UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AHMAD SAQR, et al.,

Case No: 1:18-cv-542

Plaintiff, Dlott, J.

v. Bowman, M.J.

THE UNIVERSITY OF CINCINNATI, et al.,

Defendants.

REPORT AND RECOMMENDATION

On August 3, 2018, two brothers, Ahmad Saqr and Omar Saqr, filed suit against 

the University of Cincinnati and the University of Cincinnati College of Medicine 

(collectively “UC”).

1 Pursuant to an Order of the presiding district judge, this case has 

been referred to the undersigned magistrate judge. (Doc. 3).

UC has filed a motion for judgment on the pleadings under Rule 12(c), to which 

Plaintiffs have filed a response and UC has filed a reply. (Docs. 19, 22, 23). The 

undersigned granted Plaintiffs’ request for oral argument. Having heard oral argument 

and having reviewed the parties’ written submissions, the undersigned now recommends 

that UC’s motion be GRANTED as to Plaintiffs’ original complaint.

I. Background

Plaintiffs’ complaint alleges that Defendants violated the Americans with 

Disabilities Act, the Rehabilitation Act, and Title VI as well as related state laws, when 

UC’s Performance and Advancement Committee recommended Plaintiffs’ respective 

 

1Despite being identified as separate Defendants, UC states that the University of Cincinnati College of 

Medicine is not a separate legal entity from the University of Cincinnati. Plaintiffs’ original complaint and 

memorandum in opposition inconsistently refer to UC as both a single “Defendant” and “Defendants.”
2

dismissals from UC’s medical school program and those recommendations were upheld 

by an appeal panel. In lieu of an answer, Defendants filed a motion to dismiss based 

upon a lack of federal jurisdiction and for failure to state a claim. (Doc. 6). On February 

20, 2019, the undersigned recommended that UC’s motion to dismiss be granted on most 

- but not all - claims. (Doc. 11). Specifically, the R&R recommended that:

UC’s motion to dismiss Plaintiffs’ claims in their entirety (Doc. 6) be 

GRANTED ONLY IN PART, with judgment to be entered in favor of 

Defendant(s) UC on Counts I and II (ADA claims except for the portion of 

Count I that seeks injunctive relief), Count III (Rehabilitation Act claims), 

Count IV (state discrimination claim), Count VI (Title VI retaliation claim); 

and Count VII (state breach of contract claim). IT IS FURTHER 

RECOMMENDED THAT judgment be granted to UC and that the motion 

be GRANTED as to the portion of Count V in which Plaintiff Omar asserts 

a Title VI discrimination claim but DENIED as to the portion of Count V that 

sets forth Plaintiff Ahmad’s claim. Thus, proceedings should continue at 

present for Plaintiff Ahmad’s Title VI discrimination claim and for both 

Plaintiffs’ claims for injunctive and declaratory relief under the ADA.

Neither Plaintiff nor UC filed any objections to the R&R, which was adopted as the opinion 

of the Court on March 14, 2019. (Doc. 15). 

On April 15, 2019, Defendants filed a new motion for judgment on the pleadings, 

seeking the dismissal of Plaintiffs’ claims for declaratory and injunctive relief under Title 

II of the Americans with Disabilities Act (“ADA”). (Doc. 19). In response, Plaintiffs argue 

that Defendants “are attempting to revisit” and “relitigate” issues previously decided in the 

R&R; namely, whether or not the doctrine of sovereign immunity applies to bar Plaintiffs’ 

claims for injunctive and declaratory relief against UC. (Doc. 22). 

In addition to their opposition to Defendants’ motion for judgment on the pleadings, 

on September 6, 2019, Plaintiffs filed a motion seeking leave to file a first amended 

complaint. (Doc. 28). Plaintiffs’ motion accurately reflects that this case remains in its 

infancy. The motion further asserts that the “amendments will not substantially change 
3

the nature of the case” and that the proposed amended complaint only seeks to restate 

“the claims that survived Defendant’s Motion to Dismiss.” (Id. at 3). In contrast to that 

assertion, however, a cursory review of the proposed amended complaint reflects the 

addition of two new individual Defendants, Andrew Filak Jr. and Laura Malosh, both of 

whom Plaintiff seeks to add in their official capacities. 

At oral argument, Plaintiffs’ counsel explained that the proposed amendment 

would “moot” the Defendants’ pending motion for judgment, to the extent that the 

undersigned otherwise is inclined to grant that motion. Because the time for filing a 

response in opposition to Plaintiffs’ motion to amend has not yet expired, and oral 

argument on amendment would have been premature, the undersigned merely inquired 

whether Defendants intend to formally oppose the amendment. Defense counsel 

responded affirmatively.

II. Standard of Review Under Rule 12(c)

In the prior R&R, the Court set forth the standard of review applicable to the 

Defendants’ motion to dismiss under Rule 12(b)(6). Defendants’ current motion for 

judgment on the pleadings, filed under Rule 12(c), Fed. R. Civ. P., is subject to the same 

standard of review. EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). 

Accordingly, “we construe the complaint in the light most favorable to the nonmoving 

party, accept the well-pled factual allegations as true, and determine whether the moving 

party is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Illinois 

Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). While such determination rests 

primarily upon the allegations of the complaint, “matters of public record, orders, items 

appearing in the record of the case, and exhibits attached to the complaint, also may be 

taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th 
4

Cir.2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)) (emphasis 

omitted). The court “need not accept the plaintiff’s legal conclusions or unwarranted 

factual inferences as true.” Commercial Money Ctr., 408 F.3d at 336.

III. UC is Entitled to Sovereign Immunity on Plaintiffs’ ADA Claims for 

Injunctive and Declaratory Relief as Stated in the Original Complaint

As discussed below, Plaintiffs oppose Defendants’ motion strictly on procedural 

grounds. Plaintiffs argue that because the Defendants failed to file objections to the 

February 2019 R&R, which was subsequently adopted as the opinion of this Court, the 

Court should not revisit the same issue it already ruled upon....” (Doc. 22 at 2). Permitting 

Defendants to present their argument under Rule 12(c), Plaintiffs assert, is akin to 

allowing Defendants to “end-run Rule 72(b).” (Id. at 3).

Although Plaintiffs urge this Court to apply the doctrine of “issue preclusion,” 

Plaintiffs’ objection to substantive review of Defendants’ motion is more properly viewed 

under the “law of the case” doctrine and/or a “consent to suit” waiver to sovereign 

immunity. Because Plaintiffs’ argument is not persuasive, and Defendants are entitled 

to sovereign immunity, Defendants’ motion should be granted at this time.

A. Neither Issue Preclusion nor the Law of the Case Preclude

Defendants’ Current Jurisdictional Challenge

UC clearly presented the defense of sovereign immunity to Plaintiffs’ ADA claims 

in its initial motion to dismiss under Rule 12(b)(6). (See Doc. 6, asserting “Any claims 

against Defendants under Title II of the ADA are barred by the Eleventh Amendment.”). 

In response, Plaintiffs argued vigorously that UC was not entitled to sovereign immunity 

based upon Plaintiffs’ assertion of a constitutional violation. Alternatively, Plaintiffs 

claimed that the “abrogation of immunity for Title II claims is enforceable in the context of 

claims that do not involve constitutional violations but arise in the context of public 
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education.” (Doc. 9 at 5). A significant portion of the prior R&R closely examined the 

governing law on whether Congress had abrogated sovereign immunity for Plaintiffs’ Title 

II claims. (Doc. 11 at 6-17). Ultimately, under controlling Supreme Court case law as 

well as persuasive law from other jurisdictions, the undersigned concluded that sovereign 

immunity applied to bar Plaintiffs’ ADA claims. Under the traditional formulation of 

Eleventh Amendment sovereign immunity, states are immune from suits for monetary 

damages. Therefore, the Court dismissed Plaintiffs’ ADA claims for monetary damages. 

Although neither Plaintiffs nor UC drew any distinction between the application of 

the sovereign immunity to claims for monetary damages versus claims for prospective

relief, the R&R addressed that distinction sua sponte, noting that in the seminal case of 

Ex parte Young, 209 U.S. 123 (1908), the Supreme Court had held that that the doctrine 

of sovereign immunity does not necessarily bar all such claims.2 In the absence of 

briefing from either party on Ex Parte Young, the undersigned declined to dismiss 

Plaintiffs’ claims for prospective relief:

Although sovereign immunity bars Plaintiffs’ claims for monetary damages 

under the ADA, that same immunity does not bar Plaintiffs’ claim for 

injunctive relief in the form of reinstatement to UC’s College of Medicine. 

See generally Ex parte Young, 209 U.S. 123 (1908); McCulley, 2013 WL 

1501994 at *4-5 (holding under Ex parte Young that immunity did not bar 

medical student’s claim for injunctive relief). Accordingly, the undersigned 

recommends that UC’s motion to dismiss claims for declaratory and 

injunctive relief be denied.

(Doc. 11 at 30). 

 

2

In Plaintiffs’ response in opposition to the Defendants’ motion, Plaintiffs argued in a conclusory fashion 

(without citation to authority) that their claims for injunctive relief should not be dismissed. (See Doc. 9 at 

14 opposing dismissal of “state law claims and claims for injunctive and declaratory relief” because 

Defendants’ “arguments are premised on the erroneous conclusion that Plaintiffs’ ADA, Rehabilitation Act 

and Title VI claims are subject to dismissal”). Although UC did not address Ex parte Young, UC’s motion 

relied heavily upon McCulley v. University of Kansas School of Medicine, 2013 WL 1501994 (D. Kansas 

April 10, 2013). Notably, the McCulley court declined to dismiss a plaintiff’s claims for injunctive relief in 

the form of reinstatement to medical school, citing Ex parte Young. 
6

As stated, neither UC nor Plaintiffs filed objections to the R&R, which was adopted 

for the opinion of the Court. Ordinarily, a failure to file specific objections to a Report and 

Recommendation may result in a waiver or forfeiture of a party’s right to object to the R&R 

in a subsequent appeal to the Sixth Circuit. See Thomas v. Arn, 474 U.S. 140 (1985); 

United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Seeking to expand the Sixth 

Circuit’s forfeiture rule, Plaintiffs now argue that the failure of UC to file objections bars 

UC from raising the issue anew to this Court, under the doctrine of issue preclusion. It 

does not. Issue preclusion has no application here, because there has been no final 

disposition of this case. 

Even if Plaintiffs’ argument is construed as raising principles of the “law of the 

case,”

3

that doctrine “merely expresses the practice of courts generally to refuse to reopen 

what has been decided, not a limit on their power.” Christianson v. Colt Indus. Operating 

Corp., 486 U.S. 800, 817, 108 S. Ct. 2166, 2170 (1988) (internal quotation marks and 

citation omitted). This court retains the power to revisit any prior decision, and finds it 

particularly appropriate to do so on the record presented, where the decision concerns 

the scope of the Defendants’ clearly asserted sovereign immunity and this Court’s subject 

matter jurisdiction. 

B. UC Has Not Waived Sovereign Immunity

The assertion of sovereign immunity directly impacts this Court’s jurisdiction. See 

Puckett v. Lexington–Fayette Urban County Government, 833 F.3d 590, 598 (6th Cir.

2016). However, there are three exceptions to sovereign immunity under which a federal 

court may exercise jurisdiction over a claim asserted against a state: 

(1) when the state has consented to suit; (2) when the exception set forth 

 

3 Plaintiffs’ counsel advocated for the application of this doctrine at oral argument.
7

in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) applies; 

and (3) when Congress has clearly and expressly abrogated the state’s 

immunity. S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008) 

(citation omitted).

Puckett, 833 F.3d at 598. Defendants’ prior Rule 12(b)(6) motion and Plaintiffs’ response

both focused almost exclusively on the third exception - whether Congress had expressly 

abrogated states’ sovereign immunity as to the ADA claims asserted by Plaintiffs. Not 

surprisingly, the prior R&R reflects that same focus. 

This Court raised the Ex parte Young (second) exception to the application of 

sovereign immunity sua sponte, in a manner that was intended to be consistent with the

Court’s continuing obligation to examine its own jurisdiction. The undersigned assumed 

the application of the doctrine without benefit of briefing, and with the presumption that 

courts should be loathe to grant motions to dismiss on issues that have not been squarely 

presented. In hindsight, and with the benefit of UC’s newly briefed Rule 12(c) motion that 

does squarely address this issue, the undersigned concludes that the Ex parte Young

exception does not apply and does not save Plaintiffs’ claims for prospective relief. 

The prior R&R cited McCulley, a Kansas district court case, for its holding that a 

medical student’s claim for injunctive relief was not barred under Ex parte Young. In its 

Rule 12(c) motion, UC points to a critical distinction between that case and this one; 

namely, that in McCulley, the medical student had filed his claims against the school of 

medicine’s Acting Dean. By contrast, Plaintiffs’ original complaint does not name any 

individuals or officials as Defendants, but seeks relief exclusively against UC. Whereas 

Ex parte Young provides an exception to sovereign immunity when a party is seeking 

prospective relief against a state official, the exception “has no application in suits against 

States and their agencies, which are barred regardless of the relief sought.” Puerto Rico 
8

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). Therefore, 

this Court lacks jurisdiction over Plaintiffs’ original claims for injunctive and declaratory 

relief against UC under the Eleventh Amendment.

Plaintiffs’ primary opposition rests on their position that UC should not be permitted 

to raise the Ex parte Young issue at this time. Plaintiff maintains “there is nothing 

new...that was not addressed in Magistrate Judge Bowman’s Report and 

Recommendation,” and reiterates that UC “chose not to file written objections” to the prior 

R&R. (Doc. 22 at 3). For the reasons stated, the undersigned finds no procedural bar to 

the ability of UC to present this jurisdictional issue in a new Rule 12(c) motion. At the 

same time, the undersigned recognizes that Plaintiffs’ argument theoretically could be 

construed as claiming that UC has “consented” to Plaintiffs’ claims for prospective relief 

through its conduct, implicating the first exception to the bar of sovereign immunity. In 

other words, Plaintiffs might be attempting to argue that UC’s conduct in this litigation 

waived its immunity. Even if Plaintiffs’ argument were so construed, however, it would 

fail to persuade under controlling legal authority. See generally Boler v. Earley, 865 F.3d 

391 (6th Cir. 2017) (holding that state defendants’ litigation conduct did not rise to the 

level of a waiver of Eleventh Amendment immunity).

C. The Impact of the Proposed Amended Complaint

On September 6, 2019, Plaintiffs moved for leave to amend their complaint to 

clarify that they are suing only a single entity “the University of Cincinnati” while 

simultaneously adding two UC officials as new individual Defendants. The proposed 

amended complaint identifies the individuals only by name, not by title, and does not 

allege any specific actions that the individuals took against either of the Plaintiffs other 

than alleging that they are “agents and decision makers of UC’s medical school.” (Doc. 
9

28-1 at ¶6). It is not entirely clear whether the newly proposed individual Defendants 

would, or would not, have authority to grant the prospective injunctive relief that Plaintiffs 

seek. 

Rather than speculate about whether Plaintiffs’ proposed amendment would 

“moot” the otherwise fully-ripe motion for judgment on the pleadings, the undersigned 

recommends granting Defendants’ motion for judgment at this time, but without prejudice 

to Plaintiffs’ ability to file a new motion for leave to amend, or alternatively to rest on their 

existing motion. In the interests of judicial economy, a separate Order will be entered this 

same day that will permit Plaintiffs additional time in which they may either withdraw the 

current motion and re-file a new motion for leave to amend in light of this R&R, or 

alternatively, state their intention to continue briefing on their current motion.

IV. Conclusion and Recommendations 

In conclusion, IT IS RECOMMENDED THAT UC’s motion for judgment on the 

pleadings on Plaintiffs’ remaining ADA claims for injunctive and declaratory relief as 

stated in the original complaint (Doc. 19) be GRANTED, leaving only a single claim by 

Plaintiff Ahmad’s alleging Title VI discrimination. However, this recommendation is 

without prejudice to the reinstatement of any appropriate claim for injunctive relief should 

Plaintiffs subsequently be granted leave to file an amended complaint.

s/ Stephanie K. Bowman 

Stephanie K. Bowman

United States Magistrate Judge
10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AHMAD SAQR, et al.,

Case No: 1:18-cv-542

Plaintiff, Dlott, J.

v. Bowman, M.J.

THE UNIVERSITY OF CINCINNATI, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).