Meyers et al v. Cincinnati Board Of Education et al

Filing 43

ORDER granting 40 Plaintiffs' Motion to Lift Stay. Signed by Judge Timothy S. Black on 5/29/19. (rrs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KAREN MEYERS, et al.,

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Plaintiffs,
vs.
CINCINNATI BOARD OF
EDUCATION, et al.,
Defendants.

Case No. 1:17-cv-521
Judge Timothy S. Black

ORDER GRANTING PLAINTIFFS’ MOTION TO LIFT STAY (Doc. 40)
This civil action is before the Court upon Plaintiffs’ motion to lift stay (Doc. 40)
and the parties’ responsive memoranda (Docs. 41, 42).1
I.

BACKGROUND

On September 24, 2018, this Court granted in part and denied in part Defendants
Cincinnati Board of Education, Mary Ronan, Ruthenia Jackson, and Jeffrey McKenzie’s
(collectively, “Defendants”) motion to dismiss. (Doc. 26). The facts of the case, which
are set out in the Amended Complaint (Doc. 27) and were accepted as true for purposes
of the Court’s ruling on the motion to dismiss, see Keys v. Humana, Inc., 684 F.3d 605,
608 (6th Cir. 2012), are set forth in detail in that Order. (Doc. 26 at 1–4).

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Defendant Margaret McLaughlin, also named as a Defendant in the amended complaint, is not
included among the Defendants who oppose the motion to lift stay.
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In the Order, the Court dismissed several of Plaintiffs’ claims and grounds for
relief in the Amended Complaint.2 The Court found that the following claims against the
Defendants Jackson and McKenzie should proceed: substantive due process (statecreated danger) (Count 1), substantive due process (shocks the conscience) (Count 3),
equal protection (Count 4), wrongful death (Count 6), intentional infliction of severe
emotional distress (Count 8), negligent infliction of emotional distress (Count 9), loss of
consortium (Count 10). The Court also allowed Plaintiffs’ claims against Defendants for
spoliation (Count 11) to proceed. Finally, the Court allowed Plaintiffs’ municipal
liability claim against the Board Defendants3 (Count V) to proceed on the three grounds
(custom, inadequate training/supervision, and ratification).
In the Order, the Court found that Defendants Jackson and McKenzie were not
entitled to immunity under the Ohio Political Subdivision Immunity Act because their
alleged acts were, at a minimum, reckless. (Doc. 26 at 23). As of right, the Defendants
Jackson and McKenzie were entitled to appeal this Court’s finding that they were not
entitled to immunity on the state law claims (Counts 6, 8, 9, 10, 11), and they did so on
October 9, 2018. (Doc. 28). Defendants’ motion to dismiss did not raise any qualified
immunity defenses for the constitutional violations alleged in the Amended Complaint.

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The motion to dismiss did not seek to dismiss any claims pertaining to Defendant Margaret
McLaughlin, a nurse at Carson Elementary School. Defendant McLaughlin has already filed an
answer to the Amended Complaint. (Doc. 36).
“Board Defendants” refers collectively to Defendants Cincinnati Board of Education and
Superintendent Mary Ronan.
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Concurrently upon filing their notice of appeal, Defendants also filed a motion for
leave to appeal and motion to stay pending appeal. (Doc. 29). The motion requested that
the Court certify three questions for the Sixth Circuit to address upon interlocutory
appeal: (1) what constitutes an affirmative act to establish a state-created danger claim;
(2) what constitutes conscience-shocking behavior to establish a “shocks the conscience”
claim; and (3) whether an individual can be a member of both the favored and disfavored
classes of an equal protection claim. The Court granted Defendants’ motion for leave to
appeal and stayed “the current action until the Sixth Circuit has ruled on Defendants’
appeal.” (Doc. 38 at 7).
On March 26, 2019, the Sixth Circuit denied Defendants’ petition for interlocutory
review finding that “interlocutory review of the otherwise non-appealable portions of the
September 24 order would not be a constructive use of judicial resources and might not
materially advance the ultimate termination of the litigation.” In re Cincinnati Board of
Education, No. 19-0301, slip op. at 2 (6th Cir. Mar. 26, 2019). The Court of Appeals
noted that Plaintiffs’ constitutional claims “are very fact-dependent, and resolving these
constitutional issues requires further factual development.” Id.
In light of the Sixth Circuit’s rejection of Defendants’ petition to appeal, Plaintiffs
filed the current motion to lift stay, which motion is ripe for review.
II.

STANDARD OF REVIEW

“The power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes in its docket with economy of time and effort for

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itself, for counsel and for litigants, and the entry of such an order ordinarily rests with the
sound discretion of the District Court.” F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611,
626-27 (6th Cir. 2014) (quoting Ohio Envtl. Council v. U.S. Dist. Court, 565 F.2d 393,
396 (6th Cir. 1977)). “How this can best be done calls for the exercise of judgment,
which must weigh competing interests and maintain an even balance.” Landis v. North
Am. Co., 299 U.S. 248, 255 (1936) (citing Kansas City S. Ry. Co. v. United States, 282
U.S. 760, 763 (1931); Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 (1935)).
Courts generally must consider four factors in considering whether to grant a stay
pending appeal: “(1) the likelihood that the party seeking the stay will prevail on the
merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed
absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and
(4) the public interest in granting the stay.” Michigan State A. Philip Randolph Inst. v.
Johnson, 833 F.3d 656, 661 (6th Cir. 2016).
III.

ANALYSIS

Plaintiffs’ motion requests that the Court lift the stay of discovery regarding all
claims against the Board Defendants and Defendant McLaughlin and regarding the
constitutional claims against Defendants Jackson and McKenzie.
As an initial matter, while Defendants argue that a finding by the Sixth Circuit in
the ongoing appeal that Defendants Jackson and McKenzie were not reckless would
dispose of all constitutional claims against all Defendants, this is not accurate. Even if
the Sixth Circuit determined that Defendants Jackson and McKenzie did not act

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recklessly, at most that would eliminate the state-created danger claim and equal
protection claim against Defendants Jackson and McKenzie. The shocks the conscience
claim against Defendants Jackson and McKenzie would remain because recklessness is
not at issue in the analysis of that claim. Therefore, Plaintiffs’ claims against the Board
Defendants would remain based on that claim against Defendants Jackson and McKenzie.
Moreover, Defendants argue that “[t]he Board of Education’s liability is wholly
derivative of Jackson’s and McKenzie’s.” However, this is also inaccurate because
claims against the Board Defendants’ liability also stems from claims against Defendant
McLaughlin, which are going forward. Constitutional claims against all Defendants will
continue no matter the result of the appeal.
Regarding the first factor on whether a stay is appropriate, in initially granting the
stay in this action, the Court emphasized that “Defendants’ likelihood of success on
appeal is speculative[.]” (Doc. 38 at 6). After the Sixth Circuit’s rejection of
Defendants’ petition for appeal, the Court is more convinced that Defendants are unlikely
to succeed on their statutory immunity appeal. Whether Defendants Jackson and
McKenzie acted recklessly is very-fact dependent and the Court finds that the likelihood
that they will prevail on the merits of their appeal is low. Accordingly, the first factor
weighs against a stay.
Second, the Court initially found that the second factor weighed in favor of a stay
because Defendants Jackson and McKenzie, who have raised the issue of statutory
immunity under Ohio Revised Code § 2744.03, would be irreparably harmed by being

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forced to litigate and conduct discovery while their immunity is on appeal. However, as
discussed supra, now that the Sixth Circuit rejected Defendants’ petition for appeal,
Plaintiffs’ shocks the conscience claim against Defendants Jackson and McKenzie will
go forward no matter how their statutory immunity appeal is resolved. Here, Plaintiffs
only seek to lift the stay of discovery on constitutional claims against Defendants Jackson
and McKenzie. Defendants Jackson and McKenzie will not be forced to defend the state
law claims that are actually being appealed. See Knox v. City of Royal Oak, 2007 WL
1775369, at *2 (E.D. Mich. June 20, 2007) (finding that defendants appealing immunity
on two claims would not be prejudiced by proceeding on four claims for which they did
not assert the defense of qualified immunity). Therefore, the second factor weighs
against a stay.
As the Court found in its Order granting a stay, the third factor weighs slightly in
favor of Plaintiffs as a stay will delay litigation. (Doc. 38 at 6). The Court maintains that
position and therefore finds that the third factor weighs against a stay.
In the Court’s Order granting a stay, the Court found that the fourth factor did not
weigh in favor of either party. However, the Court now finds that, because a stay of
discovery related to state law claims against Defendants Jackson and McKenzie will
remain in effect, a stay on the constitutional claims against Defendants Jackson and
McKenzie and all claims against the Board Defendants and Defendant McLaughlin is not
in the public interest. Moreover, because protection of constitutional rights is always in
the public interest, the fourth factor weighs against a stay.

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The Court agrees with the Sixth Circuit’s finding that Plaintiffs’ constitutional
claims “are very fact-dependent, and resolving these constitutional issues requires further
factual development.” In re Cincinnati Board of Education, No. 19-0301, slip op. at 2
(6th Cir. Mar. 26, 2019). Discovery is now necessary to determine the merits of
Plaintiffs’ claims. Accordingly, upon balancing the four factors, the Court finds that
justice requires the lifting of the stay of discovery on all claims against the Board
Defendants and Defendant McLaughlin and on the constitutional claims against
Defendants Jackson and McKenzie.
IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to lift stay (Doc. 40) is GRANTED.
IT IS SO ORDERED.
Date:

5/29/19

Timothy S. Black
United States District Judge

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