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). Presently pending is 

Plaintiffs’ motion for leave to file an amended complaint. For the reasons that follow, the 

undersigned recommends the denial of that motion.

I. Background 

On February 20, 2019, the undersigned recommended that UC’s motion for 

judgment on the pleadings be granted in part as to multiple claims presented in Plaintiffs’ 

original complaint. (Doc. 11; see also Doc. 15, adopting R&R on March 14, 2019). Soon 

thereafter, UC filed a second motion for judgment on the pleadings, seeking the dismissal 

of additional Americans with Disability Act (“ADA”) claims on grounds of sovereign 

 

1Despite being identified as separate Defendants in Plaintiffs’ original complaint, the University of Cincinnati 

College of Medicine is not a separate legal entity from the University of Cincinnati. Plaintiffs’ tendered 

amended complaint corrects the error to identify UC as a single entity Defendant.
2

immunity. After allowing oral argument,2the undersigned recommended granting that 

motion. (Docs. 19, 30). Days before oral argument was scheduled, however, Plaintiffs 

moved for leave to file an amended complaint. (Doc. 28). At oral argument, UC stated its 

intention to file a memorandum in opposition to the proposed amendment.

For reasons of judicial economy, the undersigned filed the R&R recommending 

dismissal of the ADA claims as stated in the original complaint without prejudice to 

Plaintiffs’ ability to reinstate those claims if later granted leave to amend. At the same 

time, the Court entered an Order that permitted (but did not require) Plaintiffs to withdraw 

and/or refile their then-recently-filed motion for leave to file an amended complaint, so 

that Plaintiffs could fully consider and incorporate the recommended ruling if desired. An 

accompanying Order set a deadline of September 30, 2019 by which Plaintiffs were 

required to withdraw their pending motion to amend and re-file any new motion with a 

new first amended complaint. The Court explained that if Plaintiffs instead elected to rest 

on their existing motion for leave to file a first amended complaint, the undersigned would 

review the tendered complaint following the completion of expedited briefing. 

After receipt of the September 23 R&R and Order, Plaintiffs chose to rest on their 

existing motion for leave to file an amended complaint. UC filed a response in opposition 

to that motion, to which Plaintiffs filed a reply on October 11, 2019. Based upon new 

matters presented by Plaintiffs in their reply, UC was granted leave to file a sur-reply.

Plaintiffs’ original complaint alleged 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 

 

2 Plaintiffs’ request for argument was granted in accordance with the undersigned’s standard practice of 

permitting newer attorneys the opportunity to argue any motion upon request.
3

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

by an appeal panel. As stated, in two prior R&Rs, the undersigned recommended 

granting two motions to dismiss various claims filed by Plaintiffs. The first of those R&Rs 

has been adopted by the presiding district judge, but the second R&R remains pending.

In the February 2019 R&R adopted by the Court, the undersigned recommended 

the dismissal of Plaintiffs’ ADA claims Counts I and II (all ADA claims except for the 

portion of Count I that sought 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), as well as the dismissal of “the portion of Count V in which 

Plaintiff Omar [Saqr] asserts a Title VI discrimination claim.” Thus, after the first R&R was 

adopted, the only remaining claims were Plaintiff Ahmad’s Title VI discrimination claim 

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

However, in the second R&R filed on September 23, 2019, the undersigned further 

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

Title II of the Americans with Disabilities Act based upon UC’s assertion of sovereign 

immunity. (Doc. 30). The more recent R&R noted that the recommended dismissal of all 

other claims left “only a single claim ...alleging Title VI discrimination” by Plaintiff Ahmed 

Saqur. However, the R&R expressly stated that “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.” (Id. at 9).

II. Analysis

A. Plaintiffs’ September 6, 2019 Tendered First Amended Complaint

Plaintiffs’ September 6 motion seeking leave to file a first amended complaint 

asserts that their “amendments will not substantially change the nature of the case” and 
4

that their proposed amended complaint only seeks to restate “the claims that survived 

Defendant’s Motion to Dismiss.” (Id. at 3). Contrary 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. Also in contrast to Plaintiffs’ representation that they seek only 

to restate the claims that survived dismissal, the tendered amended complaint attempts 

to re-state several previously dismissed claims.

Plaintiffs’ motion to amend their complaint was filed after UC’s second motion for 

judgment had been fully briefed, just days before oral argument on that motion. The 

proposed addition of the two individual Defendants appears to have been intended to 

address the deficiency on which UC’s motion was based: UC’s entitlement to sovereign 

immunity on all ADA claims and the failure of the original complaint to name any individual 

Defendants. As the undersigned explained in the September 23 R&R that recommended

granting UC’s motion and dismissing Plaintiffs’ ADA claims for injunctive relief: “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.’” (Doc. 30 at 

7-8, quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 

146 (1993)). 

Because Plaintiffs’ motion for leave to file an amended complaint was not yet ripe 

at the time the September 23 R&R was filed, the R&R did not fully address whether the 

proposed amended complaint cured the deficiency. The undersigned recognized that 

Plaintiffs proposed to add two individual Defendants. However, the undersigned pointed 

out that the tendered amended complaint added little more than two individuals names:
5

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. 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.

(Doc. 30 at 8-9). 

The Court entered an Order to the same effect, allowing but not requiring Plaintiffs 

additional time, up through September 30, 2019, in which to withdraw their pending 

motion seeking leave to amend their complaint and re-file a new motion seeking leave to 

amend, which would allow Plaintiffs to tender a new version of a First Amended Complaint 

that could address the shortcomings identified in the R&R. Alternatively, the Court 

directed the parties to expedite their briefing on the pending motion. Plaintiffs chose to 

rest on their September 6 motion. 

B. Plaintiffs’ October 11, 2019 “Amended” Tendered First 

Amended Complaint Should be Stricken or Disregarded

Although Plaintiffs complied with the Court’s expedited deadline for filing a reply 

memorandum in support of their motion to amend, their reply was not limited in scope to 

the Defendants’ response in opposition to the amendment. Instead, Plaintiffs’ reply 

presented an entirely new argument – along with a “new and improved” version of their 

first amended complaint. 
6

The October 11 amendment to the previously tendered amended complaint is 

procedurally improper. Plaintiffs did not withdraw their prior motion seeking leave to file 

the September 6 version of an amended complaint, and no new motion seeking leave to 

amend accompanies the pleading appended as an exhibit to Plaintiffs’ reply 

memorandum. By way of explanation, the reply states: “To ensure Defendants clearly 

understand the claims Plaintiffs want to pursue, as well as the reasoning behind naming 

the official capacity Defendants, Plaintiffs have amended the Proposed Amended 

Complaint and attached it to this Reply.” (Doc. 35 at 2). Based upon this newly tendered 

“amendment” to the previously tendered amended complaint, Defendants were granted 

leave to file a sur-reply. 

This Court’s prior Order was very clear in directing Plaintiffs to either stand by their 

existing motion and tendered amended complaint, or to withdraw that motion and re-file 

a new motion seeking leave to amend (along with a new amended complaint) not later 

than September 30, 2019. Plaintiffs’ disregard of the Court’s Order in the guise of a reply 

memorandum cannot be sanctioned. The new “amendment” to the previously tendered 

first amended complaint is beyond the scheduled deadline for amendment as well as

procedurally improper. In a sur-reply, UC requests that the improperly tendered pleading 

be stricken from Plaintiffs’ reply memorandum. (Doc. 37 at 3). Although the undersigned 

declines to formally strike the improper pleading, the undersigned agrees that the

pleading should not be considered. If any reviewing court disagrees, the undersigned 

alternatively would recommend the denial of the latest proposed amendment. 

C. Plaintiff’s September Proposed Amendment Would be Futile

Rule 15(a)(2), Fed. R. Civ. P., provides that a court should “freely give leave” to 

amend pleadings “when justice so requires.” However, the denial of leave to amend is 
7

appropriate in instances of “undue delay, bad faith or dilatory motive on the part of the 

movant, repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance of the amendment, futility of 

amendment, etc.’” Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 

505, 520 (6th Cir. 2010) (quoting Foman v. Davis,371 U.S. 178, 182 (1962)). Defendant 

opposes the motion to amend on grounds of futility. A motion to amend a complaint 

should be denied as futile when the complaint as amended would not survive a motion to 

dismiss. See Brown v. Owens Corning Inv. Review Comm., 622 F.3d 564, 574 (6th Cir. 

2010). The undersigned agrees that leave to amend should be denied in this instance. 

First, amendment should be denied because the tendered amended complaint fails 

to eliminate claims that previously were dismissed by this Court. On March 14, 2019, the 

Court adopted the undersigned’s first R&R and dismissed Plaintiffs’ state law, ADA 

retaliation, Title VI retaliation, and Rehabilitation Act claims, as well as Plaintiff Omar 

Saqr’s Title VI discrimination claim. (Doc. 15). The only claims that survived dismissal 

were (1) Plaintiff Ahmad Saqr’s Title VI discrimination claim; and (2) both Plaintiffs’ ADA 

claims for injunctive and declaratory relief. However, in the tendered amended complaint, 

Plaintiffs inexplicably restate many of the dismissed claims, without adding any new 

allegations to suggest new factual or legal grounds to support those claims. (See, e.g., 

¶¶ 1, 8, 70-75, realleging Rehabilitation Act and state law claims, as well as ADA 

retaliation claim; see also Doc. 28-1 at 9, Count III, realleging Title VI discrimination “Only 

as to Plaintiff Omar Saqr” despite the prior dismissal of the same Plaintiff’s discrimination 

claim). After the Court’s adoption of the first R&R, on September 23, 2019, the 

undersigned filed a second R&R that recommended the additional dismissal of both 

Plaintiffs’ ADA claims for injunctive and declaratory relief. (Doc. 30). In other words, the 
8

undersigned has now recommended the dismissal of all claims other than Plaintiff 

Ahmed’s Title VI discrimination claim – a single claim that is mysteriously absent from the 

face of the tendered amended complaint.3

The second basis for denial of the Plaintiffs’ motion to amend is that the proposed 

addition of the two new individuals’ names, without any supporting factual allegations, is 

insufficient to save Plaintiffs’ ADA claims for injunctive or declaratory relief under the Ex 

Parte Young doctrine. In the September 23, 2019 R&R, the undersigned recommended 

the dismissal of Plaintiffs’ ADA claims for injunctive or declaratory relief based upon UC’s 

sovereign immunity. The referenced R&R explained that Plaintiffs’ claims were not saved 

by the Ex Parte Young doctrine because Plaintiffs had not named any individual 

Defendants who could provide them the relief that they requested (including 

reinstatement to the medical school).

The tendered amended complaint contains nearly identical allegations to Plaintiffs’ 

original complaint, with the sole change to the identity of the singular “Defendant” now 

alleged to be “the University of Cincinnati, Andrew Filak Jr., and Laura Malosh 

(collectively, ‘Defendant’)” (Doc. 28-1 at 2). In their original complaint, Plaintiffs referred 

to two separate UC entities as a collectively singular “Defendant.” Aside from that cursory 

change and inclusion of the individuals in the defined singular use of “Defendant” 

throughout the complaint, the only other reference to Filak and Malosh occurs in 

paragraph 6 of the tendered Amended Complaint, which reads in its entirety:

 

3 Some of the paragraphs underneath a caption identifying the single Title VI claim as that of “Omar” Saqr

continue to refer to Ahmad Saqr, which suggests (despite some ambiguity) that the reference to Omar in 

the caption may have been a clerical error and that Plaintiff Ahmad Saqr did not intend to withdraw his only 

remaining viable claim. (See Doc. 34 at 4, n.2, noting Defendant’s confusion as to whether Plaintiff Ahmad 

Saqr has abandoned his only remaining claim).
9

6. Defendants Andrew Filak Jr. and Laura Malosh are agents and decision 

makers of UC’s medical school. All claims against Defendants Ball [sic] 

mand Malosh are for their actions in their official capacity.

(Id.) 

This minimal inclusion of Filak and Malosh in name only is insufficient to state a 

claim. As the undersigned pointed out in the September R&R, Plaintiffs’ inclusion of two 

individuals’ names is devoid of any supporting factual allegations, including but not limited 

to the titles or positions held by those individuals, and does not allege any specific actions 

that either individual took against either of the Plaintiffs. The allegation that both 

individuals “are agents and decision makers of UC’s medical school” appears to be a 

conclusory legal assertion as opposed to a factual allegation. See Bird v. Delacruz, 2005 

WL 1625303 at *4, 2005 U.S. Dist. LEXIS 48388 at **10-11 (S.D. Ohio July 6, 2005) 

(collecting cases finding that it is insufficient to merely plead the legal conclusion of 

agency without factual support). A “legal conclusion couched as a factual allegation” is 

insufficient as a matter of law to state a claim against either individual. See Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). At a minimum, a state official identified as a defendant 

must have “some connection with the alleged unconstitutional act or conduct of which the 

plaintiff complains.” Top Flight Entm’t, Ltd. v. Schuette, 729 F.3d 623, 634 (6th Cir. 2013) 

(internal quotation marks and additional citation omitted). Suit will not lie in the absence 

of facts showing that the state official has some responsibility for the alleged constitutional 

violations. The “connection” requirement is designed to ensure that the state official is 

not merely being sued “as a representative of the state” in an attempt to get around the 

State’s Eleventh Amendment immunity. Ex Parte Young, 209 U.S. at 157.

In their reply memorandum, Plaintiffs urge this Court to take judicial notice of facts 

that they have not alleged in their tendered amended complaint. Specifically, Plaintiffs
10

urge the Court to take judicial notice that UC’s website identifies Defendant Filak as the 

current Dean of the College of Medicine and identifies Defendant Malosh as the Assistant 

Dean. Plaintiffs argue that as current Dean, Filak “has dominion and control over all 

operations” and “has the final decision regarding dismissal.” (Doc. 35 at 4). Plaintiffs

argue that according to UC’s website, Assistant Dean Malosh oversees academic support 

and counseling, which would include disability accommodations. However, Plaintiffs

admit that Filak “was not the Dean at the time of Plaintiffs’’ enrolment [sic] with the

university.” (Id. at 4, n.17). 

Defendant UC argues that it would be improper for this Court to assume facts not 

included in the tendered amended complaint filed on September 6, 2019. I agree. Courts 

are limited in the type of facts as to which they can take judicial notice. Assuming that 

this Court can take judicial notice of the content contained on a website operated by a 

governmental entity in the context of a motion for judgment on the pleadings, such notice 

would not be appropriate here because Plaintiffs’ complaint does not refer to that website 

in any manner. As another court explained:

Plaintiffs' reliance on the doctrine of judicial notice is misplaced. “A 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.” Fed R. Evid. 201(b). “Public record and 

government documents are generally considered ‘not to be subject to 

reasonable dispute.’ ” U.S. ex rel. Dingle v. BioPort Corp., 270 F.Supp.2d 

968, 972 (W.D.Mich.2002) (citing Grimes v. Navigant Consulting, Inc., 185 

F.Supp.2d 906, 913 (N.D.Ill.2002) (taking judicial notice of stock prices 

posted on a website); Cali v. E. Coast Aviation Servs., Ltd., 178 F.Supp.2d 

276, 287 (E.D.N.Y.2001) (taking judicial notice of documents from 

Pennsylvania state agencies and Federal Aviation Administration)). 

Plaintiffs are correct in asserting that a court docket is the type of public 

document that is not reasonably open to dispute.

However, in order for the Court to take judicial notice of a public document, 

Plaintiff must either refer to or attach the public record to the Complaint. 

“Assessment of the facial sufficiency of the complaint must ordinarily be 
11

undertaken without resort to matters outside the pleadings.” Wysocki v. Int'l 

Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir.2010). “However, a court 

may consider ‘exhibits attached [to the complaint], public records, items 

appearing in the record of the case and exhibits attached to the Defendant's 

motion to dismiss so long as they are referred to in the complaint and are 

central to the claims contained therein.” Rondigo, L.L. C. v. Township of 

Richmond, 641 F.3d 673 (6th Cir.2011).

Ghaster v. City of Rocky River, 913 F.Supp.2d 443, 454–55 (N.D. Ohio 2012). Plaintiffs

do not proceed pro se but are represented by counsel. “It is not the responsibility of the 

court to rewrite the complaint to set forth a claim.” Cornett v. Magnum Hunter Prod., 585 

Fed. Appx. 316, 317 (6th Cir. 2014); accord, Ghaster, 913 F. Supp.2d at 464 n. 2; see 

also Steele v. Edwards, 2016 WL 7325333 at *2 (M.D. Tenn. Dec. 16, 2016) (holding that 

proposed amendment was improper where plaintiff identified no factual basis for seeking 

injunctive relief because of a threat of future injury at hands of the newly proposed 

defendant). 

Even if Plaintiffs had included factual allegations sufficient to indicate specific 

actions undertaken by Drs. Filak or Malosh, and sufficient to clarify that those two 

individuals have the authority to grant the injunctive relief that Plaintiffs seek,4 UC argues 

that the amendment would fail as a matter of law based upon the applicable statute of 

limitations. 

Based on the allegations of the complaint, the undersigned will assume that UC 

intends its limitations argument to apply only to Plaintiff Ahmed Saqr, who allegedly was 

dismissed in August 2016.

5 The undersigned previously noted that “[m]ultiple cases 

suggest that Plaintiff Ahmad’s claims may well be time-barred.” (Doc. 11 at 18). 

However, UC’s prior motion to dismiss that Plaintiff’s claims was denied because no 

 

4 The referenced website content does not suggest that Dr. Malosh possesses the authority to reinstate 

Plaintiffs.

5 Plaintiffs allege that Omar Saqr was “finally dismissed on January 1, 2018.” 
12

discovery had yet occurred, and the original complaint contained one potential date of a 

“final” dismissal that fell within the limitations period. 

The addition of new Defendants does not automatically relate back to the date of 

the original filing of the complaint. See Rule 15(c)(1)(C). Plaintiffs concede that the 

amendment would be untimely unless Drs. Filak or Malosh had notice of Ahmed’s claims

within 90 days of the date the complaint was filed. Plaintiffs argue, however, that there is 

a presumption of notice when a complaint is amended to name officials or agents of the 

original Defendant. Plaintiffs maintain that the two individuals had imputed knowledge 

because they are UC’s “top administrators.” (Doc. 35 at 7). For the reasons discussed, 

accepting allegations not pleaded in the tendered amended compliant is problematic. The 

problematic nature of such an assumption is compounded when one considers that

Plaintiffs also admit that Filak was not Dean at the time of the events in question.

The undersigned concludes that the “relation back” doctrine does not apply on the 

circumstances presented, where Plaintiffs are attempting to add entirely new parties. In 

the recent case of Durham v. Martin, 388 F. Supp.3d 919 (M.D. Tenn. 2019), the district 

court reviewed controlling case law and Rule 15 and rejected a similar argument that the 

belated amendment of a complaint to add new claims against individuals in their official 

capacity should relate back to the original filing. Although Durham is non-binding and is 

presently on appeal, the undersigned finds its “relation back” analysis to be persuasive. 

Indeed, another court in this district previously reached a similar conclusion. See Smtih 

v. Gallia County Sheriff, 2011 WL 2970931 (S.D. Ohio July 20, 2011).

The undersigned further concludes that the proposed tendered amendment should 

be denied on the basis of undue delay, because it was not filed until more than a year 

after the filing of the original complaint, and long after UC had engaged in extensive paper 
13

discovery and had deposed both Plaintiffs.

6

 In their reply memorandum, Plaintiffs argue 

that there is no undue delay because the need to amend only arose after the undersigned 

recommended the dismissal of Plaintiffs’ ADA claims based upon sovereign immunity. 

However, the tendered amendment was filed more than six months after the undersigned 

filed the first R&R recommending judgment on the pleadings yet attempts to restate many 

of those claims without adding any new factual allegations. As for the more recent R&R, 

Plaintiffs’ misunderstanding about who might be a proper defendant does not excuse their 

delay. Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971 (6th Cir. 1973).

The undersigned also concludes that the Defendant would be unduly prejudiced

by the tardy amendment so close to the prior discovery deadline.

7

 Plaintiffs deny that UC 

would be prejudiced, arguing that “Malosh and her actions were heavily discussed” in 

Plaintiffs’ depositions. However, Plaintiffs do not allege (nor could they, considering he 

was not the Dean at the time) that Filok’s actions were discussed. The fact that some 

discovery relevant to Malosh may have occurred does not mean that Malosh would not 

be prejudiced, as a non-party’s interests during a deposition may differ greatly from the 

same individual’s interests if she is a named party. 

D. If Plaintiffs’ Improper Amendment to the Tendered Amended 

Complaint Attached to the Reply Memorandum is 

Considered, Leave to Amend Should Still be Denied

Even if a reviewing court were to disagree with the undersigned and overlook the 

procedural improprieties in order to consider the improper “amendment” to the previously 

 

6 The proposed amendment also occurred long after Plaintiffs represented in a March 22, 2019 joint 

discovery plan that they did not anticipate adding parties or claims. (Doc. 16 at PageID 135).

7 The undersigned recently granted the parties’ joint motion to extend that deadline to allow additional time 

for the filing of this R&R and the presiding district judge’s review of the recommended rulings.
14

tendered first amended complaint, the undersigned still would recommend that Plaintiffs’ 

motion for leave to amend be denied on the basis of undue prejudice and delay.

In addition, as UC points out in its sur-reply, this Court previously dismissed 

Plaintiffs’ ADA retaliation claims not only based upon sovereign immunity, but also based 

upon a failure to state a claim. In the February R&R, the undersigned highlighted the 

threadbare nature of Plaintiffs’ allegations, including the lack of any factual detail

concerning who, what, when or where events occurred. In the October 11 tendered 

amendment, Plaintiffs indicate that they wish to make the singular “Defendant” inclusive 

of the two individual Defendants, but otherwise add no factual detail and make no effort 

to differentiate between UC, Malosh or Filak. This Court previously warned Plaintiffs that 

their complaint should be able “to identify some minimal level of detail within Plaintiffs’ 

knowledge, such as the name or title of the person(s) to whom they allegedly complained, 

whether the complaints were oral or in writing, and/or a rough time frame of when they 

expressed those complaints.” (Doc. 11 at PageID 99). Plaintiffs’ latest iteration is no less 

threadbare and conclusory. In fact, Plaintiffs’ acknowledgement that Dr. Filak was not 

the Dean at the time Plaintiffs were enrolled runs counter to any possibility that he could 

have retaliated against the Plaintiffs. (See Doc. 35 at n. 17).

As for the relief sought based on Plaintiffs’ discrimination claims, Plaintiffs seek 

“an order enjoining Defendants from continuing to conduct itself in a manner that 

discriminates against students on the basis of race and/or disability.” (Doc. 35-1 at ¶94, 

PageID 234). However, Plaintiffs have no standing to request relief for other “students.” 

See generally Warth v. Seldin, 422 U.S. 490, 499 (1975) (a party “generally must assert 

his own legal rights and interests and cannot rest his claim to relief on the legal rights or 

interests of third parties.”). Of course, Plaintiffs’ primary claim for injunctive relief appears 
15

to be their request for reinstatement to the College of Medicine. However, UC argues 

that Dr. Malosh has no authority to reinstate Plaintiffs. Plaintiffs’ latest tendered

amendment does not suggest otherwise. And, although Dean Filak may possess greater

authority, Plaintiffs’ failure to name the prior Dean and Dr. Filak’s lack of any personal 

connection to the alleged ADA violations makes injunctive relief against him 

inappropriate.

III. Conclusion and Recommendation 

In conclusion, IT IS RECOMMENDED THAT Plaintiffs’ motion to amend or correct 

their complaint (Doc. 28) be DENIED. 

s/ Stephanie K. Bowman 

Stephanie K. Bowman

United States Magistrate Judge
16

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).