Moles v. Smith et al.

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISON
DAISY JEAN MOLES,
Plaintiff,
v.
SUPERINTENDENT ANGELA SMITH, et
al.,
Defendants.
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CASE NO. 1:25-cv-01008-DCN
JUDGE DONALD C. NUGENT
MAGISTRATE JUDGE
REUBEN J. SHEPERD
REPORT AND RECOMMENDATION
I. Introduction
On May 16, 2025, Plaintiff Daisy Jean Moles (“Moles”), filed a Complaint, asserting
constitutional claims under 42 U.S.C. § 1983 against Defendants Shawn Douglas, Michelle
Hayes, Brian Horvath, Jean Sency, Angela Smith, Jeff Thompson, and Jack Whaley (respectively
by last name, collectively, “Individual Defendants”) (ECF Doc. 1), which was later amended to
include Defendant Madison Local School District Board of Education (“the Board”), and added
three more claims, (ECF Doc. 12), to which all Defendants answered (ECF Doc. 17). On June
13, 2025, the case was referred to me for pretrial supervision, including, among other instruction,
filing a report and recommendation for case-dispositive motions. (ECF Doc. 11).
Defendants have since filed a Rule 12(c) Motion for Judgment on the Pleadings,
requesting the matter be dismissed in its entirety. (ECF Doc. 18). As explained below, the
Amended Complaint fails to allege facts upon which relief might be granted. Furthermore, the
facts alleged do not warrant that Moles be permitted additional amendments to her Complaint or
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otherwise attempt to revive her claims. I therefore recommend the District Court grant
Defendants’ motion and dismiss the case with prejudice.
II. Procedural History
Moles’ original Complaint filed on May 16, 2025, named Individual Defendants Douglas,
Hayes, Horvath, Sency, Smith, Thompson, and Whaley, with respect to their roles at Madison
Public Schools. (ECF Doc. 1, pp. 1-3). In the addendum to her Complaint, Moles brought suit
against each in their official and individual capacities. (ECF Doc. 1-1, pp. 2-3). Moles also
named the Madison Local School District Board of Education in the caption, but did not provide
a summons to the Clerk for mailing. (ECF Doc. 1-1, p. 7; non-document entry of June 16, 2025
(ordering Plaintiff to perfect service against the Board if she wished to proceed against it)). In
that Complaint, Moles brought the following claims for relief: First Amendment Retaliation
(Count I); and Equal Protection Violation, with a Fourteenth Amendment “Class of One” Theory
(Count II). (ECF Doc. 1-1, pp. 4-5).
On July 2, 2025, within the time permitted for filing as a matter of course under Federal
Rule of Civil Procedure 15(a)(1), Moles filed an amended complaint against the same individual
Defendants, and adding the Board as a defendant. (ECF Doc. 12). In the operative Amended
Complaint, Moles raises the following claims for relief: Count I – First Amendment Retaliation
against all individual Defendants, Count II – Equal Protection Violation against all individual
Defendants, Count III – Procedural Due Process Violation against all individual Defendants,
Count IV – Civil Rights Conspiracy against all individual Defendants, and Count V – Monell
Liability against the Board. (ECF Doc. 12, Am. Compl., ¶¶ 17-33).
On September 4, 2025, Defendants filed a Motion for Judgment on the Pleadings (ECF
Doc. 18), and a Motion to Stay Discovery (ECF Doc. 19) until the Court resolves the dispositive
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motion. Despite a late-filed opposition by Moles, I granted Defendants’ motion and stayed
discovery. (Non-document entries of Sept. 24 and Sept. 29, 2025; see also ECF Docs. 20, 21, 22,
23).
Thereafter, Moles filed opposition to the Motion for Judgment on the Pleadings on
October 15, 2025 (ECF Doc. 24), Defendants replied on October 29, 2025 (ECF Doc. 26), and
Moles was granted leave to file a sur-reply (ECF Doc. 27) on November 3, 2025. The matter is
now fully ripe.
III. Factual Background
Moles is a former resident of Lake County, Ohio; she is a parent of a student who was
previously enrolled in Madison Local School District and was actively engaged at the school.
(ECF Doc. 12, p. 1, Am. Compl., Introduction, ¶ 1). Defendant Smith was the Superintendent of
that school district at the time of the allegations in the Complaint; Defendant Whaley is the
Principal of Madison Middle School, and Defendants Douglas, Hayes, Horvath, Thompson, and
Sency were Madison School Board members. (ECF Doc. 17, Am. Ans., ¶¶ 4-6). The Board is a
public body organized under Ohio law. (Id. ¶ 7).
Moles states that between 2021 and 2023, she was an active parent at Madison Middle
School, serving as president of the Parents and Kids (“PAK”) Group at Madison Middle School.
(ECF Doc. 12, Am. Compl., ¶ 8). She organized events and fundraising, and attended school
board meetings. (Id.). Moles alleges that, starting in 2021, she voiced concerns about the
district’s transparency, administrative accountability, and student welfare, both at school board
meetings and via email correspondence. (Id. ¶ 9). She also submitted public records requests
under Ohio Revised Code § 149.43 regarding Board policy, financial oversight, and school
practices. (Id. ¶ 10; ECF Doc. 17, Am. Ans., ¶ 12). She alleges she engaged in lawful, civil, and
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cooperative conduct and her behavior would not warrant exclusion from school events or public
meetings. (ECF Doc. 12, Am. Compl., ¶ 12).
In 2022, Moles was removed from leadership in the PAK group. (Id. ¶ 13a). She alleges
this was done through Defendants’ control. (Id. ¶¶ 13a, 13f). Defendants maintain that the PAK
group is independent of their control and admit only that she “was removed” from leadership.
(Id.; ECF Doc. 17, Am. Ans., ¶¶ 16, 21).
Moles alleges, without specificity, that Defendants reported her to local police “under
false pretenses of financial misconduct.” (ECF Doc. 12, Am. Compl., ¶ 13b). She states no audit,
charges, or formal complaint followed. (Id.). Defendants respond that “the police were involved
with” claims regarding Moles’ handling of school funding. (ECF Doc. 17, Am. Ans., ¶ 17).
Moles states that she submitted public records requests in 2024 and 2025. (ECF Doc. 12,
Am. Compl., ¶ 13c). Defendants responded to these requests but had no responsive materials to
provide, stating that records that Moles believed to exist did not exist, or that a settlement
agreement prevented disclosure; Moles characterizes these responses as denials. (Id.).
Defendants admit that they responded to the public records requests as violative of a settlement
agreement and/or were legally insufficient. (ECF Doc. 17, Am. Ans., ¶ 18).
Moles also states she and her adult daughter (who is not a plaintiff in this suit) were
required to undergo and pay for a background check in order to chaperone a school dance. (ECF
Doc. 12, Am. Compl., ¶ 13d). Moles alleges that other parents were permitted to chaperone
without the same background check process. (Id.). In 2023, Moles alleges that the Board
announced a new policy that only staff would be permitted to chaperone school events. (Id.).
Despite communication with the superintendent regarding the policy, Moles was not permitted to
chaperone a school dance. (Id.). Moles’ daughters attended the dance and were placed at a table
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monitored by the assistant superintendent (who is not a defendant). (Id.). Defendants admit that it
was school policy to require Moles and her adult daughter submit to and pay for a background
check to chaperone a school dance. (ECF Doc. 17, Am. Ans., ¶ 19). They also admit that the
Board revised policies regarding chaperones. (Id.).
Moles states that, during a public school board meeting in 2022, she exceeded her
speaking time, and Defendants cut her microphone, left the stage, and summoned police. (ECF
Doc. 12, Am. Compl., ¶ 13e). She states other speakers were permitted reasonable extensions for
speaking time. (Id.). She also states she was “falsely labeled a trespasser and the meeting was
halted until she left.” (Id.). Defendants admit that “police were called in response to [Moles]
trespassing during a Board meeting.” (ECF Doc. 17, Am. Ans., ¶ 20). They also state that Moles
“violated the rules in place for Board meetings.” (Id.).
Moles states she was not notified of her alleged wrongdoing or offered a forum to contest
the above actions. (ECF Doc. 12, Am. Compl., ¶ 15).1
IV. Standard of Review
Once the pleadings stage is complete, but early enough not to delay trial, a party may
seek judgment on the pleadings. Fed. R. Civ. P. 12(c); Moderwell v. Cuyahoga Cnty., 997 F.3d
653, 659 (6th Cir. 2021). The standard for considering a Rule 12(c) motion for judgment on the
pleadings is the same as that of a Rule 12(b)(6) motion to dismiss. Moderwell, 997 F.3d at 659.
When deciding a Rule 12(c) motion, a court considers all available pleadings, including
the complaint and the answer. See Fed. R. Civ. P. 12(c). “The court can also consider: (1) any
documents attached to, incorporated by, or referred to in the pleadings; (2) documents attached to
1 The remaining allegations in Moles’ Amended Complaint appear to be conclusory restatements of her legal claims.
(See, e.g., ECF Doc. 12, Am. Compl., ¶¶ 17-33). As such, I do not recount them here as part of the factual
background in this case. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), quoting Papasan v. Allain, 478
U.S. 265, 286 (1986).
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the motion for judgment on the pleadings that are referred to in the complaint and are central to
the plaintiff’s allegations, even if not explicitly incorporated by reference; (3) public records; and
(4) matters of which the court may take judicial notice.” Dudek v. Thomas & Thomas Attorneys
& Couns. at Law, LLC, 702 F. Supp. 2d 826, 832 (N.D. Ohio 2010) (citations omitted). The
matters a court may consider are limited to the pleadings phase and do not extend into discovery.
See Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010) (describing
conversion to summary judgment if the court considers matters outside the pleadings).
“For purposes of a motion for judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly entitled to judgment.” Moderwell, 997
F.3d at 659 (internal quotations and marks omitted). To succeed, the moving party must show
that, even if accepted as true, “no material issue of fact exists and the party making the motion is
entitled to judgment as a matter of law.” Id. On the other hand, to survive a motion for judgment
on the pleadings, as with the 12(b)(6) standard, a complaint must plead facts sufficient to state a
claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Pleadings by pro se litigants are liberally construed and held to less stringent standards than
formal pleadings by lawyers. El Bey v. Roop, 500 F.3d 407, 413 (6th Cir. 2008); see also
Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985). But even so, liberal construction of pro se
pleadings is not without its limits. Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001).
Liberal construction does not require this Court to conjure allegations on a plaintiff’s behalf, and
pro se pleadings must provide notice to the opposing party of the relief sought. Id.
At this stage in the pleadings, a material issue of fact exists when the allegations set out
more than a speculative possibility that the opposing party is entitled to the relief sought.
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Twombly, 550 U.S. at 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face’”, quoting id. at 678). Thus, the complaint should indicate a “statement of the
circumstances, occurrences, and events giving rise to the claim[.]” Armengau v. Cline, 7 F. App’x
336, 344 (6th Cir. 2001) citing Veney v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995), and Fed. R.
Civ. P. 8. Nonetheless, courts need not accept a legal conclusion as true when dressed as a factual
allegation or make unwarranted factual inferences. Jackson v. Prof’l Radiology, Inc., 864 F.3d
463, 466 (6th Cir. 2017); see also Twombly, 550 U.S. at 555-56.
In application, this is not a high bar for the opposing party to cross; it means simply that
they present “enough fact to raise a reasonable expectation that discovery will reveal evidence”
to support the allegations. Twombly, 550 U.S. at 556. If so, then the case may proceed even if
uncovering actual proof of the facts alleged is improbable and recovery unlikely. Id.
V. Discussion
All Defendants jointly request that this Court grant their motion for judgment on the
pleadings and dismiss Moles’ case in its entirety, with prejudice. (ECF Doc. 18). They bring
multiple arguments in support. (See id.; see also ECF Doc. 26). Despite prior amendment to her
Complaint (compare ECF Doc. 1, 1-1 with ECF Doc. 12), and fully briefed opposition to
Defendants’ motion (ECF Doc. 24), including a sur-reply (ECF Doc. 27), it appears Moles has
not alleged sufficient facts for her case to succeed.
I now consider each of Defendants’ arguments in turn.
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A. The Amended Complaint fails to state a claim on which relief can be granted.
The Individual Defendants argue that Counts I – IV fail to state a claim on which relief
can be granted. (ECF Doc. 18, pp. 15-24). I will address each Count separately below.
For all Counts, a pleading does not require a technical form; it merely must provide “a
short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R.
Civ. P. 8(a)(2); 8(d)(1). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P.
8(d)(1). Pro se pleadings, like Moles’, are construed broadly. El Bey, 500 F.3d at 413. To be well-
pled, a complaint need not be detailed, nor does it require a judge to believe that the factual basis
of the claim is probable, should the case proceed to discovery. Twombly, 550 U.S. at 555-56.
However, the plaintiff must set out a statement of facts based on more than mere speculation. Id.
It is not enough to rely only on conclusory allegations suggestive of illegal conduct without
providing further factual enhancement to support the claim – particularly where, as here,
allegations of “parallel conduct . . . could just as well be independent action.” Id. at 557
(describing that a court need not accept terms such as “conspiracy” or even “agreement” as a
sufficient basis for a complaint without other facts in support of the claim).
Moreover, the Court must construe pleadings “so as to do justice.” Fed. R. Civ. P. 8(e). It
must also consider the case as a whole, including available methods to weed out groundless
claims through careful case management, and the expense of continued litigation. See, e.g.,
Twombly, 550 U.S. at 557-60. As discussed in each section below, Counts I– IV of Moles’
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Amended Complaint fail for lack of specificity and directness under Rule 8; she has not alleged
facts to support any claim on which relief might be granted.
1. Count I – First Amendment Retaliation
Each of Moles’ claims appear premised on the idea that Defendants have conspired to
retaliate against her for conduct protected by the First Amendment. (See generally Am. Compl.).
In support of these claims, she states simply that she “engaged in protected speech and petition
activity under the First Amendment” and that “Defendants retaliated against Plaintiff by
excluding her from leadership roles, denying access to school functions, involving police, and
obstructing her records requests.” (ECF Doc. 12, Am. Compl., ¶¶ 17-18).
To prevail on a First Amendment retaliation claim, Moles must show that:
(1) she engaged in constitutionally protected speech,
(2) the Individual Defendants took adverse actions against her that caused her to
suffer an injury that would likely chill a person of ordinary firmness from
continuing that activity, and
(3) the Individual Defendants’ actions were motivated, at least in part, by the
exercise of her constitutional rights.
McElhaney v. Williams, 81 F.4th 550, 556 (6th Cir. 2023), cert. denied, 144 S. Ct. 696, 217 L.
Ed. 2d 390 (2024).
The First Amendment’s free speech guarantee protects “almost all speech” from
government interference, especially when the “censorship is based on the views expressed within
the speech.” Id. (internal quotations and marks omitted). The “‘right to criticize public officials’
is safely within that protected speech zone . . . and is typically off limits from government
regulation.” Id., quoting Jenkins v. Rock Hill Loc. Sch. Dist., 783 F.3d 585, 599 (6th Cir. 2008).
It extends to protect the contents of a parent’s speech about their child to school employees,
unless that speech is obscene, or is part of a crime, incitement, or fraud. McElheney, 81 F.4th at
557; see also Alvarez, 567 U.S. 709, 717 (2012). It is unnecessary for a parent to speak on a
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matter of public concern for their speech to be protected. Jenkins, 513 F.3d 580, 586-88 (6th Cir.
2008) (distinguishing the Pickering and Connick “public concern” test inapplicable to parental
speech in the public school context, because that test was designed to balance government
employee speech on matters of public concern and the interests of the state as an employer).
The First Amendment also protects a citizen’s right to make a public-records request, but
it does not compel disclosure of the underlying records. Spithaler v. Smith, 803 F. App’x 826,
829 (6th Cir. 2020). “‘[N]either the First Amendment nor the Fourteenth Amendment mandates a
right of access to government information or sources of information within the government’s
control.’” Phillips v. DeWine, 841 F.3d 405, 418 (6th Cir. 2016), quoting Houchins v. KQED,
Inc., 438 U.S. 1, 14-15 (1978).
Thus, at the pleadings stage and construing in her favor, the Court may presume that
Moles’ alleged speech and her ability to make public records request is protected by the First
Amendment. The content of her speech is not mentioned in the pleadings, and without an
allegation that the speech was obscene, defamatory, or fighting words, it generally falls within
the protections of the First Amendment. See Jenkins, 513 F.3d at 588, citing R.A.V. v. St. Paul,
505 U.S. 377, 382-83 (1992).
But that is not the end of the analysis. Even if the speech itself receives broad protection
from the First Amendment, Moles must still meet the second and third elements for her First
Amendment Retaliation claim to survive. Jenkins, 513 F.3d at 588 (describing that the first prong
of a retaliation claim is balanced against the other two, to prevent disputes between parents and
school officials from becoming First Amendment lawsuits). Thus, Moles must yet plead
sufficient facts to show that the Individual Defendants took adverse actions against her and
caused injury that would likely chill a person of ordinary firmness from continuing that activity,
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and the Individual Defendants’ actions were motivated by the exercise of her constitutional
rights. McElhaney v. Williams, 81 F.4th 550, 556 (6th Cir. 2023), cert. denied, 144 S. Ct. 696,
217 L. Ed. 2d 390 (2024). In so doing, “a plaintiff must prove a causal connection between the
protected conduct and the adverse action.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392,
400 (6th Cir. 2010). “Bare allegations of malice do not suffice to establish a constitutional
claim.” Id., quoting Crawford-El v. Britton, 523 U.S. 574, 588 (1998) (internal marks omitted).
This is where Moles has failed to plead sufficient facts to show either element. In the
Protected Activities portion of her factual allegations, she provides the conclusory statements
that her “speech and records requests were protected activity under the First Amendment” and
that “[a]t all relevant times [Moles’] conduct remained lawful, civil, and cooperative. She
engaged in no behavior warranting exclusion from school events of public meetings.” (ECF Doc.
12, Am. Compl., ¶¶ 11, 12).
Moles continues, alleging that “Defendants engaged in a coordinated campaign of
retaliation” in response to her speech activity. (Id. ¶ 13). She names the alleged retaliatory acts as
“exclusion from PAK leadership,” “false allegations & police involvement,” “denial of public
records,” arbitrary chaperone exclusion,” “police involvement at public meeting,” “contradictory
PAK oversight claims,” and “retroactive policy changes.” (Id. ¶¶ 13a-g). Of these allegations,
none are directed at any Individual Defendant; all name only “Defendants” broadly. (Id.). Even if
further factual development could uncover which Defendant acted, her supporting allegations of
fact lack the type of directness expected in an Amended Complaint – they provide vague
reference to “Defendants” generally without identifying which Individual Defendant may have
acted, (¶¶ 13a-g); include permissible conduct (e.g., policy requirements for chaperones, ¶¶ 13d,
g); and include conduct seemingly outside of Defendants’ control (i.e., no explanation is given
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for Defendants’ control over a parent’s organization, ¶¶ 13a, b, f). In addition, Moles makes no
allegations that she was ever prevented from submitting a public records request. (Id. ¶ 13c).
These allegations do not demonstrate an adverse act by the Individual Defendants. Moles fails as
to the second element of her First Amendment Retaliation claim.
And finally, Moles fails to connect the exercise of her free speech and any action by the
Individual Defendants. In general, the allegations in the Amended Complaint rely only on legal
conclusions to support the claims. (Id. at Introduction, ¶¶ 11-12, 14-16). But even those with
more factual content still fail to demonstrate speech-related retaliation. For example, Moles
alleges that “Defendants reported Plaintiff to local police under false pretenses of financial
misconduct. No audit, charges, or formal complaints followed.” (Id. ¶ 13b). Certainly, a false
police report may be of the type of conduct that would chill the speech of a person of ordinary
firmness. But Moles provides no causal link to her protected speech. She simply continues that it
“was an act of intimidation and reputational harm.” (Id.). This allegation thus is a bare allegation
of malice and does not support her constitutional claim. Vereecke, 609 F.3d at 400. Similarly,
when police were called to a public school board meeting in 2022, Moles alleges this was
because she “briefly exceeded her speaking time.” (ECF Doc. 12, Am. Compl. ¶ 13e). Moles was
permitted to speak during the public meeting, and therefore, her free speech right was protected
by the Board. Limiting the time of her speech without relation to the content does not show that
any Individual Defendant committed an unconstitutional act or that it was motivated by Moles’
exercise of her First Amendment rights. Public board meetings are permitted content-neutral
controls to ensure orderly meetings take place and allow all attendees to exercise their freedom
of speech. It is for Moles to allege facts to show the causal link from her speech itself to an
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Individual Defendant’s retaliatory action. But she has failed to make that link. (See id.). Thus, the
third prong – speech-based animus – fails.
This First Amendment Retaliation claim is foundational to the other claims within Moles’
Amended Complaint. When cutting away the legal conclusions to only the facts on which those
conclusions are premised, Moles has provided little to link her exercise of speech to any
retaliatory actions by the Individual Defendants. And certainly, pro se pleadings need not be
detailed – but they must be direct, and on directness, Moles has failed to put any Defendant on
sufficient notice of their allegedly unconstitutional acts. Even taking the allegations in the best
light, it is not clear which Defendant acted, when the conduct occurred, whether it was an
independent action by an individual Defendant, or how Defendants are alleged to have conspired
against her. (See generally Am. Compl.).
I am also mindful that Moles’ case is in the pleadings stage, and that discovery has been
stayed until Defendants’ Motion for Judgment on the Pleadings is decided. Nonetheless, Moles
does not adorn her Amended Complaint with the type of facts that presumably are within her
control. For example, even though Moles alleges she is being discriminated against for her
viewpoint, she does not provide what viewpoint she holds that has caused discriminatory animus
by any Defendant. She does not provide the contents of the records requests submitted. Nor does
she provide the subject matter underlying her protected speech, or general allegations of which
Board meeting she attended when she was not permitted to overrun her allotted time. Certainly,
she is not expected to remember or recite full details at this stage of the pleadings. But I am left
troubled that, for a First Amendment Retaliation claim, Moles does not provide any details of her
protected speech, and names as retaliation certain activities by Defendants that are not, in
themselves, unlawful.
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Thus, even under the leniency afforded her as the pro se, nonmoving party, Moles’
Amended Complaint fails to state a claim as to Count I – First Amendment Retaliation, and I
recommend granting Defendants’ motion and dismissing this Count.
2. Count II – Equal Protection Violation
In Count II, Moles argues that she “was treated differently than similarly situated parents
and community members,” that this “differential treatment lacked a rational basis and was
motivated by viewpoint discrimination and personal animus” resulting in “constitutional injury
and damages.” (ECF Doc. 12, Am. Compl., ¶¶ 22-24). In her opposition brief, Moles clarifies
that she “was cut off and threatened with police for slightly exceeding her time limit, while in
prior meetings other speakers were permitted to exceed their time without consequence.” (ECF
Doc. 24, p. 4). She further alleges that unnamed board members discussed her “‘inappropriate’
records requests and their alleged cost to the district” and repeatedly denied her requests, unlike
other community members. (Id.).
Defendants argue that the allegations in Moles’ Amended Complaint are conclusory and
do not provide any specific examples of a similarly situated parent or community member to
support her Equal Protection claim. (ECF Doc. 18, pp. 20-21).
The Fourteenth Amendment provides: “No State shall make or enforce any law which
shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const..
amend. XIV, § 1. To establish an Equal Protection violation, a plaintiff must show that a
government defendant’s actions resulted in disparate treatment between similarly situated
individuals that either burdens a fundamental right, targets a suspect class, or has no rational
basis. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) and Ctr. for Bio-
Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011). If disparate treatment is
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shown, and if that treatment “invades a ‘fundamental right’ such as speech” then “the rigorous
‘strict scrutiny’ standard governs, whereby such laws will be sustained only if they are suitably
tailored to serve a compelling state interest.” 37712, Inc. v. Ohio Dep’t of Liquor Control, 113
F.3d 614, 621 (6th Cir. 1997), quoting id. at 440.
“The Equal Protection Clause forbids only intentional discrimination.” Horner v.
Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 276 (6th Cir. 1994), citing Washington v. Davis,
426 U.S. 229 (1976). Thus, when a plaintiff asserts an equal protection challenge to a facially
neutral rule, they must show the rule was made “because of, not merely in spite of, its adverse
impact on persons in the plaintiff’s class.” Horner, 43 F.3d at 276. Disparate impact without
evidence of discriminatory intent does not violate the Equal Protection Clause. See, e.g.,
Washington v. Davis, 426 U.S. 229, 245-46 (1976); see also Reform Am. v. City of Detroit,
Michigan, 37 F.4th 1138, 1152 (6th Cir. 2022).
And the Sixth Circuit has held that the “threshold element of an equal protection claim is
disparate treatment” of similarly situated individuals. Ctr. for Bio-Ethical Reform, Inc., 648 F.3d
at 379, quoting Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).
“To be ‘similarly situated’ for purposes of an equal-protection claim, the plaintiff and the
comparator must be alike ‘in all relevant respects.’” Reform Am., 37 F.4th at 1152 (6th Cir.
2022), quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Equal protection claims may also be
brought by a “class of one” where a plaintiff alleges they have been intentionally treated
differently from others similarly situated without rational basis. Vill. of Willowbrook v. Olech,
528 U.S. 562, 564 (2000). The Supreme Court has explained that this is because the purpose of
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the Equal Protection Clause is to protect every person against “intentional and arbitrary
discrimination.” Id. (internal quotation and marks omitted).
Even where a fundamental right is implicated in the equal protection claim, a plaintiff
must plead sufficient facts to cross the threshold showing of disparate treatment. Ctr. for Bio-
Ethical Reform, Inc., 648 F.3d at 379. Conclusory allegations of intentional discrimination
without additional supporting detail does not show that the pleader is entitled to relief on their
equal protection claim. Nali v. Ekman, 355 F. App’x 909, 913 (6th Cir. 2009), citing Iqbal, 556
U.S. 662 (2009). And a court need not proceed in its equal protection analysis if a plaintiff fails
to plead sufficient facts. Ctr. for Bio-Ethical Reform, Inc., 648 F.3d at 379 (upholding district
court dismissal for failing to state a claim where “the Amended Complaint fails to make a
plausible allegation that similarly situated organizations and individuals . . . have not been
subject to the same alleged treatment by Defendants.”).
Here, Moles fails to allege sufficient facts to meet a threshold showing of disparate
treatment based on viewpoint. As discussed in the First Amendment Retaliation claim, above,
many of Moles’ factual allegations are conclusory legal claims wrapped in the guise of fact. (See,
e.g., ECF Doc. 12, Am. Compl., ¶¶ 11-13, 13c, 14-15). A court need not accept such allegations
as true.
Moreover, the claims of disparate treatment do not cross the plausibility threshold
required at the pleadings stage. Moles, in her Amended Complaint, makes broad allegations that
Defendants engaged in unconstitutional retaliatory behavior. She states in her opposition brief
that she was “singled out for stricter time-limit enforcement, more burdensome volunteer
requirements, and repeated records-request denials” and that this treatment was “selective” and
“driven by hostility to her advocacy.” (ECF Doc. 24, p. 5). But other than stating these broad
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conclusions, Moles does not show intentional differential treatment, applied only to her, to
ground her ‘class of one’ equal protection claim.
For example, Moles challenges two chaperone policy changes, made in 2022 and 2023,
respectively. (ECF Doc. 12, Am. Compl., ¶ 13d). She states that in 2022, she (and her adult
daughter) were required to undergo background checks to chaperone, but other parents were
permitted to chaperone without undergoing background checks. (Id.). In 2023, the policy
changed to only staff acting as chaperones, and no parents were permitted to chaperone,
regardless of background checks. (Id.). Even assuming the Defendants may have imperfectly
applied the background check rule, Moles points to another adult – her daughter – who also had
the background check policy applied to her. (Id.). And Moles makes no allegations of disparate
treatment with respect to the staff-only chaperone policy in 2023. (Id.). Thus, with respect to the
chaperone policy changes, Moles does not plead sufficient facts to show disparate treatment.
Next, regarding her public records request denials, Moles likewise does not allege facts to
show disparate treatment. She states only that the “denials were selectively enforced, lacked
transparency, and appeared calculated to chill [her] lawful oversight activities.” (Id. ¶ 13c). Even
though Moles alleges selective enforcement of public records requests, it does not appear that a
denial occurred. (See generally, ECF Doc. 12, Am. Compl.). Defendants responded to her public
records requests with an explanation as to why those records were unavailable. (ECF Doc. 12,
Am. Compl., ¶ 13c; ECF Doc. 17, Am. Ans., ¶ 18). Defendants did not prevent her from
submitting her public records requests, nor did they deny her a response. (Id.). And not having
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responsive records available to turn over does not result in selective enforcement of a public
records request by Defendants. Thus, Moles again fails to plausibly allege disparate treatment.
Finally, the time-limitation on public meetings portion of her Equal Protection claim also
fails to plausibly allege sufficient facts in support. As both parties acknowledge, the Board has a
rule in place to limit time for public comment during meetings. (See id. ¶ 13e; ECF Doc. 14, Am.
Ans., ¶ 20). Both parties agree that Moles violated this rule during the meeting in question. (Id.).
Moles states that she and other speakers had “briefly” exceeded speaking time, but that she was
subject to “stricter” enforcement of that rule. (ECF Doc. 12, Am. Compl., ¶ 13e; ECF Doc. 24, p.
5). But Moles does not allege that she was the only person subject to the time-limitation rule, or
that others who violated the rule were permitted to speak at length where she was not. (See id.).
It does not follow that stricter enforcement of a rule in one instance results in an equal protection
claim.
Thus, Count II – Equal Protection Violation also fails to state a claim on which relief
might be granted. I again recommend granting Defendants’ motion and dismissing this count.
3. Count III – Due Process Violation
In Count III – Due Process Violation, Moles claims the Individual Defendants excluded
her from civic participation, harmed her liberty interests in her reputation and public
engagement, and she was not given notice or hearing to defend her rights or clear her name.
(ECF Doc. 12, Am. Compl., ¶¶ 25-27).
Defendants state that this claim is insufficiently pled, but they presume her primary
constitutional claim relates to her removal from the PAK group. (ECF Doc. 18, p. 21).
Defendants state that the Amended Complaint is unclear, but, presuming that is the basis for her
claim, Moles cannot support any element of her due process claim. (Id. at pp. 21-23). Moreover,
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Defendants state that they are not obligated to provide Moles with a “name clearing hearing”
because she is not a public employee, but, even presuming she is entitled to a “name clearing
hearing” she has not alleged that she ever requested one and was denied. (Id. at pp. 22-23).
Moles later clarifies in her opposition brief that “[b]y branding [her] a trespasser,
instigating police involvement, and dissolving PAK without notice, Defendants inflicted
reputational and tangible harms without procedural safeguards” sufficient to satisfy the “stigma-
plus framework.” (ECF Doc. 24, p. 5, citing to Quinn, 293 F.3d at 320).
The Fourteenth Amendment provides that no state may “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const.. amend XIV, § 1. In cases where
the plaintiff alleges reputational harm, the “stigma-plus test” applies. Doe v. Michigan Dep’t of
State Police, 490 F.3d 491, 501 (6th Cir. 2007). This is because the stigma of reputational harm
alone does not amount to a protected liberty or property right under the Fourteenth Amendment.
Id., see also Paul v. Davis, 424 U.S. 693, 712 (1976). Therefore, to state a colorable claim of
procedural due process violation, the plaintiff must allege an injury to their reputation (the
stigma), coupled with the deprivation of a tangible liberty interest or property right (the plus)
without adequate process. E.g., Printup v. Dir., Ohio Dep’t of Job & Fam. Servs., 654 F. App’x
781, 785 (6th Cir. 2016).
Reading only the allegations of the Amended Complaint, as is required at this stage of the
proceedings, I agree that this claim is inartfully pled and fails to meet Rule 8’s pleadings
standards. In the Amended Complaint, Moles argues that she was excluded from “civic
participation without notice or hearing.” (ECF Doc. 12, Am. Compl., ¶ 25). However, as
discussed in Sections 1 and 2 above, Moles does not provide a factual basis for this claim – she
does not allege facts that show an exclusion from civic participation, rather, she appears
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frustrated by certain limitations placed on her desired means of civic participation, such as full
disclosure of all public records requests, chaperoning school events, or permission to speak at
public meetings without time limits imposed. These limitations do not amount to an exclusion,
and do not show that she was deprived of any liberty or property interest protected by the
Fourteenth Amendment. Some of the factual allegations – such as false allegations of financial
misconduct, ¶ 13b, or summoning police during a public meeting under false pretenses, ¶ 13e –
might lead to some reputational harm. But reputational harm alone does not suffice to establish a
due process claim. Paul, 424 U.S. at 712. Rather, Moles’ “interest in reputation is simply one of
a number which the State may protect against injury by virtue of its tort law.” Id.
Thus, Moles has failed to allege sufficient facts to meet the “stigma-plus” standard for
her procedural due process claim to survive. A due process claim based on reputational harm
alone does not stand. I therefore recommend that the District Court grant Defendants’ Motion
and dismiss this claim.
4. Count IV – Civil Rights Conspiracy
Moles alleges that “Defendants acted in concert and agreement” to violate her
constitutional rights, “including coordinated exclusions, false allegations, and weaponization of
school procedures.” (Id., ¶¶ 28-29). Defendants argue this claim should be dismissed based on
the intracorporate conspiracy doctrine, in which a Section 1983 conspiracy claim is barred if the
alleged conspiracy is by and between the employees or agents of the same school board. (ECF
Doc. 18, pp. 23-24, citing Jackson v. City of Cleveland, 925 F.3d 793, 817-19 (6th Cir. 2019)).
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Defendants state that this claim also fails because the conclusory allegations of the Amended
Complaint fail to satisfy pleading standards. (ECF Doc. 18, p. 24).
The intracorporate conspiracy doctrine states that “if all of the defendants are members of
the same collective entity, there are not two separate ‘people’ to form a conspiracy.” Jackson,
925 F.3d at 817. The Sixth Circuit has held that this doctrine applies in Section 1983 suits, and
bars conspiracy claims where two or more members of the same entity are alleged to have
conspired together to deprive a plaintiff of their rights. Id. This is because local government
entities are considered ‘persons’ for purposes of Section 1983, see Monell, 436 U.S. at 690, and
each member of that entity is treated as part of that same ‘person,’ not as individually separate
‘persons.’ Jackson, 925 F.3d at 818. And, in the public school context, this means that school
district superintendents, school administrators, and other employees are considered to be the
same collective entity, i.e., employees or agents of the Board of Education. Id., see also Hull v.
Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 510 (6th Cir. 1991)
(applying same in Section 1985 context). Thus, without two separate legal persons to form a
conspiracy, the claim fails. Id.
Here, all Individual Defendants are considered employees or agents of the same legal
entity: the Madison Local School District Board of Education. Because they are all the same
legal entity, there is no conspiracy claim available under Section 1983. Thus, Count IV – Civil
Rights Conspiracy is barred by the intracorporate conspiracy doctrine. I therefore recommend the
District Court grant Defendants’ Motion and dismiss this Count.
5. Count V – Monell Liability against the Board
Next, Moles brings a Monell claim against the Board, alleging that the Board “maintained
policies, customs, or practices that allowed unconstitutional conduct to occur unchecked [and]
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. . . failed to train, supervise, or discipline its members and administrators” which “directly
caused the violations of Plaintiff’s constitutional rights.” (ECF Doc. 12, Am. Compl. ¶¶ 31-33).
As the Board points out, Monell does not create a separate cause of action; it creates a
structure to impose liability on a municipal body for its unconstitutional policies or practices.
(ECF Doc. 18, pp. 24-25, citing to Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978),
among others). Even so, however, the Board argues that Moles has not alleged sufficient facts to
establish the potential for Monell liability later in the case. (ECF Doc. 18, p. 25, quoting Nichols
v. Wayne Cnty., 82 F. App’x 445, 451 (6th Cir. 2020)). In the Board’s view, Moles’ Amended
Complaint does not allege specific facts to impose Monell liability on it; the facts alleged are
broad and conclusory and thus this claim cannot survive. (ECF Doc. 18, pp. 26-27).
Monell does not create a separate cause of action under Section 1983. E.g., Hicks v. City
of Akron, Ohio, No. 5:23-CV-1, 2024 WL 732330, at *12 (N.D. Ohio Feb. 22, 2024); see also
City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). Rather, Monell removed
municipalities’ complete immunity and established a framework for imposing liability where a
municipality caused constitutional deprivations through its policies or customs. Monell, 436 U.S.
at 701. Monell also clarified that a local government is not automatically liable for the actions of
its employees under a respondeat superior theory of liability – for a municipality to be liable for
employee actions, those actions must be directly tied to a municipal policy or custom. Id. at 694.
In other words, the policy must be the “moving force” behind the constitutional violation, and
not attributable solely to the actions of the municipality’s employees or agents. Id.
“Plaintiffs who seek to impose liability on local governments under § 1983 must prove
that ‘action pursuant to official municipal policy’ caused” them to suffer a constitutional
violation. Connick v. Thompson, 563 U.S. 51, 60-61 (2011), quoting Monell, 436 U.S. at 691,
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694. To succeed, the plaintiff “must identify the policy, connect the policy to the [Board] itself,
and show that the particular injury was incurred because of the execution of that policy.” Garner
v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993). Official policy includes lawmakers’
decisions, policy-makers’ acts, and “practices so persistent and widespread as to practically have
the force of law.” Connick, 563 U.S. at 61.
I agree here with the Board’s arguments. First, Monell does not impose a separate cause
of action, and thus, Count V is not a proper claim on its own. But even presuming Monell
liability might later attach to the Board, Moles has not provided factual support for her theory.
The Amended Complaint recites bare legal conclusions to support Count V regarding Monell
liability. (See ECF Doc. 12, Am. Compl., ¶¶ 31-33). The Court need not accept a legal
conclusion as fact, and does not give them credence here. See Jackson, 864 F.3d at 466; see also
Twombly, 550 U.S. at 555-56. Even looking elsewhere in the Amended Complaint, the only
policy attributable to the Board is one that imposed a background check requirement on adults
chaperoning school functions. (ECF Doc. 12, Am. Compl., ¶¶ 13d, g). It belies common sense
that Monell liability should attach to the Board because of a policy requiring background checks
for adults supervising minors.
Furthermore, additional factual development will not bolster Moles’ theory. As provided
above, Moles’ constitutional claims fail. And the Board has no liability where there is no
constitutional violation. Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (“There can be no
liability under Monell without an underlying constitutional violation.”). Therefore, I again
recommend the District Court grant Defendants’ Motion and Count V be dismissed.
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B. Group Pleadings fail against the Individual Defendants
The Individual Defendants next argue that Moles has not identified the specific conduct
of any one of them, but makes allegations against “Defendants” generally. (ECF Doc. 18, pp. 13-
15). Such “group pleadings” fall short of the Sixth Circuit’s requirement that “‘claims against
governmental officials must allege, with particularity, facts that demonstrate what each defendant
did to violate the asserted constitutional rights.’” (Id. at p. 18, quoting Marcilis v. Twp. of
Redford, 693 F.3d 589, 596 (6th Cir. 2012) (emphasis in original) (collecting cases)). The
Individual Defendants argue that, by lumping them together collectively, Moles has not shown
that any individual defendant, “through their own individual actions, engaged in any
unconstitutional conduct sufficient to state a claim under 42 U.S.C. § 1983.” (ECF Doc. 18, p.
15). As the Individual Defendants point out, all factual allegations in the Amended Complaint are
“purportedly the result of ‘Defendants’ conduct.” (ECF Doc. 26, p. 6, quoting Am. Compl.
¶¶ 13b-f).
Moles disagrees that she has not sufficiently identified any individual Defendant’s
conduct. (ECF Doc. 24, pp. 2-3). She states that, as according to Rule 8, she “amply provides”
fair notice. (Id. at p. 2). She then lists, in her opposition brief, the conduct alleged against
Superintendent Angela Smith; Principal Jack Whaley; Board Members Douglas, Hayes, Horvath,
Thompson, and Sency; and the Board collectively. (Id. at pp. 2-3).
Federal Rule of Civil Procedure 8(a) requires the complaint to contain a “short and plain
statement of the claim showing that the pleader is entitled to relief,” to give the defendants “fair
notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 545
(internal quotations and marks omitted). The complaint may group defendants together as long as
it notices them of the claims against them and the factual basis. Gold Crest, LLC v. Project Light,
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LLC, 525 F. Supp. 3d 826, 835 (N.D. Ohio 2021). In certain cases, grouping defendants together
in the pleading stage is permitted and is not a basis for dismissal. See Buehner v. City of
Cleveland, 788 F. Supp. 3d 827, 893-94 (N.D. Ohio 2025), quoting Fazica v. Jordan, 926 F.3d
283, 292 (6th Cir. 2019).
However, whether group pleading of defendants violates Rule 8(a)’s notice pleading
requirements depends on the facts and claims at issue. Igo v. Sun Life Assurance Co. of Canada,
652 F. Supp. 3d 929, 934 (S.D. Ohio 2023) (collecting cases). In the context of a Section 1983
action against defendants in their individual capacity, as here, a plaintiff “must allege, with
particularity, facts that demonstrate what each defendant did to violate the asserted constitutional
right.” Ondo v. City of Cleveland, 795 F.3d 597, 610 (6th Cir. 2015) (internal quotations and
marks omitted) (emphasis in original). This is because “[p]ersons sued in their individual
capacities under § 1983 can be held liable based only on their own unconstitutional behavior.”
Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). Thus, a complaint fails the
notice pleading standard for group pleading if it does not identify an individual defendant by
name, or if it otherwise vaguely lumps multiple defendants together with conclusory allegations
or without sufficiently demonstrating their personal involvement in the alleged unconstitutional
action. Garrett v. Morgan Cnty. Sheriff’s Off., 792 F. Supp. 3d 771, 805-07 (N.D. Ohio 2025).
Courts within the Sixth Circuit, including this District, will generally hold that group pleading in
a Section 1983 action fails for want of specific factual allegations of an individual defendant’s
personal involvement in the unconstitutional action. Id. at 808 (collecting cases); see also
Marcilis, 693 F.3d at 596 (affirming district court’s dismissal of individual capacity claims
against two defendants where the complaint identified them by name only as governmental entity
employees and later made “only categorical references to ‘Defendants’ ”); Garton v. Crouch, No.
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3:21-CV-00338, 2022 WL 275519, *9 (M.D. Tenn. Jan. 28, 2022) (“The group pleading and
conclusory assertions are not sufficient to state a colorable claim of any kind.”); Kurek v. Ohio
Dep’t of Dev. Disabilities, No. 3:16CV623, 2017 WL 1555930, at *6 (N.D. Ohio Jan. 20, 2017)
(“conclusory allegations of collective, unspecified, and undifferentiated wrongdoing is not
sufficient . . . [and] fails to satisfy the Iqbal/Twombly standard.”) (collecting cases); contra
Buehner, 788 F. Supp. at 893-94 (group pleading survived motion to dismiss where the
complaint identified two partner officers who jointly acted as lead detectives and conducted
investigation together).
Moles is generally correct that she need not specifically state an individual defendant’s
name in order to satisfy Rule 8’s notice requirement to show a defendant’s personal involvement.
(ECF Doc. 24, p. 3). Particularized allegations allowing an inference to determine which
defendant acted, alone or together, may suffice to meet notice pleading standards. See Buehner,
788 F. Supp. at 893-94.
But that is not what Moles has done here, and her more specific statements in her
opposition brief do not save the Amended Complaint. The Individual Defendants are correct that
the Amended Complaint names only that “Defendants” committed certain actions. (See ECF
Doc. 26, p. 6, quoting Am. Compl. ¶¶ 13b-f). And Moles’ argument in her sur-reply that her
“Amended Complaint describes specific dates and events and the official capacities through
which Defendants jointly acted” is not borne out in that document. (ECF Doc. 27-1, p. 2). The
only title used in the Amended Complaint states only that, at a school dance, Moles’ daughters
were seated at a table with the Vice Superintendent – who is not a defendant in this action. (ECF
Doc. 12, Am. Compl., ¶ 13d). Neither does the Amended Complaint give specific dates or
specific occurrences that would lead to an inference of individual conduct. (See generally Am.
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Compl.). Rather, any date given is just to the year, and occurrences are limited to generalized
statements of conduct at a board meeting, school dance, public records request, or the like. It is
possible that these vague, conclusory references might later lead to a specific occurrence of
alleged unconstitutional conduct. However, Moles provides no specificity in the Amended
Complaint that could lead this Court to an inference of alleged conduct by any singular
Defendant, or of the type of specified collective conduct that would place those Defendants on
notice of the alleged unconstitutional action.
Group pleading of the individual Defendants thus fails to provide them sufficient notice
of the alleged conduct supporting Moles’ Section 1983 claims. I therefore recommend the motion
for judgment on the pleadings be granted as to all individual Defendants, namely, Superintendent
Angela Smith; Principal Jack Whaley; and Board Members Douglas, Hayes, Horvath,
Thompson, and Sency, and Moles’ case against them be dismissed.
C. Qualified Immunity bars suit against the Individual Defendants2
The Individual Defendants raise qualified immunity as a defense, arguing that Moles has
not alleged facts in her Amended Complaint to show that they violated a clearly established
statutory or constitutional right. (ECF Doc. 18, pp. 15-17). They argue that dismissal on qualified
immunity grounds at the pleadings stage is proper, because the failure to allege specific facts
against any individual defendant cannot demonstrate personal misconduct. (Id. at pp. 16-17). As
such, no Individual Defendant could have clearly known that they could be held individually
liable for an alleged constitutional violation based on their official capacities. (Id. at p. 17).
Moles responds only that qualified immunity shields officials only when their conduct does not
2 Moles correctly states that qualified immunity protects only the Individual Defendants and does not protect the
Board. (ECF Doc. 27-1, p. 2, citing Owen v. City of Indep., 445 U.S. 622 (1980). Only the Individual Defendants
raise this defense. (See ECF Doc. 18, pp. 15-17, with the heading “All Individually Named Defendants are Entitled
to Qualified Immunity from Plaintiff’s Causes of Action Brought Under 42 U.S.C. § 1983.”).
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violate a constitutional right, and that dismissal on qualified immunity grounds is “rarely
appropriate on the pleadings.” (ECF Doc. 24, p. 3, citing Pearson v. Callahan, 555 U.S. 223, 232
(2009) and Crawford v. Tilley, 15 F.4th 752, 764 (6th Cir. 2021)).
Qualified immunity protects government officials from civil liability when “‘their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson, 555 U.S. at 231, quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests—the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson, 555 U.S. at 231. Accordingly, a government official’s personal liability for an official
action “generally turns on the objective legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was taken.” Anderson v. Creighton, 483
U.S. 635, 639 (1987); see also See v. City of Elyria, 502 F.3d 484, 491 (6th Cir. 2007) (same).
Because qualified immunity is not merely a defense to liability but rather immunity to
suit, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), once qualified immunity is raised, a plaintiff
bears the burden to demonstrate that the defendant is not entitled to immunity. Greer v. City of
Highland Park, Michigan, 884 F.3d 310, 314 (6th Cir. 2018). Thus, “at the pleading stage, the
plaintiff must state facts making out a plausible claim that the defendant’s conduct violated a
constitutional right that was clearly established at the time of the violation.” Id. (internal
quotations and marks omitted). Moreover, “the clearly established law must be ‘particularized’ to
the facts of the case.” White v. Pauly, 580 U.S. 73, 79 (2017) quoting Anderson, 483 U.S. at 640.
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This means that the “clearly established” right must be so apparent that a reasonable official
would readily understand the unlawfulness of their alleged action. Anderson, 483 U.S. at 640.
A plaintiff must therefore allege facts to show (1) the government officials, acting under
color of state law, violated their constitutional right; and (2) the constitutional right was “clearly
established” at the time of the alleged violation, such that reasonable official would have known
that their conduct was unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002). When deciding on
qualified immunity grounds, this Court considers whether precedent “place[s] the . . .
constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). This is so
“liability attaches only to ‘the plainly incompetent or those who knowingly violate the law.’”
Hall v. Navarre, 118 F.4th 748, 759 (6th Cir. 2024), quoting Malley v. Briggs, 475 U.S. 335, 341
(1986).
The Sixth Circuit has recognized that Rule 8’s basic pleading standards may be
incongruous with affirmative defenses, including qualified immunity. Tilley, 15 F.4th at 763.
And, as I explain later, some affirmative defenses may be inappropriate to dismiss at the
pleadings stage. See Jones v. Bock, 549 U.S. 199, 212 (2007). But, to survive qualified
immunity, a right must be “clearly established” – and thus, an inartful pleading may yet lead to
dismissal on this prong. Tilley, 15 F.4th at 763. This is consistent with the Supreme Court’s
“longstanding principle that clearly established law should not be defined at a high level of
generality.” White, 580 U.S. at 79 (internal quotations and marks omitted). Overcoming qualified
immunity does not require a plaintiff have a “case directly on point,” al-Kidd, 563 U.S. at 741,
but it is nonetheless a “demanding standard” that “requires a high degree of specificity.” District
of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (internal quotations and marks omitted). Thus, a
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plaintiff may not circumvent qualified immunity by alleging a violation of rights in the abstract.
Tilley, 15 F.4th at 765-66; see also Anderson, 483 U.S. at 640.
And my review of Moles’ Amended Complaint reveals just this problem. Although
Moles alleges that her equal protection and procedural due process rights were violated, and that
she was retaliated against because of her exercise of First Amendment protected speech, these
allegations are only in the abstract.
1. Count I – First Amendment Retaliation
As for the First Amendment retaliation claim underpinning the other two, Moles must
show three things: (1) that the First Amendment protected her speech and her public records
requests; (2) that an Individual Defendant took an adverse action against her; and (3) that there
was a causal connection between her protected activity and the adverse actions of the Individual
Defendants. Hall, 118 F.4th at 759.
In her Amended Complaint, Moles stated she was “systematically targeted after raising
questions about transparency, equity, and school governance.” (ECF Doc. 12, Am. Compl. p. 1).
She alleges that she attended school board meetings from 2021 through 2023 and was engaged in
PAK activities. (Id. ¶ 8). She alleges that she “voiced concerns regarding district transparency,
administrative accountability, and student welfare” during public board meetings and via email
correspondence. (Id. ¶ 9). She also submitted public records requests addressing “board policy,
financial oversight, and school practices[.]” (Id. ¶ 10). She alleges that “Defendants”3 excluded
her from the PAK group, reported her to police for alleged financial misconduct, selectively
denied her public records requests (stating that records did not exist or were barred by a
3 As previously addressed, the Amended Complaint only describes allegations of “Defendants” carrying out
retaliatory acts, without any greater specificity.
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settlement agreement), and shut off her microphone, left the stage, and summoned police after
she “briefly exceeded her speaking time[.]” (Id. ¶¶ 13a-c, e).
The First Amendment, applied to the states through the Fourteenth Amendment, prohibits
the government from “abridging the freedom of speech.” U.S. Const.. amend. I, XIV. In the
speech context, a plaintiff “cannot defeat qualified immunity simply by arguing that they have a
clearly established right not to suffer an ‘abridgement’ of the ‘freedom of speech’” because it
does not alert a government official “of the First Amendment’s limits in the specific situations
that they confronted.” DeCrane v. Eckart, 12 F.4th 586, 599 (6th Cir. 2021), quoting U.S. Const..
amend. I.
Free speech protections vary depending on the type of speech and forum where the
speech occurs. Ison v. Madison Loc. Sch. Dist. Bd. of Educ., 3 F.4th 887, 892 (6th Cir. 2021).
Indeed, “free speech” does not protect all speech. E.g., Schenck v. United States, 249 U.S. 47, 52
(1919) (“The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic.”). And in a limited public forum such as a public school
board meeting, government officials may “‘regulate’” speech “through ‘time, place, or manner’
restrictions” as long as those restrictions are unrelated to the content of the speech. Ison, 3 F.4th
at 893, quoting McCullen v. Coakley, 573 U.S. 464, 477 (2014).
And the First Amendment protects a citizen’s right to make a public-records request, but
it does not compel disclosure of the underlying records. Spithaler, 803 F. App’x at 829. Again,
“‘neither the First Amendment nor the Fourteenth Amendment mandates a right of access to
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government information or sources of information within the government’s control.’” Phillips,
841 F.3d at 418, quoting Houchins,438 U.S. at 14-15.
Finally, regarding the retaliation element, “a plaintiff must prove a causal connection
between the protected conduct and the adverse action.” Vereecke v. Huron Valley Sch. Dist., 609
F.3d 392, 400 (6th Cir. 2010). “Bare allegations of malice do not suffice to establish a
constitutional claim.” Id., quoting Crawford-El v. Britton, 523 U.S. 574, 588 (1998) (internal
marks omitted).
To overcome qualified immunity at this stage, Moles, must still plead her factual
allegations with enough particularity to demonstrate to the Individual Defendants that their
actions violated Moles’ “clearly established” rights at the time those actions were taken. Moles’
Amended Complaint again fails to plead with specificity. As for the speech itself, she provides
few specifics, except that, for example, she “voiced concerns regarding district transparency,
administrative accountability, and student welfare.” (Id. ¶ 9). Moles also states, without more,
that her public records requests raised “matters of public concern” such as “board policy,
financial oversight, and school practices.” (Id. ¶ 10).
Reading her Amended Complaint and her opposition briefing together, it appears that
Moles is claiming that the Individual Defendants engaged in impermissible viewpoint
discrimination, and further continued abridging her First Amendment rights in retaliation. In her
opposition brief, Moles cites Ison, 3 F.4th at 984-97 for the proposition that it invalidated
“school-board restrictions silencing speakers based on viewpoint.” (ECF Doc. 24, p. 3). This
correctly states the legal premise provided in Ison, but her factual allegations, in the Amended
Complaint or otherwise, make no mention of any viewpoint expression underpinning this claim.
(See generally Am. Compl.; see also ECF Doc. 24, p. 3 (naming only a time-limitation
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restriction at a public board meeting, and that two public records requests were denied and
eleven others resolved by settlement negotiations)). To the contrary, Moles states that she was
allowed to speak publicly at Board meetings and correspond privately with the Individual
Defendants (presumably in their capacities as public officials), she was an active parent in school
activities, she was permitted to chaperone after successfully completing a background check, and
she was permitted to speak during a public board meeting for her allotted time. (See generally
Am. Compl.). My review does not disclose that any actions were taken because of the content of
her speech. (See id; see also ECF Doc. 24, p. 3). Defendants, in their Amended Answer, admit
that Moles attended public Board meetings, and that she submitted formal public records
requests in the years alleged. (ECF Doc. 17, Am. Ans., ¶¶ 10-12). Defendants provide additional
contextual statements that do not contradict the allegations in Moles’ Amended Complaint: the
denial of public records requests was based on their legal insufficiency or were otherwise barred
by a settlement agreement; that she violated the rules in place for Board meetings; and that
revised school policy required her to submit and pay for a background check to chaperone a
school dance. (Am. Ans., ¶¶ 18-20). On these allegations of fact, there is no disagreement.
(Compare Am. Compl. with Am. Ans.).
But, as before, Moles has not provided the requisite particularity in her allegations to
point out where any Defendant has violated clearly established precedent such that a reasonable
official would have known the illegality of their actions. I find myself searching for specifics
within Moles’ Amended Complaint, and come up wanting. To provide Moles her due as the non-
moving pro se plaintiff, and with only the pleadings before me, I consider the question of
qualified immunity with as much specificity as I can determine from her Amended Complaint,
supported by her briefing. I therefore find that Moles has failed to overcome the “clearly
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established” prong as to Count I – First Amendment Retaliation. I recommend the District Court
grant Defendants’ Motion and Count I – First Amendment Retaliation be dismissed on qualified
immunity grounds.
2. Counts II and III – Equal Protection and Due Process
The next two claims are founded on Moles’allegations regarding her exercise of protected
speech. (See generally ECF Doc. 12, Am. Compl.). She argues she was not afforded her
Fourteenth Amendment right of equal protection when she was cut off from speaking at a public
board meeting after she exceeded time limits, and that her public records requests were denied
where others were not, thus, she challenges the Individual Defendants’ “selective enforcement”
of their rules against her as “without rational basis, driven by animus toward [her] viewpoint.”
(ECF Doc. 24, p. 4). For her procedural due process claim, she also states that actions such as
those at the board meeting or accusations of financial misconduct “imposed reputational stigma
while altering [her] legal status . . . without notice or a hearing.” (Id.).
With respect to the equal protection claims, Moles must show that she was intentionally
treated differently than others similarly situated without any rational basis for the difference.
E.g., Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 682 (6th Cir. 2011). With respect to
her allegation that she was not permitted to exceed time limits during public board meetings,
Moles has not shown either that she was intentionally treated differently, or that there was no
rational basis for the difference. The alleged restrictive actions by the Individual Defendants
appear to be content-neutral means of placing reasonable restrictions on speech to serve a
significant government interest, as an official is permitted to do. Ison, 3 F.4th at 895-96
(upholding pre-registration requirement for individuals to speak at school board meetings,
because there is a significant government interest in efficiently structuring board meetings to
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allow all speakers the chance to have their voices heard, and the restriction was narrowly tailored
to serve that interest). As the name suggests, government officials are permitted to restrict the
“time” given for a person to exercise their freedom of speech, provided it is content-neutral and
is narrowly tailored to serve a government interest – and time restrictions, intended to ensure
orderly public meetings so that all attendees may speak, satisfy this standard. Id. Likewise,
Moles makes no factual allegations that her public records requests lacks a rational basis; she
later clarifies in her briefing that eleven were restricted by a prior settlement agreement, and two
were denied as legally insufficient or unavailable as requested. (ECF Doc. 12, Am. Compl.
¶ 13c; see also ECF Doc. 24, p. 3). Seemingly, Moles’ view is that the neutral restrictions
Defendants placed on speech generally were pointed only to her, based on animus and without
rational basis. However, as before, she fails to allege facts to support her constitutional claims
generally, and these claims still cannot survive on qualified immunity grounds, where there is the
additional question of whether those rights were “clearly established” in a way that a reasonable
official would understand the unlawfulness of their actions. Moles has not alleged sufficient facts
for her equal protection claim to survive the qualified immunity analysis.
With respect to her due process claim, Moles must show that she (1) had a life, liberty, or
property interest protected by the Due Process Clause; (2) she was deprived of this protected
interest; and (3) the Individual Defendants did not afford her adequate procedural rights. E.g.,
Daily Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014). In the qualified immunity
context, this means that “the ‘clearly established law’ inquiry should ask whether a reasonable
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official would understand that the plaintiff was entitled to notice and an opportunity to heard”
before the official deprived her of that interest. Id. at 903.
But, as explained above, Moles has not alleged facts to show that she had a protected
interest in her reputation alone, or that the actions taken against her caused the deprivation of that
interest. Her alleged interest in her reputation, standing alone, sounds in tort. Paul, 424 U.S. at
712. She does not allege facts to show that she had a constitutionally protectable liberty or
property interest; therefore, she has not shown that any Individual Defendant would understand
that she was entitled to notice and an opportunity to be heard before causing harm to her
reputation by calling the police, whether their reasoning was substantiated or not.
Moles’ Amended Complaint fails to allege with particularity how her “clearly
established” Fourteenth Amendment rights of equal protection and due process were violated in
a way that the Individual Defendants would have clearly understood the unlawfulness of their
actions, given the specific situations they confronted. And furthermore, the allegations fail to
show that the Individual Defendants acted in a way that was based on animus to Moles
specifically, under her ‘class of one’ theory.
Rather, it appears that the Individual Defendants acted within well-understood
constitutional bounds. The Individual Defendants – and the Board – applied reasonable
restrictions on certain actions (e.g., time allotted at public meetings, prerequisites for
chaperoning school events) and applied them to her as she alleges they did to other adults (her
adult daughter or all other parents, depending on the chaperone policy at issue) or other
community members (as with the time limits or her public records requests). Her factual
allegations do not demonstrate otherwise. And the First Amendment protects Moles’ ability to
make a public records request, but it does not compel the government to disclose those records.
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Houchins, 438 U.S. at 14; see also Spithaler, 803 F. App’x at 829. Moles therefore does not
allege facts to show that the Individual Defendants violated her equal protection or due process
rights. I therefore recommend that the District Court grant Defendants’ Motion and dismiss
Counts II and II on qualified immunity grounds.
3. Counts IV – Civil Rights Conspiracy
For the reasons discussed in Section A, above, Count IV fails as a matter of law. The
Civil Rights Conspiracy claim fails based on the intracorporate conspiracy doctrine, because all
Individual Defendants are members or employees of the same school board. Therefore, even
presuming these claims would survive the motion for judgment on the pleadings, qualified
immunity would still protect the Individual Defendants from suit, because Moles has not shown
that any Individual Defendant acted outside of “clearly established” law. Indeed, she has not
shown, nor could she, that any individual defendant acted at all – because again, all actions are
deemed made by the same legal entity.
Although dismissal on qualified immunity grounds may be premature in some instances,
that is not the case here. One of the goals of qualified immunity is not only to help defendants
avoid unnecessary trials but also to allow defendants to avoid pre-trial discovery where the
lawsuit is “insubstantial.” Harlow, 457 U.S. at 808. And a motion for judgment on the pleadings
provides a mechanism for defendants to avoid pre-trial discovery. See Crawford, 15 F.4th at 763-
64, quoting Behrens v. Pelletier, 516 U.S. 299, 308 (1996). The Supreme Court has explained
that the “driving force behind . . . qualified-immunity principles” is that “insubstantial claims
against government officials be resolved prior to discovery . . . if possible.” Anderson, 483 U.S.
at 640 n.2. Therefore, dismissal on qualified immunity grounds remains proper, even at the
pleadings stage. Rondigo, L.L.C., 641 F.3d at 684 (reversing and remanding district court’s
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denial because plaintiffs’ claims were “ripe for dismissal under the doctrine of qualified
immunity at the earliest possible stage in the litigation.”).
I therefore recommend the District Court grant their Motion and dismiss Counts I-IV
against the Individual Defendants.
D. Statute of Limitations
Defendants also assert that any of Moles’ claims alleging conduct prior to May 15, 2023
are barred by the two-year statute of limitations that applies to Section 1983 claims. (ECF Doc.
18, pp. 11-13). Defendants argue that, whether counting by the “occurrence rule” or the
“discovery rule,” any claim alleged to have occurred before May 15, 2023 is time-barred. (Id.,
quoting Norman v. Cincinnati, 2025 WL 815724, *7 (S.D. Ohio Mar. 13, 2025)). Defendants
state that the Sixth Circuit does not apply the “continuing violation” principle in Section 1983
claims, thus, any discrete alleged action barred by the statute of limitations remains barred, even
if related to acts not time-barred. (ECF Doc. 18, p. 20, n.1, quoting Henley v. Tullahoma City
Sch. Sys., 84 F. App’x 534, 539 (6th Cir. 2003)).
In response, Moles asserts that her Amended Complaint “alleges both discrete acts (e.g.
the 2022 police intervention at a board meeting and exclusion from PAK leadership) and
ongoing retaliatory practices (improper denials of records requests in 2024-25 and retroactive
policy changes).” (ECF Doc. 24, p. 2, citing Kuhnle Bros., Inc. v. Geauga Cnty., 103 F.3d 516,
522 (6th Cir. 1997)). Thus, her allegations contain both fresh, repeated First Amendment injuries
and an ongoing course of retaliation by Defendants, rendering all of Moles’ constitutional claims
timely. (ECF Doc. 24, p. 2). In any event, should acts from 2022 and 2023 be considered
untimely, Moles argues they remain admissible as background evidence of motive and pattern.
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(Id.; ECF Doc. 27-1, p. 2, citing to Nat’l RR Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)).
Section 1983 does not itself provide a statute of limitations; federal courts must borrow
from applicable state statutes governing personal injury actions in the state in which the Section
1983 action was brought. Owens v. Okure, 488 U.S. 235 (1989); Wilson v. Garcia, 471 U.S. 261,
275-76 (1985). In Ohio, the Sixth Circuit has identified Ohio Revised Code § 2305.10 as the
applicable statute, conferring a two-year statute of limitations on Section 1983 claims brought in
federal courts here. Banks v. City of Whitehall, 344 F.3d 550, 554 (6th Cir. 2003); see also
Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 519 (6th Cir. 1997) (rejecting application of
O.R.C. § 2305.09(D)’s four-year statute of limitations and reaffirming application of a two-year
statute of limitations in Section 1983 actions in federal district courts in Ohio).
“The date on which the two-year statute of limitations begins to run in a § 1983 action is
a question of federal law.” Kuhnle Bros., Inc., 103 F.3d at 520. The Sixth Circuit has suggested
that the “discovery rule” applies, i.e., “when the plaintiff knows or has reason to know” of the
injury forming the basis of their action. Id. (internal quotations and marks omitted); see also
Reguli v. Russ, 109 F.4th 874, 879-80 (6th Cir. 2024). The “discovery rule” applied in the Sixth
Circuit “postpones the limitations period to the date that the plaintiff discovered, or reasonably
should have discovered, basic facts about the claim.” Reguli, 109 F.4th at 879-80. And “the
discovery rule begins once a plaintiff learns of an injury from the defendant's conduct—even if
the plaintiff does not discover the ‘full extent of the injury’ until later.” Id., quoting Wallace v.
Kato, 549 U.S. 384, 388 (2007) (emphasis in original). Conversely, the Supreme Court has
applied the “occurrence rule” in Section 1983 statute-of-limitations determinations. Reguli, 109
F.4th at 883 (comparing approaches to determining the running of the statute of limitations in
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Section 1983 cases). This approach “starts the limitations period when the plaintiff has ‘a
complete and present cause of action’” i.e., the limitations period is triggered “on the first day
that every element of a claim has occurred such that the plaintiff may sue in court over the
claim.” Id. at 879, quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp.
of Cal., Inc., 522 U.S. 192, 201 (1997).
When considering whether the injuries form a “continuing violation” for purposes of
surviving the statute of limitations, the injury must be of the type that inflicts “continuing and
accumulating harm.” Id., quoting Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481,
502 n.15 (1968). And “a continuing violation is occasioned by continual unlawful acts, not
continual ill effects from an original violation.” Tolbert v. State of Ohio Dept. of Transp., 172
F.3d 934, 940 (6th Cir. 1999), quoting Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1166
(4th Cir. 1991). The Sixth Circuit has adopted the following three-part test to determine whether
a continuing violation exists: first, the defendant’s wrongful conduct must continue after the
precipitating event that began the pattern; second, injury to the plaintiff must continue to accrue
after that event; third, further injury to the plaintiff could have been avoided if the defendant had
at any time ceased their wrongful conduct. Tolbert, 172 F.3d 934, 940 (6th Cir. 1999).
Notwithstanding the above, the statute of limitations is an affirmative defense, see Fed. R.
Civ. P. 8(c)(1), and a plaintiff need not plead the lack of affirmative defenses to state a valid
claim. Jones v. Bock, 549 U.S. 199, 216 (2007); see also Fed. R. Civ. P. 8(a). As such, dismissal
at the pleadings stage is generally inappropriate for dismissing a claim based on the statute of
limitations. Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (motions under Rule
12(b)(6) are generally an inappropriate vehicle for dismissing based on a statute of limitations
defense); Bruce v. City of Miamisburg, No. 3:21-CV-00080, 2021 WL 4479506, at *4 (S.D.
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Ohio Sept. 30, 2021) (applying same to a Rule 12(c) motion in Section 1983 action). But where
the allegations in the complaint affirmatively show that the claim is time-barred, dismissal on the
pleadings may be appropriate. See Jones, 549 U.S. at 215 (“If the allegations . . . show that relief
is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure
to state a claim[.]”). Thus, whether dismissal is appropriate “depends on whether the allegations
in the complaint suffice to establish that ground” concretely, id., or whether further factual
development is warranted. Bruce, No. 3:21-CV-00080, 2021 WL 4479506, at *4.
For the reasons given in more detail in the previous sections, Moles’ Amended Complaint
does not provide sufficient factual allegations to support – or in this case, dismiss – her claims.
Whether applying the discovery rule or the occurrence rule, or whether the alleged conduct
results in a continuing violation, all require a more fact-specific inquiry than is available on the
face of the pleadings. Certain claims are undated, and the remaining reference only the years in
which they occurred. (See ECF Doc. 12, Am. Compl., ¶¶ 13(a)-(g)). Defendants’ Answer and
Affirmative Defenses does little to clarify these dates or when the claims may have been
discovered and/or accrued. (See generally ECF Doc. 14, Am. Ans.). Based only on the dates
asserted, it appears that the only claim that might survive the statute of limitations are the public
records requests placed in 2024 and 2025. However, Defendants assert that a settlement
agreement dated June 14, 2023, bars Moles’ claims. (Id. at p. 9, ¶ 15). These factors obscure the
determination of the statute of limitations, and thus, at this stage, does not appear to be the
appropriate course for dismissal. See Jones, 549 U.S. at 215.
This is not to say that Defendants’ statute of limitations defense will not later win the
day, should the District Court disagree with the other portions of this Report and
Recommendation and permit Moles to survive the motion for judgment on the pleadings. But,
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the Court has little before it. Should any claim be dismissed on statute of limitations grounds,
additional factual development is needed to make that determination.
I therefore recommend in the alternative, should the District Court disagree with the
recommendation of dismissal, that Defendants’ dismissal on statute of limitations grounds be
denied.
VI. Further Amendments Will Not Lead to Meritorious Constitutional Claims
Moles now argues in her sur-reply in opposition to Defendants’ Motion for Judgment on
the Pleadings that dismissal with prejudice is unfounded and she should be permitted to clarify
her factual allegations through amendment. (ECF Doc. 27-1, p. 3). She now requests, without
formal motion, that she should be granted leave to amend as an alternative to dismissal. (Id.).
As Rule 8(e) instructs, I must construe the pleadings to do justice. And Moles receives
the benefit of construction in her favor, both as a pro se plaintiff and as the non-moving party.
See, e.g., El Bey, 500 F.3d at 413. But even though Rule 8 is not “hypertechnical” in its pleading
requirements, it “does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Iqbal, 556 U.S. at 678-79. A complaint does not meet this standard “if it
tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Id. at 678, quoting Twombly,
550 U.S. at 557. And, “at the pleading stage, ‘general factual allegations of injury resulting from
the defendant’s conduct may suffice,’” but “it is still necessary to include some ‘well-pleaded
factual allegations’ to support the claim. Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir.
2011), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) and Iqbal, 556 U.S. at
679.
Generally, “if it is at all possible” that a plaintiff “can correct the defect in the pleading or
state a claim for relief, the court should dismiss with leave to amend.” Brown, 415 F. App’x at
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614 (internal quotations and marks omitted). This is particularly preferable “where deficiencies
in a complaint are attributable to oversights likely the result of an untutored pro se litigant’s
ignorance of special pleading requirements.” Id. at 614-15 (internal quotations and marks
omitted). Courts also consider whether a pro se plaintiff is aware of the applicable rules of
amendment, and whether it is amendment of an initial complaint. See Gordon v. England, 354 F.
App’x 975, 981 (6th Cir. 2009) (remanding to the district court to allow pro se plaintiff
opportunity to amend her initial complaint where she may not have been aware of the
requirements under Fed. R. Civ. P. 15). Even so, granting leave to amend is not required in every
case. Id. at 981-82. Dismissal with prejudice is permitted if a court “determines that the pleading
could not possibly be cured by the allegation of other facts.” Brown, 415 F. App’x at 615.
Here, even though she is proceeding pro se, Moles has shown she is aware of Civil Rule
15 and the possibility to amend her complaint. She has previously used that rule to amend her
initial complaint to add additional parties and claims. (Compare ECF Doc. 1 and attachments
with ECF Doc. 12). Even so, she has not moved for leave to amend, but instead expressed in her
sur-reply that she should be granted leave to amend as an alternative to dismissal with prejudice.
(ECF Doc. 27-1, p. 3). Moles has shown in her filings thus far that she has a sufficient
understanding of the civil rules to advance her case. (See generally Docket). Therefore, granting
further leave to amend is not counseled on this basis.
And even though Moles receives the doubled benefit of construction in her favor as a pro
se plaintiff, and even though she has amended her initial complaint, the factual underpinnings of
alleged wrongdoing remain unclear. I cannot ascertain how Moles’ generalized allegations show
unconstitutional, coordinated conduct by Defendants, either individually or as the Board. The
thrust of Moles’ claims is that Defendants are discriminating against her because of her exercise
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of First Amendment protected speech. (see generally ECF Doc. 12, Am. Compl.). It thus appears
that Count I is the claim from which all other claims flow. (Id.). Still, Moles has not alleged any
facts to show the viewpoint she expressed, that she was deprived of the ability to exercise her
constitutional rights, or that any defendant acted based on discriminatory intent or animus. (Id.).
Rather, all factual allegations of wrongdoing appear to be based in neutral, permissible actions
by Defendants.
I wish to make clear: my recommendation of dismissal with prejudice is not based on
inartful pleadings. Throughout this Report and Recommendation, I have endeavored to provide
Moles her due deference as the pro se plaintiff. With each claim, I have considered whether,
through thoughtful case management procedures and court oversight in discovery proceedings,
Moles might uncover factual support for her current allegations. At any rate, my detailed review
of the claims in the Amended Complaint, coupled with consideration of Moles’ briefings in the
case do not reveal claims that rise to the level of a constitutional violation. With this in mind, it
does not appear that further facts will arise to support any Section 1983 claim against
Defendants.
I therefore recommend the case be dismissed, with prejudice, and without leave to amend.
VII. Conclusion
Having reviewed Moles’ Amended Complaint, I conclude that she has failed to plead
sufficient facts to support her claims, and further factual development through amendment would
be futile. I therefore recommend that Counts I – IV be dismissed with prejudice for failure to
state a claim on which relief can be granted. Count V states a theory of liability and thereby
states no claims. I therefore recommend Count V also be dismissed with prejudice. I further
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recommend that, because the doctrine of qualified immunity protects the Individual Defendants
from suit, Counts I – IV be dismissed with prejudice.
However, should the District Court disagree that Moles’ case be dismissed, I find there
are insufficient facts at the pleadings stage to clearly demonstrate whether the statute of
limitations applies. I therefore recommend in the alternative that the District Court deny
Defendants’ motion with respect to their statute of limitations defense.
Dated: December 18, 2025
REUBEN J. SHEPERD
UNITED STATES MAGISTRATE JUDGE
Objections, Review, and Appeal
Within 14 days after being served with a copy of this report and recommendation, a party
may serve and file specific written objections to the proposed findings and recommendations of
the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28 U.S.C
636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo by the
assigned district judge.
***
Failure to file objection within the specified time may result in the forfeiture or waiver of
the right to raise the issue on appeal either to the district judge or in subsequent appeal to the
United States Court of Appeals, depending on how or whether the party responds to the report
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and recommendations. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be
specific and not merely indicate a general objection to the entirety of the report and
recommendation; “a general objection has the same effect as would a failure to object.” Howard
v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus
on specific concerns and not merely restate the arguments in briefs submitted to the magistrate
judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge
without specific objections ‘wastes judicial resources rather than saving them, and runs contrary
to the purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL
3018175, 2 (W.D. Ky. June 15, 2018) (quoting Howard). The failure to assert specific objections
may in rare cases be excused in the interests of justice. See United States v. Wandashega, 924
F.3d 868, 878-79 (6th Cir. 2019).
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