for the November 5 altercation lacks temporal

proximity to his speech at the Board Meeting. (Id. at PageID 93.) Lyons responds by arguing that

the Court should infer a causal link here from Crew’s alleged mischaracterizations of the

November 5 incident. (Doc. No. 13 at PageID 104.) Lyons further contends that the lack of

temporal proximity in this case is immaterial because Defendants had no opportunity to retaliate

against Lyons for his remarks at the Board Meeting prior to November 5, 2021. (Id. at PageID

106.)

As stated above, to plead a causal connection in First Amendment retaliation cases,

plaintiffs must establish that the adverse action at issue was motivated at least in part by protected

conduct. Vereecke, 609 F.3d at 399 (internal citations and quotation marks omitted). To this end,

plaintiffs must show that their protected activities were “essentially a but-for cause – without

which the action being challenged simply would not have been taken.” Holsapple, 817 F. App’x.

at 101 (quoting Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (internal citations

omitted)) (internal quotation marks omitted). “Bare allegations” of causation will not suffice to

establish a First Amendment retaliation claim. Id. (citing Crawford-El. v. Britton, 523 U.S. 574,

588, 118 S. Ct. 1584 (1998)). Instead, Plaintiffs must “point to specific, nonconclusory allegations

reasonably linking” their protected speech to adverse employment action. Id. (quoting Rodgers v.

Banks, 344 F.3d 587, 602 (6th Cir. 2003)) (internal quotation marks omitted).

Temporal proximity between a plaintiff’s protected speech and the alleged retaliatory

action may allow for the inference of a causal connection. Eckerman v. Tenn. Dep’t. of Safety,

636 F.3d 202, 209 (6th Cir. 2010) (“A causal link can be shown through direct or circumstantial

evidence, including showing temporal proximity between engaging in protected activity and

suffering an adverse employment action that may create an inference of causation”) (internal

citations omitted). Yet, temporal proximity alone will not suffice to establish causation for a First

Amendment claim. Vereecke, 609 F.3d at 400 (quoting Tuttle v. Metro. Gov’t. of Nashville, 474

F.3d 307, 321 (6th Cir. 2007). Allegations of temporal proximity should be accompanied, when

possible, by other indicia of retaliatory conduct to support a causal inference. Id. (quoting

Randolph v. Ohio Dep’t. of Youth Servs., 453 F.3d 724, 737 (6th Cir. 2006)).

Similarly, plaintiffs must substantiate the causal connection between their protected speech

and adverse employment action with more evidence – or in this case, allegations – as more time

passes. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524-25 (6th Cir. 2008) (“[T]he more time

that elapses between the protected activity and the adverse employment action, the more the

plaintiff must supplement his claim . . .”). A temporal gap between a plaintiff’s protected activity

and retaliatory action can be justified if the plaintiff alleges that his employer had no prior

opportunity to retaliate. George v. Youngstown State Univ., 966 F.3d 446, 468 (6th Cir. 2020)

(internal citations omitted). However, even then, the plaintiff must still point to some supplemental

allegations supporting causation. Id. (“[S]ome of the irregularities mentioned . . . also support a

prima facie showing of causation, at least when combined with the timing of this decision”). A

defendant’s “knowledge and disapproval” of a plaintiff’s public criticisms is not an adequate

causal link to supplement a temporal gap. Cooperrider v. Beshear, No. 3:22-cv-16, 2023 U.S.

Dist. LEXIS 49386, at *25, 2023 WL 2612603 (E.D. Ky. Mar. 23, 2023).

Here, Lyons’ allegations of a causal link simply strain credulity. Lyons provided

admittedly brief remarks at the Board Meeting on February 25, 2020. (Doc. No. 9 at PageID 55.)

Defendants did not subject Lyons to discipline until nearly two years later. (Doc. No. 9 at PageID

57-60; Doc. No. 13 at PageID 104.) This wide temporal gap suggests no causal link between the

two events. Moreover, Lyons does not allege supplemental facts to otherwise provide the

inference of retaliation in response to Lyons’ protected speech. Rather, Lyons asks the Court to

infer retaliation from Crew’s knowledge of his protected speech at the Board Meeting. (Doc. No.

9 at PageID 55.)

The Court accepts that Defendants had no realistic opportunity to retaliate against Lyons

for his speech until nearly two years after the fact. (Doc. No. 13 at PageID 106.) Though, there

are no allegations that, when combined with this fact, provide a sufficient inference of causality.

For instance, Lyons relies heavily on the allegations that Crew mischaracterized the November 5

incident. (See e.g., Doc No. 9 at PageID 57.) When coupled with the timing of Defendants’

disciplinary action, the Court is left with no more than the mere possibility of misconduct.

Further, even drawing all inferences in the light most favorable to Lyons, Crew’s potential

misconduct does not suggest retaliation for Lyons’ speech. The fact remains that on November 5,

2021, Lyons had a physical confrontation with a seventh-grade student. (Doc. No. 9 at PageID

56.) Lyons does not deny that he physically restrained the child, only that he placed his arm around

the child’s neck. (Id. at PageID 57-58.) Lyons does not dispute that such restraint deprived the

student of basic needs (i.e., using the restroom), in violation of school board policy. (Doc. No. 9-

1 at PageID 66). Importantly, this incident was video recorded, the video was circulated, and local

news media reported on the event. (Doc. No. 9 at PageID 57, 60.) Defendants could not reasonably

be expected to turn a blind eye to a physical altercation between a seventh-grade student and an

adult teacher and also protect TMS’s interests. Given the fact that Lyons did engage in publicized

misconduct that day, the Court cannot reasonably suggest the subsequent disciplinary action taken

against Lyons was retaliatory.

In sum, there are simply no reasonable inferences to be drawn in favor of a causal

connection in this case. Evans-Marshall v Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428

F.3d 223, 228 (6th Cir. 2005) (“Evans-Marshall I”) (quoting Hishon v. King & Spalding, 467 U.S.

60, 73, 104 S. Ct. 2229 (1984)). Hence, Lyons has failed to sufficiently plead causation with

respect to his First Amendment retaliation claim.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS Defendants’ Motion for Judgment on

the Pleadings (Doc. No. 12), DISMISSES the Amended Complaint (Doc. No. 9), and instructs the

Clerk of Court to TERMINATE this case on the Court’s docket.

DONE and ORDERED in Dayton, Ohio, this Tuesday, October 3, 2023.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE