The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAVID LINK .
Plaintiff,
Vv. .
BOARD OF EDUCATION OF
KETTERING CITY SCHOOLS, | Case No. 3:22-CV-295-WHR-CHG
TOBY HENDERSON, MARTIN
MARK, JIM AMBROSE, JUDGE WALTER H. RICE
JENNIFER KANE, LORI PARKS,
KEN MILLER, TYLER
ALEXANDER, LIZ JENSEN, JEFF
RENSHAW, and ZACH PICKENS
Defendants.
DECISION AND ENTRY SUSTAINING DEFENDANTS’ MOTION TO
DISMISS, DOC. #12, AND SUSTAINING DEFENDANTS’ MOTION
TO DISMISS SECOND AMENDED COMPLAINT, DOC. #19;
PLAINTIFF GRANTED 7 DAYS TO REFILE FINAL AMENDED
COMPLAINT; DEFENDANTS GRANTED 14 DAYS TO FILE A
RESPONSE
The Court's previous order, Doc. #10, dismissed all of Plaintiff David Link’s'
(“Link”) claims against the Board of Education of Kettering City Schools (“the
Board”) and the individually named board members and district employees
' The original Complaint, Doc. #1, identifies Plaintiff David Link with the honorific “Mx.” and
includes numerous exhibits where Plaintiff is referenced using pronouns such as “they/their/them.”
Additional filings indicate that the Plaintiff refers to himself as “Noki Link” and using the pronouns
she/they. See, e.g., Doc. ##11 & 14. For the sake of clarity and consistency with the previous
order, Doc. #10, the Court will continue to refer to Plaintiff as “he/his/him.”
(collectively “Defendants”) on September 28, 2023. The order also provided Link a
twenty-one (21) day period during which he could file an amended complaint
clarifying his claims of violations of his First Amendment rights.” Link
subsequently filed an Amended Complaint, Doc. #11, on October 18, 2023. In
response, on October 31, 2023, the Board filed a Motion to Dismiss Plaintiff's
Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6). Doc. #12. Link filed a
Response to the motion on November 27, 2023, Doc. #14, which also sought
leave to file supplemental information to the Amended Complaint. Defendants filed
a Reply on December 4, 2023. Doc. #15. Link then filed a request seeking leave of
Court to file a Second Amended Complaint, Doc. #16, on December 27, 2023, and
then repeated the same filing again on December 29, 2023, Doc. #17, with minor
revisions. Compare Doc. #16 at PagelD #164 with Doc. #17 at PagelD #171. Link
then filed another document self-titled “Second Amended Complaint,” on January
16, 2024, Doc. #18. Subsequently, the Board filed a Motion to Dismiss the
Second Amended Complaint, Doc. #19, on January 30, 2024. Link filed a
Response on February 9, 2024, Doc. #20, and the Board replied on February 16,
2024. Doc. #21.
The motions are ripe for review.
2 This Court's jurisdiction is based on federal questions “arising under” the Constitution or laws of
the United States. 28 U.S.C. §§ 1331.
I. Procedural History
On October 18, 2023, Link filed a short, two-page Amended Complaint.
Doc. #11. Before getting to the substance of the filing, Link states “Plaintiff, for
the Amended Complaint and in addition to the original complaint, hereby states as
follows. [sic]” /d. at PagelD #142. It then lays out Link’s assertions, such as “(1)
Every person has the right to discuss matters of public concern with others they
trust[;] (2) Gender and sexual orientation is a right guaranteed by the United States
Constitution[; and] (3) Protection of speech, expression and association is a
freedom undeniable to all people[.]” /d. The Amended Complaint also states facts
involving conversations, encounters, and details from Link’s personal life outside of
his work at school, jd. at PagelD #142, before asserting two rights (free
speech/expression and free association), requesting interlocutory appeal, and
requesting that the Court find Link’s prior resignation to be unenforceable. /d.
In response, the Board filed another motion to dismiss on October 31, 2023,
contending that Link had again failed to state a claim for relief. Doc. #12.
Specifically, the Board contended that Link’s amended complaint “fails to allege
any actions taken by [the Board] that somehow infringed on” Link‘s rights to free
speech/expression and free association. /d. at PagelD #144.
On November 27, 2023—nearly four weeks after the Board had filed its
motion to dismiss—Link filed his response, Doc. #14, and stated that he “believes
the claims in [his] original complaint are valid because the school has, and
continues to treat [him] poorly because [he] is transgender, and [he] wants them to
stop.” /d. at PagelD #153. Link also referred to an exhibit in his original—now
dismissed—complaint as evidence supporting his claims of First Amendment
violations by the Board. /d. (citing Doc. #1-9 at PagelD #39).
The Board filed its Reply, Doc. #15, on December 4, 2023, restating its
position on the Motion to Dismiss, Doc. #12, and asking that Link’s request to
supplement his amended complaint be denied as untimely. See Doc. #15 at PagelD
#156 (citing Fed. R. Civ. P. 15(a)).
Three weeks later, on December 27, 2023, and without leave of Court, Link
filed another document self-titled “Plaintiff's Second Amended Complaint,” Doc.
#16, which both sought leave of Court to file a Second Amended Complaint and
“to provide supplemental information to the original and amended complaints jn
response to the motion to dismiss.” Id. at PagelD #159 (emphasis added). Then,
on December 29, 2023, Link filed another nearly identical document that was also
self-titled “Plaintiff's Second Amended Complaint,” Doc. #17, stating in a footnote
that the duplicative filing was because the previous document “was filed without
proper editing of the conclusion,” and the present filing was the corrected version.
Id. atn.1.? Finally, on January 16, 2024—seventy-seven (77) days after the
motion to dismiss was filed and without leave of court—Link filed yet another
document self-titled “Plaintiff’s Second Amended Complaint.” Doc. #18. *
3 The prior filing, Doc. #16, had handwritten annotations on the final page. /d. at PagelD #164.
4 In a footnote on the first page of the filing, Link claims that “[t]lhe previous Plaintiff's Second
Amended Complaint [Doc. #17] was a motion for leave that was mislabeled,” that “this complaint
On January 30, 2024, the Board filed a Motion to Dismiss Second Amended
Complaint. Doc. #19. Link subsequently filed a response to that motion, Doc. #20,
on February 9, 2024, and the Board filed a reply, Doc. #21, on February 16, 2024.
Il. Legal Standard
Federal Rule of Civil Procedure 8(a) provides that a complaint must contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” The complaint must provide the defendant with “fair notice of what the
. . . Claim is and the grounds upon which it rests.” Bel/ Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Pro se filings are “to be liberally construed,” Estelle v. Gamble, 429 U.S. 97, 106
(1976), and "a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam) (quoting Este//e, 429 U.S. at 106) (internal
quotation marks omitted). But that leeway is not unlimited, and “[elven a pro se
pleading must provide the opposing party with notice of the relief sought, and it is
not within the purview of the district court to conjure up claims never presented."
Frengler v. Gen. Motors, 482 F. App'x 975, 976-77 (6th Cir. 2012).
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal
of a complaint on the basis that it “fail[s] to state a claim upon which relief can be
{Doc. #18] is also in addition to all other complaints,” and that Doc. #18 “is a clarification of the
First Amendment claims in the original complaint.” Doc. #18, PagelD #173 n.1.
granted.” The moving party bears the burden of showing that the opposing party
has failed to adequately state a claim for relief. DirecTV, inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir.
1991)). The purpose of a motion to dismiss under Rule 12(b)(6) “is to allow a
defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief
even if everything alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d
635, 638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a court must “construe
the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v.
City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting 7reesh, 487 F.3d at
476).
Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), the
complaint must contain “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. Unless the facts alleged show that the
plaintiff’s claim crosses “the line from conceivable to plausible, [the] complaint
must be dismissed.” /d. Although this standard does not require “detailed factual
allegations,” it does require more than “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” /d. at 555. “Rule 8 . . . does not
unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Legal conclusions
“must be supported by factual allegations” that give rise to an inference that the
defendant is, in fact, liable for the misconduct alleged. /d. at 679.
In ruling on a motion to dismiss, the Court may consider “the Complaint and
any exhibits attached thereto, public records, items appearing in the record of the
case and exhibits attached to defendant's motion to dismiss so long as they are
referred to in the Complaint and are central to the claims contained therein.”
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
il. Analysis
The Court finds that Link’s First Amendment claims have again failed to
provide “a short and plain statement ... showing that [he] is entitled to relief.” See
Fed. R. Civ. P. 8(a). None of the statements laid out in Link’s Amended Complaint
constitute a claim that provides the Board with “fair notice of what the ... claim is
and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (2007)
(quotation omitted).
As a threshold matter, Link’s original Complaint, Doc. #1, was dismissed in
its entirety by prior order of the Court. Doc. #10. This means that any facts or
claims therein are no longer part of the record and are not factored into any of the
Court’s subsequent rulings unless expressly restated in the amended complaint.
Except for Link’s passing reference to an exhibit attached to the original Complaint,
see Doc. #11 at PagelD #142 (citing Doc. #1-4), the Amended Complaint does not
explicitly incorporate, or otherwise reference, facts and claims from the original
Complaint. See generally id. So, when limiting the Court’s analysis to the four
corners of the Amended Complaint, Doc. #11, Link does not allege any actions
taken by the Board that would constitute a cognizable claim for a violation of his
rights, First Amendment or otherwise.
In the Amended Complaint, Doc. #11, Link briefly states three broad factual
assertions about people, places, conversations, and other details that have no
facial relevance to the Board or Link’s job in the district. /d. at PagelD 142. This
included a series of lunch meetings Link had with a former student, a conversation
with a barber about pornography, and that “[t]hroughout the summer of 2021
[Link] was questioning [his] gender and sexual orientation.” /d. Then, from the
layout of the Amended Complaint, Link’s apparent claims read as follows:
|. Plaintiff's right to free speech and association The Plaintiff has a
constitutional right to discuss [his] public gender and sexual orientation
with other teachers. The pornography discussion (see Doc. #1-4,
PagelD #25) [sic] was in a public barbershop.
Il. Plaintiff's right to free speech and expression The Plaintiff has a
constitutional right to share [his] public relationships with students. The
relationship (Id.) [sic] was in public restaurants.
lll. Plaintiff's interlocutory appeal If necessary. Plaintiff requests an
interlocutory appeal to review the revocation decision to file this claim.®
IV. Requested relief Due to resignation because of distress, and
revocation, a judgment that the resignation is unenforceable.
5 This Court cannot grant interlocutory appeals as that is a matter of jurisdiction reserved to the
legislature. See 28 U.S.C. § 1292(a) (setting the boundaries of appellate jurisdiction over
interlocutory decisions). Separately, as a matter of black letter law, interlocutory appeals only apply
to interlocutory orders, which are “order[s] that relate[] to some intermediate matter in the case;
any order other than a final order." Order, Black's Law Dictionary (11th ed. 2019) (emphasis
added). The Court’s previous order, Doc. #10, is not an intermediate order entitled to interlocutory
review because an involuntary dismissal without prejudice constitutes a final appealable order. See
Union Oil Co. v. Serv. Oil Co., 766 F.2d 224, 228 (6th Cir. 1985) (citing Robinson v. Fed. Nat‘/
Mortg. Ass'n, 673 F.2d 1247, 1249 (11th Cir. 1982)).
Id. Aside from the citation to the Board’s Title IX Investigative Report, Doc. #1-4,
which was an exhibit attached to the original Complaint, Doc. #1, Link’s Amended
Complaint made no attempt to clearly incorporate or restate any of its facts,
arguments, or claims.
As the Court acknowledged in its previous order, Doc. #10 at PagelD #130,
pro se filings are meant "to be liberally construed, " Estelle v. Gamble, 429 U. S.
97, 106 (1976), up to and including holding pro se complaints “to less stringent
standards than formal pleadings drafted by lawyers,” even if those complaints are
“inartfully pleaded.” See Erickson v. Pardus, 551 U. S. 89, 94 (2007) (per curiam)
(quoting Estelle, 429 U. S. at 106) (internal quotation marks omitted). However, as
the Court also observed, Doc. #10 at PagelD ##130-31, handling a pro se
complaint with liberality does not remove a plaintiff’s requirement to “provide the
opposing party with notice of the relief sought,” nor does it mean that the Court
must “conjure up claims never presented” by the plaintiff. Frengler v. Gen. Motors,
482 F. App'x 975, 976-77 (6th Cir. 2012). Link’s Amended Complaint, Doc. #11,
expects the Court to do just that.
This failure of pleading is further confounded by Link’s response to the
Board’s Motion to Dismiss, Doc. #14, which attempts a backdoor revision to the
Amended Complaint by referencing another exhibit attached to the original
complaint. See Doc. #14 (citing Doc. #1-9). The response also sought leave from
the Court “to file supplemental information to the amended complaint in response
to the Defendant’s Motion to Dismiss. Doc. #14 at PagelD #152 (emphasis added).
Link’s backdoor attempts to revise the amended complaint happened thrice more.
See Doc. ##16-18.
First, as a matter of procedure, the Board’s Motion to Dismiss, Doc. #12,
was timely filed on October 31, 2023. Link’s response, Doc. #14, was filed on
November 27, 2023, which was twenty-seven (27) days later and thus untimely
under Local Civil Rule 7.2(a)(2). (“Any memorandum in opposition shall be filed
within twenty-one days after the date of service of the motion) (emphasis added).
As the Supreme Court has previously observed:
[Wle have never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by those who
proceed without counsel. As we have noted before, “in the long run,
experience teaches that strict adherence to the procedural requirements
specified by the legislature is the best guarantee of evenhanded
administration of the law.”
McNeil v. United States, 508 U.S. 106, 113 (1993) (quoting Mohasco Corp. v.
Silver, 447 U.S. 807, 826 (1980)). Second, even assuming the Response, Doc.
#14, had been timely filed, Link’s reference to external documents beyond his
Amended Complaint are unavailing as anything connected to the original Complaint
is not part of the record after the Court’s previous order dismissing all claims. See
Doc. #10. Finally, even if the Court both ignored the untimeliness of the filing and
allowed refence to materials no longer in the record, Link’s claim that “[his] first
amendment [sic] rights to association and expression [were] infringed” as shown
by “evidence [that] is in [the Title IX Report],” Doc. #14 at PagelID #153, is not
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enough to construct a coherent, cognizable First Amendment claim against the
Board.
The Title IX Report, Doc. #1-9, was already considered by the Court when
dismissing the original complaint for failing to state a cognizable First Amendment
Claim. See Doc. #10 at PagelD #125 (stating that the factual allegations in the
complaint and its attachments were considered true and authentic for the purposes
of ruling on a motion to dismiss); see a/so id. at PagelD ##138-39 (discussing
how the Court dismissed the original complaint’s First Amendment claims). As the
Court observed when dismissing the original Complaint, “[t]he first claim
references ‘actions [of Defendants] based on Plaintiff’s conversations’ . . .
however, no information is given to indicate .. . what actions of the Defendants
constituted the violation.” Doc. #10 at PagelD #139 (citing Doc. #1 at PagelD #3
(citing Doc. #1-9)). Link’s generic attempts to once again have the Court construct
a valid First Amendment claim on his behalf from the information contained in the
Title IX Report, Doc. #1-9, fails for the same reasons it failed previously.
Additionally, Fed. R. Civ. Pr. 15(a)(2) allows, “when justice so requires,” for
a party to amend their pleadings with leave of court. However, “the lenient
treatment generally accorded to pro se litigants has limits,” Pilgrim v. Littlefield, 92
F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th
Cir. 1991)), and when a pro se plaintiff “became aware of the potential
deficiencies in their complaint, and were given the opportunity to remedy any
deficiencies, they cannot now seek shelter in their pro se status." /d. In the Board’s
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previous motion to dismiss for failure to state a claim, Doc. #6, which the Court
ultimately sustained, Doc. #10, the Board laid out the elements for claiming First
Amendment retaliation in the Sixth Circuit:
For a public employee to establish a claim of First Amendment
retaliation, the person must demonstrate that: (1) he or she was
engaged in a constitutionally protected activity; (2) the defendant’s
adverse action caused [him or her] to suffer an injury that would likely
chill a person of ordinary firmness from continuing in that activity; and
(3) the adverse action was motivated at least in part as a response to
the exercise of his or her constitutional rights. Cockrel! v. Shelby County
Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). To demonstrate that
he or she was engaging in constitutionally protected speech, a teacher
must show that his or her speech touched on matters of public concern,
and that his or her “interest in commenting upon matters of public
concern...outweigh[s] the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its
employees.” Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.2000).
Doc. #6 at PagelD #97. Despite having been provided with citations and a
roadmap for properly filing a First Amendment retaliation claim, when given the
opportunity to file an amended complaint, Link instead filed a pleading that was
even more threadbare on the First Amendment than its predecessor. See generally
Doc. #11. This de minimis Amended Complaint was then subject to the Board's
instant Motion to Dismiss. Doc. #12.
Then, having been once again presented with the deficiency in his pleading,
Link repeatedly attempted to redraft his Amended Complaint by way of a series of
evolving filings self-titled “Plaintiff's Second Amended Complaint.” See Doc.
##16-18. Similar to his Response, Doc. #14, Link does request leave of Court to
file supplemental information in two of the three filings; Doc. #4#16-17; however,
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the final and most self-contained filing, Doc. #18, was summarily filed without first
seeking the Court's leave to do so. Compare id. at PagelD #173 (“The Plaintiff
respectfully submits Plaintiff's Second Amended Complaint”) with Doc. #16 at
PagelD #159 (“[Plaintiff] respectfully requests leave of the court to file a second
amended complaint to provide supplemental information”) and Doc. #17 at PagelD
#166 (“[Plaintiff] respectfully requests leave of the court to file a second amended
complaint to provide supplemental information”).
Because the Amended Complaint does not present more than mere “labels
and conclusions,” Twombly, 550 U.S. at 555, and since it is not the role of the
Court “to conjure up claims” that a pro se plaintiff does not adequately present,
Frengler, 482 F. App'x at 977, Link’s claims necessarily fail. Additionally, because
Link’s attempts to serially amend his amended complaint were made without leave
of Court, they also fail.
IV. Conclusion
For the reasons set forth above, the Court SUSTAINS Defendants’ Motion to
Dismiss. Doc. #12. The Court also SUSTAINS Defendants’ Motion to Dismiss
Second Amended Complaint. Doc. #19.
The Court’s dismissal is without prejudice to the filing of a Final Amended
Complaint within seven (7) days of this Decision and Entry, consistent with the
strictures of Fed. R. of Civ. P. 11 and this Court’s opinion. Should Plaintiff fail to
provide either a timely or a cognizable pleading, the matter will be dismissed with
prejudice.
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Defendants will have fourteen (14) days to file a response to Plaintiff's
pleading.
Date: February 21, 2024 ( feurer i AE
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
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