I.
JOURNAL ENTRY
GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT (filed Sept. 8, 2004), and
DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY
(filed Sept. 1, 2004)

II.
AMENDED CASE SCHEDULE IN LIGHT OF AMENDED COMPLAINT

Plaintiff, acting pro se, has sought leave to file an "Amended Complaint for Declaratory Judgment and Permanent Injunction" seeking thereby to focus his case upon whether, under Ohio Revised Code §2721.02, the Board of Trustees of the Columbus Metropolitan Library has statutory authority to adopt regulations requiring Library patrons to wear shoes, as the Board purported to do on August 26, 2004. On that date the Board allegedly enacted a new Customer Code of Conduct. (Tendered Amended Complaint, ¶19 on page 4, and ¶ A on page 5.) Although technically speaking the Plaintiff seeks to file a Supplemental Complaint under Civ.R. 15(E), to avoid confusion his pleading is referenced herein as the "Amended Complaint." The different is not insignificant. Supplemental pleadings (as opposed to "amended" pleadings) are used to address matters which only arise following the original filing of a lawsuit. This case began in June, 2004, and as noted the focus is now sought to be shifted to Board action taken two months later.

The Ohio Rules of Civil Procedure instruct trial courts to permit supplemental pleadings "upon such terms as are just."

The relief sought in the tendered Amended Complaint is limited to declaratory judgment concerning the authority of the Library Board, plus injunctive relief if the Court were to conclude that the Board lacked authority to adopt the Consumer Code of Conduct. The Court will permit the Complaint to be supplemented as Plaintiff has requested. This case will proceed using the so-called "Amended Complaint" attached to Plaintiff's Motion as the agenda for further adjudication.

Since this case will proceed on a more narrowly focused basis, the Court regards factual questions concerned with prior episodes involving the Plaintiff (as set forth in ¶¶ 4 - 14, and 16-18 of the Amended Complaint,) as intended only to establish Plaintiff's standing to sue in order to seek declaratory and injunctive relief. The facts alleged in those paragraphs of the Amended Complaint are, otherwise, unrelated to the legality of the Board's action in August, 2004. Moreover, alleged conduct of former Library Executive Director Larry Black prior to his retirement (¶ 3, 8, 11-13, 22,) is, for present purposes, irrelevant.

The factual matters concerning which Plaintiff sought pretrial discovery before he sought leave to amend his Complaint, and as to which he filed a Motion to Compel Discovery on Sept. 1, 2004, largely address hypothetical situations, (such as whether there is some evidence that bare-footed patrons distract or endanger other patrons,) or seek things like the address of now-retired Director Larry Black. Given the Court's decision to allow the Plaintiff to re-focus his case as described above, which the Plaintiff no doubt seeks to avoid arguments of res judicata and collateral estoppel, the Court does not believe that the pre-trial discovery sought is appropriate or likely to lead to admissible evidence. Indeed, hauling a retired Executive Director back into this matter would be an annoyane, and clearly falls outside the scope of proper pretrial discovery. See, Civ.R. 26(C).

In short, Plaintiff's Motion for leave to file his Amended Complaint is GRANTED but Plaintiff's Motion to Compel Discovery is DENIED.

Exercising the Court's authority to control the further proceedings in this matter under Rules 15(E) and 16, the Court changes the Case Schedule in the following manner:

1.      Plaintiff's Amended Complaint is deemed filed as of the date of this Journal Entry; Defendants shall move or plead to that Amended Complaint on or before April 15, 2005.

2,      Neither side may take any discovery on the Amended Complaint without the prior permission of this Court.

3,      Defendant shall file any Motion for Summary Judgment, addressing either or both of the following issues, on or before April 29, 2005:

A) Whether as a matter of Ohio law the Board had the authority to adopt the Consumer Code in August, 2004?

B) Whether the decision of the Southern District of Ohio, as affirmed by the United States Court of Appeals for the Sixth Circuit, addressed the scope of the Board's authority under Ohio law to adopt governance policy such as the Consumer Code, and collaterally estoppes the re-litigation of that precise legal question in this case?

As is evident from the foregoing, the Court has tentatively concluded that State law issues were not adjudicated by the federal courts, (but that everything else relevant to Plaintiff's claims was decided adversely to him.) The Court is not persuaded "that Mr. Neinast could have asserted the claim in his current complaint in the previous litigation" ^Q> as is argued by the Defendants at page 5 of their Sept. 5, 2004 Memorandum opposing amendment of the Complaint. Here, the Court understands, it is presented with a narrow question framed around the Consumer Code adopted subsequent in time to the prior federal lawsuit. Plaintiff would have had to be clairvoyant to anticipate this new Board policy would replace the former "Eviction Policy" adopted only by the Executive Director of the Library.

Further, this Court is not persuaded that the Plaintiff's standing to sue to challenge the new Board policy is lacking. (Defendants' Memorandum at 7-8) Plaintiff clearly pleads a substantial stake in the question. His activities prior to the last suit proved sufficient to support federal court jurisdiction in the prior case. This Library patron who so persistently refused to conform his conduct is, unless his allegations are groundless in fact, entitled to challenge this new Library Code on state law grounds in this state Court. Recognizing his standing to sue is preferable to him continually challenging the Code on site with attendant disruption to Library personnel and, one would think, to other Library patrons who must witness his interactions with security personnel. (E.g., ¶¶ 17-18 of the Amended Complaint.)

4.      Plaintiff may file his own Motion for Summary Judgment on or before April 29. Plaintiff shall respond to Defendants' Motion, if any, within 14 days after it is filed.

5.      Defendants shall submit any Reply Memorandum within 7 days after the Plaintiff's Memorandum in opposition.

6.      In the unlikely event neither side moves for Summary Judgment, this case will proceed to trial on July 28, 2005 as in the original case schedule. If either side moves for Summary Judgment, the July 28 trial date will automatically be vacated pending the Court's ruling(s) on such Motion(s).

In closing, however, the Plaintiff is urged to reconsider the wisdom of continuting this lawsuit. His dispute with the Columbus Metropolitan Library has already been addressed in written decisions by two federal courts, and the Supreme Court of the United States then denied further review. Isn't that enough? There are other choices for the Plaintiff ranging from allowing himself to wear appropriate foot coverings for the brief times when he is present in a Columbus Metropolitan Library, to simply using another local Library altogether - if there is one having no bare foot policy. This lawsuit is expending precious public resources. Plaintiff should ask himself whether, even if he is right on the law, the time and funds he is causing to be expended to defend the Library Board's authority could not be much better spent on other proper public purposes in this time of increasingly tight State and local budgets.

IT IS SO ORDERED.

_______________________ RICHARD A. FRYE, JUDGE