Siegler v. The Ohio State University, et al

Filing 90

OPINION AND ORDER: Plaintiff's objections to the Initial Screening and Report and Recommendation 23 are OVERRULED. Plaintiff's motion for service 60 and amended request 61 are MOOT. Plaintiff's motion for service by electronic means upon Sara Nelson 62 is MOOT. Defendants' motion to stay such service 64 is DENIAS AS MOOT. Signed by Magistrate Judge Mark R. Abel on 09/16/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sara E. Siegler,

:
Plaintiff

:

v.

Civil Action 2:11-cv-170

:

The Ohio State University, et al.,
Defendants.

:

Magistrate Judge Abel

:

OPINION AND ORDER
On May 23, 2011, the Magistrate Judge issued an initial screening Report
and Recommendation as to this matter, pursuant to 28 U.S.C. §1915(e)(2). (Doc.
10.) On June 6, 2011, Plaintiff filed objections to this initial screening. (Doc. 23.)
On June 13, 2011, Defendants filed objections as well. (Doc. 27.) Upon the parties’
consent, this case was then referred to the Magistrate Judge for all further
proceedings. (Doc. 42.) Defendants subsequently refiled their objections as a
motion to dismiss. (Doc. 46.)
This matter is before the Court on Plaintiff’s objections to the initial
screening Report and Recommendation. The initial screening summarized
Plaintiff’s allegations in detail. In brief, she was formerly employed by Defendant
The Ohio State University (“OSU”) at its Polaris Innovation Centre (“PIC”), but was
terminated in February 2009. Plaintiff brought eleven claims against thirty-one
named defendants, including OSU, its president, and several former co-workers and
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supervisors. The initial screening recommended that Plaintiff be permitted to
proceed against Defendants Daniel C. Rohrer, Laurie Ann Johnson, Katrina Muska
Duff, and Olga Equivel-Gonzalez on a claim under 42 U.S.C. §1983 for retaliation
for exercise of constitutional rights guaranteed by the First Amendment, and
against Defendant Leona B. Ayers on a claim under 42 U.S.C. §1983 for the
uncompensated taking of intellectual property in violation of the Fifth Amendment
and/or Fourteenth Amendment. It recommended that her complaint be dismissed
with prejudice against Defendants Gee, Barsky, Lewellen, Geiman, Berland,
Shumate, Dillingham, Gibson, Gewirtz, Guttman, Frankel, Augustine, Melton,
King, Nelson, Rosborough, Ramaradjou, OSU Psychiatry, LLC, and Jewell pursuant
to Fed. R. Civ. P. 8(a)(2) for failing to articulate what claims cognizable at law were
asserted against them. It further recommended that Plaintiff’s complaint be
dismissed with prejudice with respect to any claims arising under the Americans
with Disabilities Act, and all claims against Defendant Simendinger, for failure to
state a claim upon which relief can be granted. Finally, it recommended that
Plaintiff’s complaint be dismissed without prejudice against Defendant The Ohio
State University, OSU Police Division, The Ohio State University Office of Legal
Affairs, OSU Medical Center, OSU Department of Pathology, OSU Human
Resources, and State of Ohio Personnel Review Board, for lack of subject matter
jurisdiction due to sovereign immunity under the Eleventh Amendment, and
likewise be dismissed without prejudice with respect to all other defendants for all
claims arising under Ohio common or statutory law for lack of subject matter
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jurisdiction due to sovereign immunity under the Eleventh Amendment.
In her objections, Plaintiff identifies four “assignments of error” upon which
the Court should make a determination different from that in the initial screening.
These are that the complaint (1) provides fair notice of her claims; (2) states ADA
claims; (3) states a claim against Defendant Simendinger; and (4) is not barred by
sovereign immunity because defendants have consented to suit. Further, Siegler
states that she does not object to the recommendation that her claims under §1983
go forward. The Court will address her objections individually.
Failure to provide fair notice of claims. Plaintiff argues that she “has been
trying her best with regard to her lawsuits despite having had no legal education
and/or training” and “made an effort to comply with FRCP 8 given the fact that
Siegler was not privy to much of the information pertaining to her employment at
OSU, the internal OSU investigations and the subsequent termination of Siegler’s
employment.” (Doc. 23 at 38.) Plaintiff’s allegations do not fail to state claims
against various defendants because her complaint lacks sufficient factual detail, or
because there exist facts unknown to her. They fail to state claims because they do
not explain what a given defendant is supposed to have done wrong, aside from
general insinuation that he or she was involved in Plaintiff’s misfortunes or should
have done more to prevent them. The Report and Recommendation set out the
specific reasons why the complaint failed to give the identified defendants fair
notice of the claims against them. See Doc. 10 at 10 (no allegation in complaint that
Gee did anything other than serve as president of university; no allegation that
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Barsky participated in decision to terminate Siegler’s employment or engaged in
any other actionable conduct); 11 (no allegation that Lewellen engaged in any
actionable conduct; no allegation that Gibson and Dillingham did anything other
than provide Siegler with information about how to file whistleblower complaint; no
allegation that Frankel did anything other than receive certain slides questioned by
Siegler; no allegation that Augustine, Melton, King, Nelson, or Rosborough had any
supervisory authority over Siegler; no specific allegations at all about Augustine or
Melton); 12 (allegations that King, Nelson, and Rosborough annoyed Siegler or
treated her disrespectfully do not form the basis of a legally actionable claim; no
allegations in complaint at all about OSU Psychiatry, LLC). A defendant cannot
defend himself against allegations that he was simply involved somehow in harm
done to a plaintiff.
Courts have the power to grant redress only for specifically identifiable
claims created by the Constitution, statute, or common law. A plaintiff need not
wait until after she has obtained all possible information about the matter before
filing suit, and her complaint need not plead with great precision, but it must
explain why the actions of a given defendant match one of these categories of
cognizable harms. Failure to provide such explanation is failure to show “that the
pleader is entitled to relief” or “to state a claim upon which relief can be granted”.
Fed. Rs. Civ. P. 8(a)(2); 12(b)(6).
The Federal Rules of Civil Procedure are accompanied by an appendix of
sample forms. Form 11, for instance, is a complaint for injury suffered in an
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automobile accident. It contains little specific detail about the accident itself.
However, because the law generally recognizes “negligence” as a theory upon which
a plaintiff can recover from a defendant, this complaint would state a claim against
the defendant for negligence. It would give the defendant fair notice that he is
being sued for having harmed the plaintiff by committing the tort of negligence
during some particular incident. Whether the actions of the defendant actually did
amount to negligence, or whether he had some defense that would otherwise
prevent the plaintiff from recovering from him, would of course be matters to be
thereafter decided by a judge or jury. The plaintiff would have, however,
successfully stated a claim against him, permitting the lawsuit to go forward at all.1
In Plaintiff’s complaint, she failed to sufficiently articulate claims against all
but four defendants such that they would have fair notice of what they were being
sued for. The Court accordingly will dismiss these defendants.
Claims under ADA and against Simendinger. Plaintiff identified Kathleen
Simendinger in her complaint as a Special Assistant for Biorepository and
Biospecimen Resource at the Polaris Innovation Centre, who, on one occasion
discussed her surgical history during a telephone call. In the Report and
Recommendation, the Magistrate Judge found that Plaintiff may have attempted to
state a claim against Simendinger under HIPAA for unauthorized disclosure of

Compare Doc. 10 at 15. “The complaint does not identify these defendants
or the defendants who allegedly intentionally inflicted emotional distress. Further,
it does not allege any specific actions by any individual defendant that negligently
inflicted distress on Plaintiff.”
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medical information. However, he found, HIPAA does not provide for any private
right of action to enforce it, but rather provides civil and criminal penalties which
must be enforced by the Department of Health and Human Services.
In her objections, Plaintiff states:
Siegler is aware of cases where individuals have been imprisoned for
HIPAA privacy rules violations, such as that of the cardiothoracic
surgeon from China who was working as a researcher at UCLA who
became the first person to be imprisoned for an unauthorized access to
medical records under the HIPAA privacy rule, a rule which has since
been supplemented by the Health Information Technology for
Economic and Clinical Health, hereinafter “HITECH”, Act.
Settlements have also been announced by companies such as CVS and
Cignet to settle HIPAA privacy rule violation lawsuits. Siegler’s
privacy is also conferred upon her under the Right to Privacy Act of
1974, and Siegler argues that this Court has the authority to hear the
claim regarding the unauthorized access/disclosure/dissemination of
protected health information against Simendinger that violated the
HIPAA privacy rule under the federal Right to Privacy Act of 1974.
While the Ohio common law tort of the invasion of privacy would be
barred by the Eleventh Amendment, this Court has authority to hear
the tort claims brought under the federal Tort Claims Act.
(Doc. 23 at 45-46.) Plaintiff provides no case citation to the case of the
cardiothoracic surgeon, and the Court has been unable to find the case. As described
by Plaintiff, the surgeon was “imprisoned” is consistent with criminal penalties
imposed by government action, rather than private litigation. The Privacy Act of
1974, 5 U.S.C. §552a, bars federal agencies from disclosing personal information
under certain circumstances. Likewise, the Federal Tort Claims Act, 28 U.S.C.
§1346(b), permits private parties to sue the United States of America. However,
Plaintiff has named neither the United States of America nor any of its agencies as
a defendant in this action, and has not brought any claims against them. The Court
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will dismiss all claims against Defendant Simendinger.
Sovereign immunity and the Eleventh Amendment. Plaintiff’s remaining
arguments relate to the Court’s finding that suits against state agencies and their
employees cannot be brought in federal court, because it is deprived of subject
matter jurisdiction under the Eleventh Amendment to the United States
Constitution. She argues specifically that certain defendants consented to be sued,
thus waiving sovereign immunity, or that the Seventh Amendment guarantees her
right to be heard in court by a jury. The Court has recently addressed, and rejected,
these arguments in detail in Plaintiff’s parallel case. See Siegler v. The Ohio State

University, Southern District of Ohio Case No. 2:10-cv-172, Order of August 4, 2011
at 3-6. It will not reiterate those findings here, and will not reconsider its initial
recommendation that certain of Plaintiff’s claims be denied as barred under the
Eleventh Amendment.2
Conclusions. For the reasons set forth herein, Plaintiff’s objections to the
initial screening Report and Recommendation (Doc. 23) are OVERRULED. It is
hereby ORDERED that:
Plaintiff’s Complaint is DISMISSED WITH PREJUDICE, except with
respect to claims arising under the Americans with Disabilities Act as addressed

The Court includes in this determination that Plaintiff’s claims for
monetary relief under the Americans with Disabilities Act against OSU and its
subdivisions and agencies are likewise barred under the Eleventh Amendment. See
Dillon-Barber v. Regents of Univ. of Michigan, 51 Fed.Appx. 946, 949 (6th Cir.
2002).
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below, against Defendants Gee, Barsky, Lewellen, Geiman, Berland, Shumate,
Dillingham, Gibson, Gewirtz, Guttman, Frankel, Augustine, Melton, King, Nelson,
Rosborough, Ramaradjou, OSU Psychiatry, LLC, and Jewell pursuant to Fed. R.
Civ. P. 8(a)(2) for failing to articulate what claims cognizable at law are asserted
against them.
Plaintiff’s Complaint is DISMISSED WITH PREJUDICE with respect to all
claims arising under the Americans with Disabilities Act against all individual
defendants, for failure to state a claim upon which relief can be granted.
Plaintiff’s Complaint is DISMISSED WITH PREJUDICE with respect to all
claims against Defendant Simendinger, for failure to state a claim upon which relief
can be granted.
Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE with respect
to Defendants The Ohio State University, OSU Police Division, The Ohio State
University Office of Legal Affairs, OSU Medical Center, OSU Department of
Pathology, OSU Human Resources, and State of Ohio Personnel Review Board, for
lack of subject matter jurisdiction due to sovereign immunity under the Eleventh
Amendment. Plaintiff’s Complaint is likewise DISMISSED WITHOUT
PREJUDICE with respect to all other defendants, to the extent they are not already
otherwise dismissed above, for Plaintiff’s Ohio common law claims for intentional
infliction of emotional distress, negligent infliction of emotional distress, invasion of
privacy, false light invasion of privacy, and defamation, slander, and libel, as well
as Plaintiff’s Ohio statutory claims for retaliatory harassment, civil rights
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violations, and employment discrimination, for lack of subject matter jurisdiction
due to sovereign immunity under the Eleventh Amendment.
The Clerk of Court is DIRECTED to terminate Doc. 10.
As the four defendants upon whom Plaintiff requests that service be made
have been dismissed from this action, Plaintiff’s motion for service (Doc. 60) and
amended request (Doc. 61) are MOOT. Plaintiff’s motion for service by electronic
means upon Sara Nelson (Doc. 62) is likewise MOOT. Defendants’ motion to stay
such service (Doc. 64) is DENIED AS MOOT.

s/Mark R. Abel
United States Magistrate Judge

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