Winkle v. Ruggieri et al

Filing 50

REPORT AND RECOMMENDATIONS re 40 Second Amended Complaint: The Magistrate Judge RECOMMENDS that Plaintiff's claims against the National Council for Accrediation of Teacher Education, Ohio University, the Attorney General's Office and Todd Marti be DISMISSED. It is further RECOMMENDED that Plaintiff's claims against the individual University employees in their official capacities be DISMISSED. It is also RECOMMENDED that Plaintiff's state-law claims against the individual University employees in their individual capacities be DISMISSED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/22/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK R. WINKLE,
Plaintiff,
Civil Action 2:12-cv-1079
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

COLLEEN RUGGIERI, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff, an Ohio resident who proceeds without the assistance of counsel, brings this
action against numerous Defendants asserting claims under 42 U.S.C. § 1983 as well as Ohio
law. This matter is before the Court for the initial screen of Plaintiff’s Second Amended
Complaint as required by 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the
reasons that follow, it is RECOMMENDED that Plaintiff’s claims against the National Council
for Accreditation of Teacher Education, Ohio University, the Ohio Attorney General’s Office
and Todd Marti be DISMISSED. It is further RECOMMENDED that Plaintiff’s claims against
the individual University employees in their official capacities be DISMISSED. It is also
RECOMMENDED that Plaintiff’s state-law claims against the individual University employees
in their individual capacities be DISMISSED. At this juncture, Plaintiff may proceed with his §
1983 claims against the University employees in their individual capacities.
I.
Plaintiff alleges that he is a former student in the Gladys W. and David H. Patton College
of Education of the Ohio University (“College of Education”). (2nd Am. Compl. ¶ 33, ECF No.

40.) At some point Plaintiff was removed from the education program for alleged violations of
the core value and disposition standards. Id. Plaintiff purports to assert various claims against
numerous Ohio University employees, as well as the University, the College of Education, and
others in connection with the removal.
Discrimination, Retaliation and Hostile Work Environment
Plaintiff alleges that a number of the Ohio University employees discriminated and
retaliated against him and caused a hostile learning environment. According to Plaintiff,
Defendant Ruggieri created a hostile learning environment and harassed Plaintiff on the basis of
his gender and age in front of other students and outside of class. (2nd Am. Compl. ¶ 2, ECF
No. 40.) Plaintiff contends that Defendant Ruggieri bullied and humiliated him by demanding
that he drop her class and change majors. Id. at ¶¶ 4, 5. According to Plaintiff, Defendant
Ruggieri also gave him a low grade and filed false charges against him with the Ohio University
Police in retaliation for Plaintiff filing discrimination charges against her. Id. at ¶ 4. Plaintiff
further alleges that Defendant Ruggieri committed libel and slander when she made false
allegations and charges against him to the Patton College of Educational Credential Review
Board (“Review Board”) and to his classmates.
Plaintiff alleges that many of the other Defendants also filed false charges against him or
discriminated against him on the basis of his age and gender. According to Plaintiff, Defendants
Rice and Dutton filed false charges against him on the basis of his age and gender. Id. at ¶¶ 6-7,
10-11. Defendants Giese, Coon, Paulins and Henning also allegedly discriminated against
Plaintiff on the basis of his age and gender. Id. at ¶¶ 15-17, 20-21, 23-24, 26-27. Plaintiff
alleges that Defendants Dewald and Scanlan sent him harassing and threatening e-mails. Id. at

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¶¶ 13, 29.
Plaintiff contends that Defendant Dutton filed charges against him in retaliation for
complaints he filed against Loreen Giese. According to Plaintiff, Defendants Dewald and
Scanlan retaliated against him on three separate occasions for filing complaints against
instructors at Ohio University. (2nd Am. Compl. ¶¶ 13, 29, ECF No. 40.) Plaintiff also alleges
that Giese and Coon retaliated against him for filing charges against Giese, Jennifer Warner and
Floyd Doney. Id. ¶¶ 19-21.
Plaintiff makes the conclusory allegations that many of the Defendants violated his First
Amendment right to free speech. According to Plaintiff, Defendants Rice, Dewald, Scanlan,
Henning and Dutton violated his First Amendment right to free speech on an ongoing basis since
October 17, 2012. Id. at ¶¶ 8, 12, 14, 28, 29. Plaintiff also alleges that Defendants Giese, Coon,
and Paulins and have violated his First Amendment right to free speech on an ongoing basis
since June, July, and October 2011. Id. at ¶¶ 18, 22, 25.
According to Plaintiff, the actions described above have created a hostile learning
environment.
Failure to Investigate, Remove or Supervise
Plaintiff alleges that Defendant Baiye has repeatedly failed to conduct investigations into
the alleged civil rights violations that Defendants Giese and Dewald committed. (2nd Am.
Compl. ¶ 31, ECF No. 40.) According to Plaintiff, Baiye has also failed to instruct Defendants
Giese and Dewald to refrain from contacting or retaliating against him.
Plaintiff contends that the National Council for the Accreditation of Teacher Education
(“NCATE”) negligently failed to remove from its accredited institutions the authority to

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discriminate against students based on core values and other violations of students’ First
Amendment right to free speech. Id. at ¶ 33. Plaintiff further alleges that NCATE has aided and
abetted the College of Education in its violations of his First Amendment rights. Specifically,
Plaintiff contends that the College of Education violated his rights when it removed him for
alleged violations of the college disposition standards. Id.
Plaintiff’s Removal from the College of Education
Plaintiff alleges that Defendant College of Education violated his First Amendment rights
through the use of its “Core Values and Disposition Standards.” (2nd Am. Compl. ¶ 35, ECF
No. 40.) Plaintiff further alleges that the College of Education removed him from its education
program and from classes that he had already scheduled for the winter 2013 semester. Id. In
addition to the constitutional challenge, Plaintiff purports to assert a breach of contract claim.
Plaintiff alleges that the Review Board violated his First, Fourth, and Fourteenth
Amendment rights when it removed Plaintiff from the College of Education without having the
authority to do so. Id. at ¶ 35(a). Plaintiff also alleges that the Review Board violated his rights
in failing to have an unbiased hearing panel or decision maker order a suspension, which
Plaintiff contends is required under the due process clause for any suspension over ten days.
Plaintiff also alleges that Renee Middleton directed the College of Education staff to
remove him from the College of Education and cancel his classes. Id. at ¶ 37. Defendant
Middleton also allegedly violated Plaintiff’s constitutional rights when she denied his appeal to
the Review Board in retaliation for his complaints of discrimination. Id. at ¶ 39.
Alleged Conspiracy
Plaintiff alleges that the Defendants named in his Complaint conspired to violate his

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constitutional right to due process. (2nd Am. Compl. ¶ 32, ECF No. 40.) According to Plaintiff,
Defendants conspired to deprive him of his rights by violating the “Code of Ethics Student
Concern” procedures of the Ohio University Code of Ethics, performing their duties negligently,
or retaliating against Plaintiff.
Actions of the Ohio Attorney General’s Office and Todd Marti
Plaintiff alleges that Assistant Attorney General Todd Marti sent an e-mail to his coworkers and Ohio University staff which contained statements that constitute libel, slander and
defamation. (2nd Am. Compl. ¶ 41, ECF No. 40.) Plaintiff also alleges that the Ohio Attorney
General’s office failed to supervise Defendant Marti and his superiors. Id. at ¶ 42.
Finally, Plaintiff alleges that as a result of the events outlined above he has suffered
emotional distress, humiliation and damage to his reputation. He also alleges that he has
suffered ridicule, hatred and contempt. Plaintiff seeks monetary relief and punitive damages, as
well as a declaration that the college’s “Core Values and Disposition Standards” and Student
Code of Ethics violate students’ First Amendment rights.
II.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

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Formerly 28 U.S.C. § 1915(d).
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statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted. See
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Federal Rule of Civil Procedure 8(a)(2),
a complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although this pleading standard does not require
“‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Further, a complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss
for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a
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complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
In considering whether this facial plausibility standard is met, a Court must construe the
complaint in the light most favorable to the non-moving party, accept all factual allegations as
true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations
omitted). The Court is not required, however, to accept as true mere legal conclusions
unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). In
addition, the Court holds pro se complaints “‘to less stringent standards than formal pleadings
drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978, 2010 WL 1252923,
at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
III.
A.

Plaintiff’s Purported Claims Against NCATE
The Undersigned recommends dismissal of Plaintiff’s claims against NCATE. It is not

clear what Plaintiff purports NCATE has done that would subject it to liability. The entirety of
Plaintiff’s allegations against this Defendant consists of the following:
It is alleged that the National Council for the Accreditation of Teacher Education aka
“NCATE” by its’ [sic] negligence and its’ [sic] failure to remove the authority of its
accreditated [sic] institutions’ [sic] to discriminate against teacher education students
based on their core values and dispositions, and other means of violating teacher
education student’s First Amendment Rights of Free Speech have aided and abetted
the Gladys W. and David H. Patton College of Education’s [sic] in their violations
of the plaintiff’s First Amendment Rights. Plaintiff’s rights were violated by
removing him from the Gladys W. and David H. Patton College of Education as a
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result of his alleged violations of that college’s “disposition standards.”
(2nd Am. Compl. ¶ 33, ECF No. 40.) This language suggests that Plaintiff seeks to hold
NCATE liable for not removing the college officials who allegedly discriminated and retaliated
against him from Ohio University. Plaintiff has failed to allege any relationship between
NCATE and Ohio University that would render it liable in this regard. This omission is just one
reason that Plaintiff’s purported claim against NCATE fails.
To the extent Plaintiff asserts that NCATE aided and abetted, or conspired to violate his
First Amendment right, he has failed to allege facts sufficient to state such a claim. To prevail
on a civil conspiracy claim under § 1983, a plaintiff must show that the conspirator-defendants
(1) engaged in a “single plan”; (2) “shared in the general conspiratorial objective” to deprive the
plaintiff of his constitutional rights, and (3) committed “an overt act . . . in furtherance of the
conspiracy that caused injury” to the plaintiff. Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th
Cir. 2011). “‘Express agreement among all the conspirators is not necessary to find the
existence of a civil conspiracy.’” Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003)
(citing Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985)). Moreover, “[e]ach conspirator need
not have known all of the details of the illegal plan or all of the participants involved.” Id.
(quoting Hooks, 771 F.2d at 944).
Here, Plaintiff has failed to allege any facts that would indicate that NCATE (or any
other Defendant) engaged in a plan to violate his constitutional rights, shared a general
conspiratorial objective with other Defendants, or committed an overt act in furtherance of a
conspiracy. Plaintiff merely alleges, in a conclusory fashion, that “the defendants herein named
have conspired to violate the plaintiff’s rights of Due Process under the 5th and/or 14th

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Amendments of the United States Constitution . . . .” (2nd Am. Compl. ¶ 32.) Such “naked
assertion[s] devoid of further factual enhancement” fail to meet the basic pleading standard
under Twombly. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation
marks omitted). Plaintiff has thus failed to state a civil conspiracy claim under § 1983.

Moreover, to the extent Plaintiff purports to assert a First Amendment retaliation claim
against NCATE, he has failed to do so. To succeed on a § 1983 claim in violation of the First
Amendment, a plaintiff must establish the following elements: (1) the plaintiff was “engaged in a
constitutionally protected activity”; (2) that the “defendant’s adverse action caused the plaintiff
to suffer an injury that would likely chill a person of ordinary firmness from continuing to
engage in that activity”; and (3) that the “adverse action was motivated at least in part as a
response to the exercise of plaintiff’s constitutional rights.” Charvat v. E. Ohio Reg’l
Wastewater Auth., 246 F.3d 607, 616 (6th Cir. 2001) (citing Bloch v. Ribar, 156 F.3d 673, 678
(6th Cir. 1998)).
Here, Plaintiff has failed to allege sufficient facts to establish even one of the three
requisite elements of a First Amendment retaliation claim, much less all of them. He has not
alleged with any specificity that he engaged in protected activity; that NCATE took adverse
action against him that would chill such activity; or that NCATE’s alleged action was a response
to the exercise of his constitutional rights. Charvat, 246 F.3d at 616. Plaintiff’s purported
retaliation claim against NCATE thus fails.
Finally, Plaintiff’s purported claims against NCATE also fail because he does not allege
facts that would satisfy the elements necessary in any § 1983 claim. To plead a cause of action

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under 42 U.S.C. § 1983, a Plaintiff must plead two elements: (1) a person acting under color of
state law caused deprivation of a right that is (2) secured by the Constitution or laws of the
United States. Hunt v. Sycamore Cmty. School Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir.
2008). To sufficiently plead the first element, a plaintiff must allege “personal involvement” on
the part of the defendant. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted).
This requirement arises because Ҥ 1983 liability cannot be imposed under a theory of
respondeat superior.” Id. (citation omitted). “A supervisor is not liable under § 1983 for failing
to train unless the supervisor either encouraged the specific incident of misconduct or in some
other way directly participated in it.” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009)
(internal quotation omitted). Put another way, to hold a supervisor liable under § 1983, a
plaintiff “must show that the official at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct . . . .” Id.
Here, Plaintiff has failed to allege both that NCATE acted under color of state law and
that it exercised personal involvement in the alleged violation of his constitutional rights. The
Court takes judicial notice of the fact that NCATE is a non-governmental, national accrediting
body for schools, colleges, and departments of education.2 Thus, absent some unusual fact that
Plaintiff has failed to allege, NCATE presumably would not act under color of state law, which

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The Court takes judicial notice of NCATE’s status pursuant to Federal Rule of Evidence
201. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”); see also Landt v. Farley, 2012 WL 4473209, *1
(N.D. Ohio Sept. 26, 2012) (noting that the “court may take judicial notice of matters of public
record, including duly recorded documents, and court records available to the public through the
PACER system and via the internet.”) (quotation marks and citation omitted). Reference to
NCATE’s public website demonstrates that it is a non-governmental accrediting body.
http://www.ncate.org/Public/AboutNCATE/FAQAboutNCATE/tabid/410/Default.aspx#ncate.
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is required for § 1983 liability to attach. Hunt, 542 at 534. Nor is NCATE a person capable of
“personal involvement,” which is also required for a cognizable § 1983 claim. Id.
Accordingly, Plaintiff has failed to state a cognizable § 1983 claim against NCATE. It is,
therefore, RECOMMENDED that Plaintiff’s claims against NCATE be DISMISSED for
failure to state a claim upon which relief can be granted.
B.

Plaintiff’s Purported Claims Against Ohio University, the College of Education, and
Ohio University Employees
The Court concludes that Plaintiff’s remaining claims are best resolved through the

litigation process rather than on an initial screen under 28 U.S.C. § 1915(e)(2). Defendants have
filed a Motion to Dismiss in which they raise numerous challenges to Plaintiff’s remaining
claims. The Court’s determination that Plaintiff’s remaining claims are better addressed through
Defendants’ Motion to Dismiss in no way reflects on the merits of Plaintiff’s claims or
Defendants’ challenges to those claims. The Court will rule on Defendants’ Motion to Dismiss
as soon as practicable.
IV.
Accordingly, it is RECOMMENDED that Plaintiff’s claims against NCATE be
DISMISSED for failure to state a claim. At this juncture, Plaintiff may proceed with his
remaining claims.
V.
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
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Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.
Date: March 21, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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