COURT OF COMMON PLEAS
FRANKLIN COUNTY, OH


Robert A. Neinast
Plaintiff,
v.
Board of Trustees of the Columbus Metropolitan Library, et. al
Defendants.

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Case No. 04CVH-06-6341

Judge Miller




MEMORANDUM CONTRA MOTION FOR ORDER TO
COMPEL DISCOVERY




I. INTRODUCTION

Plaintiff, Robert A. Neinast's September 1, 2004 Motion for Order to Compel Discovery requests that this Court compel Defendants Board of Trustees of the Columbus Metropolitan Library ("the Library") and Patrick Losinski (Executive Director of the Library) (collectively, "the Defendants") to disclose information that he claims will be relevant to the resolution of his current action against the Library.

For several reasons, Mr. Neinast's Motion for Order to Compel Discovery should be denied:

II. RELEVANT FACTS

In a series of incidents beginning on September 12, 1997 and culminating on March 2, 2001, Library personnel requested that Mr. Neinast leave the Library's Main Branch because he refused to wear shoes on the Library premises. (Complaint,1  ¶5-8). Larry Black, then-Executive Director of the Library, had approved and promulgated an Eviction Procedure that, among other things, required Library patrons to wear shoes.

On April 3, 2001, Mr. Neinast filed an action with this Court (captioned 01 CV 04 3104) against the Library, Mr. Black, and Assistant Directory of Security Vonzell Johnson, asserting that (1) the Library's shoe requirement violated his right to freedom of personal appearance under the 14th Amendent and its Ohio analogue, (2) that the policy violated his 1st Amendment right to both express himself and access information in a public place, and (3) that the policy violated his right to equal protection under both the federal and Ohio Constitutions. In addition, Mr. Neinast asserted that the Library's Eviction Procedure violated his right to procedural due process, in that it was "not authorized by State Law" because "[t]he Board has no authority to delegate its rulemaking authority to [Mr.] Black." ( Amended Complaint ¶33-36) (attached as Exhibit C). On May 11, 2001, the Library removed the action to the United States District Court of the Southern District of Ohio. Both parties filed for summary judgment.

After analyzing the parties' cross-motions for summary judgment, District Court Judge Marbley held that all of Mr. Neinast's claims were meritless. With regard to Neinast's procedural due process claim, the Court held:

Plaintiff's remaining procedural argument is that the Board exceeded its statutory authority under O.R.C. § 3375.40, which is its authorizing statute. But this is a question of state law, and mere allegations of state law are not sufficient to state a claim under § 1983. As Neinast's procedural due process arguments are based not on a constitutional right but on state statutory interpretation, they fail to state a claim upon which relief can be granted under § 1983. Q>

Neinast v. Bd. of Trustees, 190 F.Supp.2d 1040, 1047-48 (S.D. Ohio 2002) (internal citations omitted).

On appeal, the Sixth Circuit Court of Appeals affirmed Judge Marbley's decision to grant the Library's Motion for Summary Judgment in its entirety. With respect to Mr. Neinast's procedural due process claims, the Court held:

[T]he issue of whether the Board's delegation of authority to the Executive Director to establish the Eviction Procedures was proper is a matter of state law. Section 1983, upon which Neinast bases his claim, authorizes courts to redress violations of "rights, privileges, or immunities secured by the Constitution and [federal] laws" that occur under color of state law. "The statute is thus limited to deprivations of federal statutory and constitutional rights. It does not cover official conduct that allegedly violates state law." . . . Neinast's claim turns upon a question of state law — namely, the amount of rulemaking authority the Board properly can delegate to its Executive Director under Ohio Revised Code § 3375.40 — and thus falls outside the scope of § 1983. Q>

Neinast v. Bd. of Trustees, 346 F.3d 585, 597 (6th Cir. 2003).

Mr. Neinast now asserts another Complaint against the Library and its Executive Director (Mr. Losinksi, who replaced Mr. Black), this time attempting to raise issues which he had full and fair opportunity to litigate at the federal level. In essence, he asserts that the Library violated its authorizing statute by:

In an effort to support these claims, on July 26, 2004, Mr. Neinast served on Defendants a series of Interrogatories, which requested information regarding a variety of subjects, including: (1) whether the Library employs a cleaning service that indemnifies it for liability against injury lawsuits, (2) a list of lawsuits filed by injured patrons, (3) whether the Library believes that a patron could be harmed by reaching for a book from a Library shelf or wearing high heels in the Library, (4) whether the Library forbids children from crawling on the Library's floor, (5) the Library's belief on how its clientele, management struction, and facilities are similar to those of other entities open to the public, (6) whether the Library believes that bare feet are disruptive, (7) whether the Library has issued instructions to its personnel regarding how to deal with barefoot patrons, and (8) the current address of former Executive Director Mr. Black.

The information Mr. Neinast seeks in these Interrogatories is not reasonably calculated to lead to the discovery of admissible evidence, as required by Ohio Civ. R. 26, both because Mr. Neinast's claim is not cognizable (and therefore any discovery request he makes is outside the scope of discovery) and because the Interrogatories in question could not lead to any admissible evidence supporting the claims he alleges (even assuming the viability of those claims).

III. LAW & ARGUMENT

A. Mr. Neinast's Motion to Compel Should be Denied Because His Claims are Barred by the Doctrines of Res Judicata and Collateral Estoppel

Mr. Neinast's claims are barred by both the doctrines of res judicata and collateral estoppel. He has had an opportunity to litigate these claims in two different fora—the United States District Court and the Sixth Circuit Court of Appeals—and both Judge Marbley and the Sixth Circuit rejected all of the claims he asserted, granting and affirming, respectively, the summary judgment motion of the defendants in its entirety.

It has long been the law of Ohio that "an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit." Q> (emphasis added). Rogers v. Whitehall, 25 Ohio St. 3d 67, 69 (1986). Indeed, in National Amusements, Inc., v. Springdale, 53 Ohio St. 3d 60, 62 (1990), the Court stated that, the doctrine of res judicata requires a plaintiff "to present every ground for relief in the first action, or be forever barred from asserting it." Q>

Under the doctrine of res judicata, "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Q> Grava v. Parkman Twp., 73 Ohio St. 3d 379 (1995). Whether the original claim "explored all the possible theories of relief is not relevant." Q> See Brown v. City of Dayton, 89 Ohio St. 3d 245, 248 (2000).

Although Neinast may argue that Judge Marbley and the Sixth Circuit, in determining that O.R.C. § 3375.40(H) was not a proper subject for Mr. Neinast's claims under 28 U.S.C. § 1983, held that this claim turned "on a question of state law," Q> see Neinast, supra, 346 F.3d at 597, neither court remended any issues of state law for determination. In short, they simply dismissed plaintiff's claims in their entirety. Neinast's claims therefore are barred by the doctrine of res judicata. See, e.g., Victor Mortg. Co. v. Arnoff, 120 N.E.2d 615, syllabus at 3, (Cuyahoga C.C.P. 1952) (The rule in such cases is that "when two causes of action are brought and a journal entry disposes of one but does not dispose of or mention the other, the silence of the journal entry as to the second is considered as dismissing it, and such dismissal is res adjudicata." Q>); Lehmann v. Har-Con Corp., 39 S.W. 3d 191, 197 (Tex. 2001) ("where the pleadings and judgment in evidence show that the pleadings . . . put in issue plaintiff's right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause" Q>); Lay Bros., Inc. v. Tahamtan, 236 Ga. App. 435 (1999); Succession of Foster, 240 La. 269, 276 (1960) ("It is true that where a judgment is silent with respect to any demand which was an issue in the case under the pleadings such silence constitutes an absolute rejection of such demand" Q>).

In short, Mr. Neinast has already had an opportunity to present his present claims before two competent tribunals, both of which dismissed his claims in their entirety. The law absolutely bars him from relitigating claims that arise from the same series of transactions. Because he is not entitled to discovery in support of claims that the law bars him from asserting, his Motion for Order to Compel Discovery should be denied.

B. Because Mr. Neinast Has Not Stated A Claim Upon Which Relief May Be Granted, His Requests Are Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence

Even assuming that Mr. Neinast's claims are not barred by the doctrine of res judicata, the Court should reject his demand for discovery because he has not asserted a claim upon which relief may be granted.

Mr. Neinast's claim appears to be a request for declaratory judgment under Ohio's Declaratory Judgment Act, O.R.C. § 2721.01 et. seq. In order to maintain such an action, a party must show: (1) that a real controversy exists between the parties, (2) which is justiciable in character, and (3) that speedy relief is necessary to the preservation of rights which may be otherwise impaired or lost. See Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St. 2d 93, 97 (1973). A "real, justiciable" controversy is a "genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Q> Wagner v. Cleveland, 62 Ohio App. 3d 8, 13 (Cuyahoga 1988). Courts of record may declare "rights, status, and other legal relations, subject to [specific exceptions], whether or not further relief is or could be claimed." Q> O.R.C. § 2721.02(A).

A judge may dismiss an action for declaratory judgment without addressing the merits of the case under two circumstances: "(1) there is neither a justiciable issue nor an actual controversy between the parties requiring speedy relief to preserve rights which may otherwise be lost or impaired; or (2) . . . the declaratory judgment will not terminate the uncertainty or controversy." Q> East Cleveland Firefighters, Local 500 v. Civil Serv. Comm'n, 2000 Ohio App. LEXIS 6023, 15-16 (Cuyahoga 2000).

Under these standards, no justiciable issue exists in this case, nor does any controversy exist between "the parties requiring speedy relief to preserve rights which may otherwise be lost or impaired." Both tests require "the existence of a legal interest or a right" in the subject matter of the potential declaration. See In Defense of Deer v. Cleveland Metroparks, 138 Ohio App. 3d 153 (Cuyahoga 2000); see also Wilburn v. Ohio Dep't of Rehab & Corr., 2001 Ohio 4047 (Franklin 2001) (an inmate's declaratory judgment challenge to a parole board's use of new sentencing guidelines was improper, because the inmate had no right or legal interest in parole.).

The only "right" even arguable impaired by the Library's decision to promulgate the barefoot rule is Mr. Neinast's asserted right to use the Library barefoot. Both the Sixth Circuit and Judge Marbley, however, have held that such a right does not exist, rejecting Mr. Neinast's theory that such a right resides in terms of the First, Fifth, Ninth, and Fourteenth Amendments, as well as under multitudinous other authorities. Where, as here, the plaintiff retains no legal interest or right in either the subject or the process of the allegedly offending regulation, his claim for declaratory judgment must be rejected.3 

As a result, no discovery request Mr. Neinast makes in support of his claims in this case could be reasonably calculated to the discovery of admissible evidence. No evidence exists (or can exist) which would make his claim cognizable.

C. Even Assuming that Neinast Has Stated A Claim Upon Which Relief May Be Granted, His Requests Are Not Reasonably Calculated To Lead to the Discovery of Admissible Evidence

Finally, even assuming that Mr. Neinast has stated a claim upon which this Court may grant relief, and that that claim is not barred uder the res judicata doctrine, his requests are nonetheless outside the scope of discovery. Ohio Civ. R. 26(B) describes the scope of discovery: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . ." "Relevant" subject matter includes information not admissible at trial but "reasonably calculated to lead to the discovery of admissible evidence." Id. None of Mr. Neinast's requests meets these criteria.

Mr. Neinast's claims are based on O.R.C. § 3375.40, which states, in relevant part:

(H) [The Board of Trustees shall] [m]ake and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, including rules pertaining to the provision of library services to individuals, corporations, or institutions that are not inhabitants of the county[.]

O.R.C. § 3375.40.

As Mr. Neinast explains his claims, the Library has allegedly violated this provision in two ways: (1) by promulgating the barefoot rule, and (2) by delegating rulemaking authority to its Executive Director. The Defendants have admitted in the Answer that the Library has a rule preventing patrons from visiting Library facilities barefoot, and that the rule, in one of its previous iterations, was promulgated by Executive Director Larry Black.

The only analytical question in this case, then, is one of statutory constrution: did the Ohio legislature, when it promulgated O.R.C. § 3375.40(H), intend that the Board of Trustees, in promulgating rules for the "proper operation and management of the library," have the ability to delegate its rulemaking authority and / or create a regulation like the barefoot rule? If the legislature intended for the scope of Board of Trustee's authority to extend thus far, the Library prevails. If the legislature did not intend that result, Mr. Neinast prevails.

Statutory construction, like that for which Mr. Neinast now calls, provides a question of law, not of fact. See City of Cincinnati v. Timberline Props., 113 Ohio App. 3d 329, 330 (Hamilton 1996); Security Ben. Life Ins. Co. v. Robinson, 106 Ohio App. 121 (Franklin1957). The key determination in such statutory construction is, of course, the legislative intent behind the statute. See State ex rel. Wolfe v. Delaware Cty. Bd. of Elections, 88 Ohio St. 3d 182 (2000); State ex rel. Purdy v. Clermont Cty. Bd. of Elections, 77 Ohio St. 3d 338 (1996).

Even a cursory examination of Mr. Neinast's interrogatories, and the reasons advanced in his Memorandum for Order to Compel Discovery for posing them, reveals that Mr. Neinast is operating under the curious theory that the intent of the Ohio legislature in passing O.R.C. § 3375.40 may be ascertained by examining the beliefs, practices, and statements of the Library and its personnel. In other words, Mr. Neinast is contending that this Court, to determine what the legislature intended with respect to a particular regulation, examine the beliefs of those the statute regulates. Such claim simply makes no sense.

In Interrogatories 7, 10, 16, 17, Mr. Neinast, for example, seeks information regarding the Library's views of various potential hazards in Library facilities, as well as its opinion on the disruptiveness of bare feet:

Mr. Neinast contends that these interrogatories "all reach directly to the issue of whether a shoe rule is a more or less probable part of the proper operation and management of a library . . . and whether the legislative grant of authority is intended to cover that scope. . . ." (Motion for Order to Compel Discovery at 4). He contends that, "if the scope of the legislative grant of the Library to protect the safety of its patrons by banning high-heels, then it is more probable that the scope also includes the authority to ban bare feet." (Id.). Similarly, he contends that Interrogatory 7 is "admissible evidence making it more or less probable that a shoe rule is part of the proper operation and management of a library."

The issue in this case, however, is the scope of the legislative grant of authority to the Board of Trustees, and his interrogatories are designed to discover what the Library considers the proper scope of its authority. Such information—whatever its substance—is irrelevant to the only issue in this case: what the legislature intended. In short, no answer that the Library could give to these requests would make it more or less likely that the legislature intended to grant the Board of Trustees the ability to promulgate a regulation like the barefoot rule.4 

Mr. Neinast also poses a number of interrogatories requesting that the Library compare itself to other institutions:

Again, it is irrelevant whether the Library believes it is similar to other institutions. It is also irrelevant whether these institutions have promulgated a barefoot rule like the Library's. Those institutions are not governed by O.R.C. § 3375.40(H). Their authority, and whether they are authorized to promulgated a barefoot rule, is the subject of other grants of legislative authority. Although a comparison of the authorizing statutes which govern these entities might be useful in determining the scope of the Board of Trustee's authority (assuming that the authorizing statute are analogous), it is simply irrelevant to the issue of legislative intent whether the Library believes that it is similar to these entities or not.

In Interrogatories 3 and 5, Mr. Neinast requested that the Library provide information related to its potential liability from barefoot patrons:

In support of his motion to compel answers to these interrogatories, Mr. Neinast writes that the answers will reveal "the legislative intent of 'proper operation and management." (Motion for Order to Compel Discover at 6). As an example, he states that "if there have been many lawsuits by injured barefoot patrons, then it is more probable that the Legislature considered these concerns a real problem and [sic] should be included in 'proper operation and management.'" (Id.).

Again, Mr. Neinast acknowledges that the issue in this case (if there is one) is the legislative intent behind O.R.C. § 3375.40(H), while simultaneously arguing that the legislative intent behind the statute can be determined by examining the actions and beliefs of those that the statute regulates. This contention is unsupported in both law and logic, and must be rejected.

Mr. Neinast argues that the Defendants should be required to answer Interrogatory 8, which asks if "the library has issued instructions to personnel . . . on how to deal with barefoot patrons." Mr. Neinast contends that this information is relevant to demonstrate "whether the Library was negligent in depriving [Mr. Neinast] of his right to use the Library." The claim in this case, however, is not negligence. Instead, it is solely based on interpretation of O.R.C. § 3375.40. No information that the Library could possibly provide to this question would have any bearing on how the Court should construe the statute.

Finally, Mr. Neinast contends that the Defendants should be compelled to answer Interrogatory 20 by revealing the current address of retired Executive Director Larry Black. The information, however, simply is not relevant. Although the Eviction Procedure that Mr. Black promulgated is no longer truly a part of this case, even assuming that the Eviction Procedure is still at issue, Mr. Black can have no knowledge regarding the legislative intent behind O.R.C. § 3375.40. While he may have some knowledge about his own promulgation of the rule and the Library's institutional viewpoint of its own authority, such information is simply not relevant to a determination of how the statute itself should be construed.

IV. CONCLUSION

Accordingly, for all the reasons outlined above, no basis exists for Mr. Neinast's motion to compel. He has neither advanced a legally cognizable claim nor actually requested information that would be relevant to the claim he has asserted. Defendants, there, respectfully request that Mr. Neinast' Motion be denied.

  Respectfully submitted,
_______________________
Philomena M. Dane (0044064)
Johnathan E. Sullivan (0072371)
Squire, Sanders & Dempsey L.L.P.
1300 Huntington Center
41 South High Street
Columbus, OH 43215
(614) 365-2700

Attorney for Defendants
Board of Trustees of the Columbus
Metropolitan Library and Patrick A.
Losinski


CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Memorandum Contra Motion for Order to Compel Discovery was served by regular U.S. mail, postage prepaid, upon Robert A. Neinast, Plaintiff, 8617 Ashford Lane, Pickerington, Ohio 43147, this 20th day of September, 2004.


  /s/   P. M. Dane




Footnotes:

1. All citations to "Complaint," unless otherwise noted, refer to the Complaint in this action, and not to Mr. Neinast's previous Complaints against the Library and its Executive Director. [Back]

2. The Library Board of Trustees, on or about August 26, 2004, passed a new Code of Conduct governing patrons which incorporates a barefoot requirement. Presumably, this means that Mr. Neinast is no longer maintaining a claim regarding the earlier delegation of authority that resulted in the Eviction Procedure, and is proceeding solely on the theory that the Library's decision to create a regulation banning bare feet violated O.R.C. § 3375.40(H). The Amended Complaint he filed in conjunction with his Motion for Leave to File Amended Complaint (on September 7, 2004) proceeds only on the basis of the Code of Conduct. [Back]

3. Mr. Neinast has also asserted a claim for monetary damages, presumably under the theory that the Library's alleged violation of O.R.C. § 3375.40 entitles him to such relief. Although Mr. Neinast is attempting to amend his Complaint to omit this claim, it is worth noting that there is in any event no private right of action under O.R.C. § 3375.40 (or any other portion of the Library's authorizing statute). See Miami Valley Hosp. v. Combs, 119 Ohio App. 3d 346, 351-352 (Montgomery 1997) (there is no private right of action under any statute regulating governmental conduct, unless (1) the plaintiff is "the statute . . . create[s] a right in favor of the plaintiff;" (2) "there is any indication of legislative intent . . . to create such a remedy," and (3) such a remedy would be "consistent with the underlying purposes of the legislative scheme." Q>) See also Joseph v. Village of Prospect, 1997 Ohio App. LEXIS 1599, *5 (Marion 1997) (when a statute creates a duty to the public at large, not to individual right or property holders, it "affords no private right of action"). [Back]

4. Frankly, all of the interrogatories to which Mr. Neinast seeks answers appear to be sub rose attempts to compel the Library to admit that its barefoot rule is irrational, unreasonable, or unwarranted. Even if Mr. Neinast obtained such an admission, it would be irrelevant to this Court's construction of O.R.C. § 3375.40, which must rely engage only whether the rule is within the scope of the Board of Trustee's authority, not whether it is wise.

In any event, the Sixth Circuit and Judge Marbley have already held that the barefoot rule is narrowly tailored to serve a significant governmental interest" for purposes of constitutional analysis. See Neinast v. Board of Trustees, supra, 346 F.3d at 593-94. Mr. Neinast cannot relitigate this issue. [Back]