NUOVO v. OHIO STATE UNIVERSITY

(Doc. # 51 ¶ 194.) What this means is that, even assuming arguendo that OSUPS and OSUPI are state actors, Plaintiff has asserted a claim against these entities for conduct over which they had no control and with which they were not involved based on the alleged facts. In other words, "[s]ince Plaintiff's due process claim does not appear to extend to any defendants other than OSU, the claim should be dismissed for this reason alone." (Doc. # 14, at 19, incorporated by Doc. # 55, at 40.) This Court agrees. Plaintiff has failed to set forth any facts that, necessarily accepted as true, present a plausible due process violation by OSUPS and OSUPI that constitutes a viable § 1983 claim upon which this Court can grant relief. The Court thus GRANTS the motion to dismiss claim eight and declines to discuss the moot alternative arguments for dismissal set forth in the briefing.

Turning to claim nine, the Court notes that the heading of the claim in the Second Amended Complaint reads "Abuse of Process by Defendant Dr. Sanford Barsky, acting as agent/employee of OSUPI and OSUPS." (Doc. # 51, at 26.) Ohio law provides that

[t]he three elements of a claim for abuse of process are "(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process."

Hershey v. Edelman, No. 09AP-400, 2010 WL 1820213, at *6 (Ohio 10th App. Dist. May 6, 2010) (quoting Yaklevich v. Kemp Schaeffer Rowe Co. (1994), 68 Ohio St. 3d 294, 626 N.E.2d 115, paragraph one of the syllabus). OSUPS and OSUPI assert that it is unclear whether Plaintiff intends to assert this claim against any of the OSUPS Defendants.

These defendants incorporate by reference the arguments for dismissal that Barsky has set forth in his own prior motion to dismiss, as well as asserting that there is simply no factual foundation to support such a claim against OSUPS and OSUPI. This latter contention is correct. Assuming arguendo that Plaintiff's poor pleading is intended to assert claim nine against OSUPS and OSUPI, the Court recognizes that the factual basis for this claim is the 2009 scientific misconduct charges against Plaintiff. This is years after the 2006 termination of Plaintiff's employment with OSUPS and OSUPI, and Plaintiff has failed to allege any facts supporting his apparent conclusion that Barsky pursued the 2009 charges pursuant to his purported relationship with OSUPS and OSUPI. Absent some predicate factual basis, Plaintiff has failed to state a plausible abuse of process claim against OSUPS and OSUPI. Accordingly, the Court GRANTS their motion to dismiss claim nine.

In Plaintiff's tenth claim for relief, he asserts a state law claim for conspiracy against various individuals, two of whom are Mekhijian and Sedmak. Both men move for dismissal on several grounds, including the contention that if, as Plaintiff asserts, they were acting as common agents or employees of OSUPS and OSUPI, then he has failed to state a plausible conspiracy claim.

The concept that Mekhijian and Sedmak invoke, without using the words, is the intra-corporate conspiracy doctrine. Under Ohio law, the tort of civil conspiracy is "a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages." Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d 863, 866 (1995). An underlying unlawful act is also required before a party can prevail on a civil conspiracy claim. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 700 N.E.2d 859, 868 (1998). What can defeat such a conspiracy claim, however, is when the purported conspirators are all part of the same corporate or governmental entity.

The intra-corporate conspiracy doctrine provides that employees of a corporation or governmental entity cannot conspire among themselves because they are treated as one entity. Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991) (citing Dougherty v. American Motors Corp., 728 F.2d 334, 339 (6th Cir. 1984)). See, e.g., Brunson v. City of Dayton, 163 F. Supp. 2d 919, 927 (S.D. Ohio 2001) (granting motion to dismiss § 1985(3) allegation for failure to state a claim upon which relief may be granted because intracorporate conspiracy doctrine precluded finding of conspiracy). The doctrine has been applied to the Ohio common law claim. See, e.g., Lutz v. Chesapeake Appalachia, L.L.C., No. 4:09CV2256, 2010 WL 2541669, at *5 n. 13 (N.D. Ohio June 18, 2010); Kerr v. Hurd, No. 3:07-cv-297, 2010 WL 890638, at *10 (S.D. Ohio Mar. 15, 2010). Plaintiff's classification of the conspirators as agents or employees of OSUPS and OSUPI runs afoul of the prohibition that "[w]here defendants, allegedly co-conspirators, are members of the same collective entity, there are not two separate `people' to form a conspiracy." Kerr, 2010 WL 890638, at *10. Thus, as a result of the application of the intra-corporate conspiracy doctrine, Plaintiff has failed to set forth facts-as opposed to unsubstantiated and unwarranted legal conclusions-that present a plausible conspiracy involving Mekhijian and Sedmak. The Court therefore declines to address the moot alternative grounds for dismissal and GRANTS the motion to dismiss claim ten.

Citing Ohio Revised Code §§ 4112.01 and 4112.14, Plaintiff asserts in claim eleven a national origin, race, and ancestral discrimination claim against OSUPS and OSUPI. These defendants move for dismissal on the grounds that § 4112.01 does not present a statutory claim for relief and § 4112.14 presents only a claim for age discrimination, which Plaintiff does not support with facts.

OSUPS and OSUPI are correct that § 4112.01 is simply a definitions statute and does not contain a private claim for relief, while § 4112.14 does present a claim for relief for age discrimination. Also correct is the contention that Plaintiff has failed to include any facts anywhere in his Second Amended Complaint suggesting that OSUPS or OSUPI discriminated against him on the basis of his age. Absent such necessary content in the pleading, it is beyond question that Plaintiff has failed to assert factual content that allows this Court to draw the reasonable inference that these defendants are liable for the misconduct alleged. The Court GRANTS the motion to dismiss claim eleven.

C. Barsky's Motion to Dismiss (Doc. # 56)

Barsky's motion to dismiss targets three of the claims that Plaintiff asserts against him. The first such target is claim four, in which Plaintiff asserts that Barsky and others engaged in race and ancestral discrimination in violation of 42 U.S.C. § 1981. Barsky contends that Plaintiff has failed to allege a plausible claim upon which this Court can grant relief. Barsky presents the crux of his argument as follows: "Plaintiff asserts general, baseless allegations that Dr. Barsky `hated Italians," and, on one instance, referred to Plaintiff as `a stupid Italian.'" (Doc. # 56, at 12.)

This argument is unpersuasive. Plaintiff correctly notes in his briefing that the Second Amended Complaint actually contains much more in terms of relevant factual content when the quoted material is placed in the context in which it is actually pled. The Second Amended Complaint provides that during Plaintiff's poor performance evaluation, the following exchange took place:

During the evaluation, Dr. Barsky stated: "Why do you think I have taken all of these negative actions against you." Dr. Nuovo said in response: ["]I don't know." Barsky then stated: "How bout it's because I don't like Italians."

(Doc. # 51 ¶ 81 (punctuation retained from pleading).) Necessarily accepting these alleged facts as true for purposes of today's Rule 12(b)(6) inquiry, this Court is left with direct evidence of discrimination that amounts to more than the general allegations Barsky alleges.

Barsky also argues that the Court must dismiss claim four to the extent that it seeks monetary relief from Barsky acting as an OSU employee. Plaintiff insists in his memorandum in opposition, however, that he has named Barsky in claim four only in his individual capacity and not in his capacity as an OSU employee. This representation tracks language in the Second Amended Complaint in which Plaintiff pleads that "Barsky . . . is being sued in his individual capacity (not as an OSU employee) . . . with regard to 42 U.S.C. § 1981 only." (Doc. # 51 ¶ 13.) Barsky counters in his reply memorandum that, "looking at the Second Amended Complaint, it is clear that the claim is necessarily asserted against Dr. Barsky in his capacity as an OSU employee." (Doc. # 81, at 2.) Barsky also acknowledges in his briefing, however, that perhaps claim four states a § 1981 claim against Barsky in both his official and individual capacities.

This Court recognizes that Plaintiff's pleading is often, at best, less than clear. The Court is also aware that if Plaintiff intended to pursue monetary relief on an official capacity claim in claim four, then Barsky's sovereign immunity argument would require attention. But Plaintiff has represented that his pleading in claim four presents a limited or particularized scope. Despite the pleading's careless conflation of Barsky as an individual and its descriptions of his acts as an OSU employee, claim four is thus confined to an individual capacity claim against Barsky. The Court therefore DENIES Barsky's motion to dismiss in regard to claim four.

In his seventh claim, Plaintiff asserts a claim against Barsky and others for First Amendment retaliation, which the Court again notes is presumably under 42 U.S.C. § 1983. Barsky argues that dismissal of this claim is warranted because Plaintiff's speech-his reporting of alleged misdiagnoses-falls outside First Amendment protection. The Court has already concluded above in connection with the OSUPS Defendants' motion to dismiss that Plaintiff's speech concerning OSU policies, practices, and problems was speech made pursuant to his official duties, despite Plaintiff also classifying himself as a private citizen engaging in whistle blowing. That same rationale proves dispositive here, which serves to moot Barsky's alternative arguments for dismissal. The Court GRANTS the motion to dismiss claim seven in regard to Barsky.

The last claim Barsky targets in his motion to dismiss is Plaintiff's § 1983 claim against Barsky and others predicated upon an asserted violation of Plaintiff's procedural due process rights. In discussing above this eighth claim in connection with the OSUPS Defendants' motion to dismiss, the Court explained that the claim targets the May 2009 reopening of the previously dismissed charges of research misconduct brought against Plaintiff. The Second Amended Complaint pleads that the purported constitutional violation is that "OSU failed to follow its own misconduct policies." (Doc. # 51 ¶ 194.) No factual contention in the pleading identifies Barsky as responsible for the processing of his own complaint or provides an inference that Barsky in any way controlled the actions of the OSU individuals who handled his complaint. The mere filing of charges does not control how OSU handles the charges. Thus, similar to the OSUPS Defendants, Barsky is entitled to dismissal because the pleading fails to present any due process violation by this defendant that constitutes a plausible § 1983 claim. Finding the alternative arguments for dismissal to be moot, the Court therefore GRANTS the motion to dismiss claim eight against Barsky.

Last, the Court recognizes that, based upon the rationale set forth in the immediately following discussion presented in the next section, this Court lacks jurisdiction over claims one, three, nine, and ten. See Ohio Rev. Code § 9.86; Ohio Rev. Code § 2743.02(F). The Court therefore DISMISSES these state law claims without prejudice.

D. The OSU Defendants' Motion to Dismiss (Doc. # 57)

As already noted, the OSU Defendants consist of OSU, Gee, Cloyd, Mekhijian, Whitacre, Alutto, Sedmak, and Bornstein. Because some of the claims target only the individual defendants, the Court shall at times refer in this section to Gee, Cloyd, Mekhijian, Whitacre, Alutto, Sedmak, and Bornstein as "the OSU Individual Defendants."

The OSU Defendants move for dismissal of seven of Plaintiff's claims. They assert that dismissal of three of these claims is warranted because this Court lacks the jurisdiction to entertain such state law claims. This Court agrees.

Two statutes support the OSU Defendant's position. The first statute, Ohio Revised Code § 9.86, provides in relevant part that

no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.

Ohio Rev. Code § 9.86. The second statute, recognizes this immunity and vests the threshold determinations in the Ohio Court of Claims by providing:

A civil action against an officer or employee . . . that alleges that the officer's or employee's conduct was manifestly outside the scope of the officer's or employee's employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action.

Ohio Rev. Code § 2743.02(F). Thus, as another judicial officer has recognized, "[t]he Sixth Circuit has read §§ 9.86 and 2743.02(F) together to hold that a state employee is immune from state law claims until the Court of Claims has held that § 9.86 immunity is unavailable." Prior v. Mukasey, No. 3:08CV994, 2008 WL 5076821, at *2 (N.D. Ohio Nov. 21, 2008). This means that, "`[u]ntil the Ohio Court of Claims determines that [defendant] are not immune, there is no cause of action cognizable under Ohio law over which the district court can assert jurisdiction.'" Id. (quoting Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989)). Moreover, the Ohio Court of Claim's exclusive jurisdiction to engage in the statutorily mandated inquiry applies to individuals with dual employment who serve as employees of private corporations while working under the umbrella of an affiliated state medical institution. Theobald v. Univ. of Cincinnati, 111 Ohio St. 3d 541, 543, 546, 857 N.E.2d 573, 577, 579 (2006) (addressing the issue of "[a] health-care practitioner who has dual status as a private practitioner and as an employee of a state medical institution").

Plaintiff's arguments, which attempt to remove the individuals (and their conduct) targeted by his public policy, intentional infliction of emotional distress, and conspiracy claims from the scope of statutory immunity, are therefore inappropriate for this Court and more appropriate for the Ohio Court of Claims. Accordingly, the Court GRANTS the motion to dismiss the first, third, and tenth claims and dismisses these claims without prejudice. See Underfer v. Univ. of Toledo, 36 F. App'x 831, 834-35 (6th Cir. 2002) (dismissing without prejudice state law claims that should have first been brought in state court of claims).

This leaves Plaintiff's federal claims for relief. OSU seeks dismissal of select non-compensation components of claim two on the grounds that Plaintiff failed to assert the remaining components of his claim within the proscribed time limitations. To be specific, OSU does not seek the dismissal of the Title VII compensation claims or "the results of the human resources investigation and Plaintiff's appeal of that investigation; the alleged non-responses to his letters to OSU Individual Defendants Gee, Alutto, and Cloyd; and the denial of Plaintiff's request to be restored as Director of Cytology." (Doc. # 57, at 10.) Rather, OSU seeks the dismissal of all other events that took place prior to October 26, 2007. To support this, OSU argues that Plaintiff failed to include these events as part of a timely EEOC charge, an argument that echoes the OSUPS Defendants' successful attack on claim two addressed above.

Unlike the OSUPS Defendants' motion to dismiss, Plaintiff has filed a memorandum in opposition to OSU's motion to dismiss. Plaintiff argues that dismissal is not warranted because the pre- and post-October 26, 2007 events constitute continuing violations. As OSU correctly explains in its briefing, however, this argument is unpersuasive. The events of which Plaintiff complains are independently actionable, discrete acts that fail to present a general pattern or practice of class-wide discrimination pursuant to an official policy. See Hunter v. Sec'y of U.S. Army, 565 F.3d 986, 994 (6th Cir. 2009); Russell v. Ohio Dep't of Admin. Servs., 302 F. App'x 386, 390 (6th Cir. 2008).

Equally unpersuasive is Plaintiff's argument that equitable tolling should salvage his otherwise time-barred claims. Plaintiff avers that he relied on representations from supervisors that the alleged discrimination would be resolved soon and that he would be transferred. But such purported representations do not constitute the sort of statements that justify the

extraordinary application of tolling. That Plaintiff elected to forego filing with the EEOC based on a potential likelihood that there would be no future discrimination does not render inequitable his self-inflicted decision to not act on his rights.

One final point in regard to claim two warrants discussion. Plaintiff asserts that because he did not know of the misconduct charge against him until February 15, 2008, this aspect of his claim should survive. OSU states in its reply memorandum that it "never mentioned this action in listing the untimely events and has only moved to dismiss Plaintiff's Title VII claims to the extent they are untimely." (Doc. # 82, at 8.) Accordingly, the Court accepts that OSU has not requested dismissal of this component of claim two. The Court therefore GRANTS the motion to dismiss claim two except in regard to the compensation component of the claim, the misconduct component, and those components addressing events that occurred after October 26, 2007.

In claim four, Plaintiff asserts a § 1981 claim for relief based on race and ancestry discrimination. The OSU Individual Defendants move for dismissal on several grounds, perhaps the most prominent of which is their asserted lack of personal involvement in the asserted discrimination. They note that "Plaintiff appears to fault them only for their lack of response to his complaints" and direct this Court to authority intended to support the proposition that mere inaction or unresponsiveness does not equal the requisite personal involvement necessary to present a plausible § 1981 claim. (Doc. # 57, at 12.) The facts pled in relation to Gee, Alutto, Cloyd, and Bornstein do indeed present alleged indifference to Plaintiff's asserted plight. The question is whether such indifference presents a plausible claim.

Depending upon the circumstances, a lack of involvement is insufficient to support a claim of individual § 1981 liability. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (6th Cir. 2000) (holding that negligence in the enforcement of an anti-discrimination policy fails to "constitute the `personal involvement' or affirmative link' necessary to support a claim of individual liability" under § 1981). Under other circumstances, however, a failure to act can present a plausible § 1981 claim. See Wallace v. DM Customs, Inc., No. 8:04-cv-115-T-23TBM, 2006 WL 2882715, at *7 (M.D. Fla. Oct. 6, 2006) (noting that "[p]ersonal involvement may be satisfied by proof that the individual had knowledge of the alleged acts of discrimination and failed to remedy or prevent them").

Plaintiff argues that the indifference here rises to the level of gross negligence, while the moving defendants insist that Plaintiff has alleged mere negligence. This is a close call, but the Court is mindful that its Rule 12(b)(6) inquiry asks whether the factual content pled allows this Court to draw the reasonable inference that the targeted defendants are liable for the misconduct alleged. Drawing all reasonable inferences in Plaintiff's favor, the Court concludes that he has just barely presented enough to survive dismissal and pursue his claim here. This Court similarly rejects the relatively Spartan invocation of qualified immunity here given that the apparent nature of the movants' jobs suggests that their assertion that they "had no reason to believe that they could be held personally liable . . . or that they were obligated to personally respond to Plaintiff's complaints" ignores the nature of their duties. Consequently, the Court DENIES the motion to dismiss claim four in regard to the moving defendants.

The OSU Individual Defendants also move for the dismissal of claim seven. Among other alternative grounds, they argue that Plaintiff has failed to have engaged in constitutionally protected speech. This Court has already held above that Plaintiff's speech concerning OSU policies, practices, and problems was speech made pursuant to his official duties, despite Plaintiff also classifying himself as a private citizen engaging in whistle blowing. The same analysis applies here and proves dispositive of Plaintiff's claim. This Court therefore GRANTS the motion to dismiss claim seven for this reason, which moots the remaining arguments for dismissal.

In claim eight, the last remaining claim for discussion, Plaintiff asserts violations of his procedural due process rights. He has sued OSU, as well as Bornstein and Whitacre in their individual capacities only, seeking monetary damages and injunctive relief.

The OSU Defendants move for dismissal on a number of grounds. OSU itself relies upon an often repeated rationale that another judicial officer in this District essentially summarized as follows:

For a defendant to be held liable for any alleged deprivation of rights under § 1983, the defendant would have to be deemed a "person." The United States Supreme Court has held that "neither a State nor its officials acting in their official capacities are `persons' under § 1983." Will v. Michigan Dept. of State Police, 591 U.S. 58, 71 (1989). OSU Medical Center is an agency of the State of Ohio. See Verhoff v. Ohio State Univ. Med. Ctr., 125 Ohio Misc.2d 30, 797 N.E.2d 592 (Ohio Ct. Clms. 2003); see also Caruso v. State, 136 Ohio App.3d 616, 737 N.E.2d 563 (Ohio App. 10th Dist. 2000). OSU Medical Center, therefore, cannot be held liable under § 1983. Furthermore, the Eleventh Amendment to the United States Constitution, which prohibits federal courts from granting money judgments or injunctive relief against state agencies, would also bar any suit against OSU Medical Center under § 1983. Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (holding that "[i]t is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment").

Henricks v. Pickaway Corr. Inst., No. 2:08-cv-580, 2009 WL 89200, at *2 (S.D. Ohio Jan. 7, 2009) (footnote omitted). See also Underfer, 36 F. App'x at 834 (describing application of Eleventh Amendment to public-funded Ohio universities); Hutton v. Jackson, No. 1:06cv65, 2007 WL 2111102, at *7 (S.D. Ohio July 19, 2007) (collecting cases applying Eleventh Amendment to OSU and OSU Medical Center). In light of this reasoning, the Court must agree with the OSU Defendants that "Plaintiff's procedural due process claim against OSU never gets off the ground." (Doc. # 57, at 18.) The Court GRANTS the motion to dismiss claim eight against OSU.

Bornstein and Whitacre then move for dismissal of the individual capacity components of claim eight on the grounds of qualified immunity. The doctrine of qualified immunity, under certain circumstances, operates to shield from civil liability governmental officials who are performing official duties. Sinick v. County of Summit, 76 F. App'x 675, 678-79 (6th Cir. 2003). This affirmative defense is meant to safeguard an official's proper decision making process and offers that party potential relief from frivolous suits. See D'Agastino v. City of Warren, 75 F. App'x 990, 993 (6th Cir. 2003).

The Sixth Circuit has also explained that qualified immunity "shields government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In addition to shielding officials from liability, qualified immunity may entitle the official to not stand trial or face the other burdens of litigation. Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). This principal directs courts to make a ruling on the issue of qualified immunity early in the proceedings, so that the costs and expenses of trial are avoided where the defense is dispositive. Id.

In addressing the potential applicability of qualified immunity, a court asks two questions: (1) "whether, on the plaintiff's facts, there has there been a violation." and (2) "whether that violation involved `clearly established constitutional rights of which a reasonable person would have known.'" Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002) (quoting Dickerson v. McClelland, 101 F.3d 1151, 1158 (6th Cir. 1996)). See also Saucier, 533 U.S. at 201. A court "may exercise its `sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.'" Mingus v. Butler, 591 F.3d 474, 479 (6th Cir. 2010) (quoting Pearson v. Callahan, ___ U.S. ___, ___, 129 S.Ct. 808, 818 (2009)).

Qualified immunity thus provides that an official can be found to have violated the Constitution, but be granted immunity for reasonable mistakes as to the legality of his or her action. Saucier, 533 U.S. at 206. The reasonableness of such mistakes is inherently dependant upon the clarity of the legal constraints governing the particular conduct involved. The contours of the right must be sufficiently clear that a reasonable official would understand that what he or she is doing violates that right. Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). See also Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991) ("A public official is entitled to qualified immunity for conduct in performing discretionary functions so long as that conduct does not violate clearly established statutory or constitutional rights of which a reasonable [official] would have known").

In determining whether a defendant is entitled to qualified immunity, "[t]he ultimate burden of proof is on [the plaintiff] to show that [the defendants] are not entitled to qualified immunity." Wegener, 933 F.2d at 392. See also Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 1992). Further, "[w]hen ruling on qualified immunity, the district court should indicate the clearly established right at issue and the factual basis for its conclusion that a genuine issue exists as to the commission of acts violating that right." Wegener, 933 F.2d at 392 (citing Poe v. Haydon, 853 F.2d 418, 423-24, 426 (6th Cir. 1988)).

Relying on this framework, Bornstein and Whitacre argue that, on the facts pled, there is no constitutional violation and, even if there were, neither defendant should reasonably have known that their alleged deviation from protocol in handling the revived misconduct charge amounted to a deprivation of rights under the Constitution. They direct this Court to case law purportedly standing for the proposition that a state actor's violation of internal rules or procedures does not present a due process claim.

Plaintiff in turn asserts that Bornstein and Whitacre violated his due process rights by failing to conduct a screening of the misconduct charges before they reopened the inquiry, despite OSU's policy calling for such a screening and despite federal law allegedly requiring such misconduct procedures. Unhelpfully, his memorandum in opposition in regard to this claim states that "it is difficult to comprehend how a state law remedy could fix the failure to perform a preliminary assessment" without devoting discussion to whether any state law remedy, however arguably limited, nonetheless exists. (Doc. # 80, at 20.)

The Court begins with the cases to which Bornstein and Whitacre direct this Court for authority precluding claim eight. These defendants contend that "claims that a state actor failed to comply with internal rules or procedures have long been held inadequate to support procedural due process claims" and cite as support Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir. 1984), and Anderson v. Ohio State University, No. C-2-00-123, 2001 WL 99858 (S.D. Ohio Jan. 22, 2001). Such reliance is at least partially problematic.

In Hall, the court of appeals addressed a fact pattern in which an expelled student asserted a due process claims predicated in part upon his school's purported failure to follow its own unwritten practice of requiring a student accuser to put a charge against the expelled student into writing. The Sixth Circuit stated that "the school may have violated" the internal practice and noted that "that particular charge was not the basis for the decision to expel" the student, despite a panel member considering the accuser's testimony to be significant. Hall, 742 F.2d at 309 (emphasis added). Thus, the "process" at issue was ultimately irrelevant because its alleged violation was not grounds for the resulting prejudice to the expelled student. In referencing the process issue, however, the court of appeals notably stated that "such a violation of internal rules does not establish a cognizable constitutional violation in any event." Id.

At first blush, this statement would appear to lend support to the moving defendants' position. But two factors weaken this perceived support. First, the court of appeals specifically employed the qualifying word "such" in stating "such a violation of internal rules." The deliberate reference back to the specific type of violation involved in that case-in other words, a violation of process that did not factor into the outcome that created the alleged resultant harm-precludes reading the statement to stand for a blanket proposition that any violation of internal rules does not establish a cognizable constitutional violation, which is the proposition that Bornstein and Whitacre ask this Court to accept and apply here. Hall is thus tied to a specific type of violation-one that presents no actual effect on the complaining party's situation.

Second, the authority the court of appeals relied upon for its internal-policy violation rule in Hall does not support the broad rule statement asserted by Bornstein and Whitacre. Hall cites to footnote eight of Board of Curators v. Horowitz, 435 U.S. 78 (1978). That footnote addresses a scenario in which an institution "violated" its own rules by affording students even more process than the rules required be given. Id. at 92 n. 8. Thus, Hall's reliance on Horowitz is apparently recognition not that any departure from internal policies is not cognizable as a constitutional violation. Rather, Hall relies upon Horowitz as support for recognizing that some departures from internal protocols fail to constitute constitutional violations ( i.e., departures without negative ramifications, for example).

More helpful to the moving defendants is the other case they cite to support their rule statement and upon which they primarily rely in their reply memorandum, Anderson v. Ohio State University, 2001 WL 99858. In Anderson, a judicial officer in this District addressed a situation in which the school failed to follow its own rules governing pre-termination hearings. That judge stated:

[T]he Sixth Circuit has consistently stated that a violation of internal rules, such as the university's own rules governing hearings, "does not establish a cognizable constitutional violation." Hall, 742 F.2d at 309; see also Purish v. Tennessee Tech. Univ., 76 F.3d 1414, 1423 (6th Cir. 1996); Gies v. Flack, No. C-3-96-61, 1996 WL 1671234, at *7 (S.D. Oh. Apr. 24, 1996) ("Plaintiff cannot maintain a due process claim for [the university's] alleged failure to adhere to its handbook procedures for removing him from tenure."). After all, "the federal courts, and not the [u]niversity[,] . . . are responsible for establishing the contours of the Due Process Clause of the Fourteenth Amendment." Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 522 (10th Cir. 1998). Accordingly, this Court will analyze the allegations in the Amended Complaint under federal law defining the contours of procedural due process.

Id. at *5. This statement of the law (relying not just on the language of Hall but other cases as well) and its application in Anderson prove more useful than Hall alone because Anderson constitutes a case in which procedure deviations that did not ultimately deprive a plaintiff of the constitutionally guaranteed minimum level of procedural due process did not present an actionable § 1983 claim.

Anderson is thus important here because it not only teaches that not all deviations are constitutionally impermissible, however notably unpleasant and inconvenient they may be, but it also then applies that rule to a failure to afford a party all of the process an internal policy set forth. That application is closer to the instant case than the facts of Hall. The rule that some deviations are constitutionally impermissible while others are not therefore informs the argument of Bornstein and Whitacre that even if they did commit a constitutional violation, the violation did not involve a clearly established constitutional right of which a reasonable person would have known.

Given the murky clarity of the legal constraints governing the referral and screening process involved, this Court cannot conclude that the contours of procedural due process surrounding the preliminary component of the misconduct protocol is sufficiently clear so that Bornstein and Whitacre would understand that what they were doing violated the Constitution. Saucier, 533 U.S. at 202. Thus, the Court cannot say that it was clearly established that the preliminary assessment step of the misconduct process is constitutionally compelled. See Anderson, 2001 WL 99858, at *6 ("Procedural due process is concerned only with whether Plaintiff received a meaningful opportunity to present his defense. With that said, the Court notes that `[t]he Supreme Court has consistently rejected a concept of due process which would afford all complaining parties, whatever the context of the dispute, an inflexible "checklist" of legal rights.'" (quoting Frumkin v. Bd. of Trustees, 626 F.3d 19, 21 (6th Cir. 1980))).

The consequent conclusion is that, even assuming arguendo that Bornstein and Whitacre should have performed a preliminary assessment or screening, their purportedly mistaken belief that they could not and their failure to do so thus constitute at most reasonable mistakes as to the legality of their actions. These defendants are therefore entitled to qualified immunity, and the Court accordingly also GRANTS the motion to dismiss the individual capacity components of claim eight.

III. Conclusion

The Court GRANTS the OSUPS Defendants' motion to dismiss. (Doc. # 55.) This Court dismisses claims one through three as applicable to the OSUPS Defendants, any part of claim four intended to apply to OSUPA and OSUPI for events occurring after January 20, 2006, the emotional injury damages component of claim five, and claims six through eleven as applicable to the OSUPS Defendants.

This Court also GRANTS IN PART and DENIES IN PART Barsky's motion to dismiss. (Doc. # 56.) Claim four remains pending only as an individual capacity § 1981 claim against Barsky, while the Court dismisses claims seven and eight against Barsky. This Court also dismisses without prejudice claims one, three, nine, and ten against Barsky.

Last, the Court GRANTS IN PART and DENIES IN PART the OSU Defendants' motion to dismiss. (Doc. # 57.) This Court dismisses without prejudice claims one, three, and ten, dismisses claim seven and eight, and dismisses the time-barred components of claim two. The compensation component of claim two remains pending, as does the claims related to the misconduct charge and those events that occurred after October 26, 2007. The entirety of claim four remains pending.

IT IS SO ORDERED.