Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, Defendants Board of Trustees of the Columbus Metropolitan Library ("the Board") and Patrick Losinski (hereafter collectively referred to as "Defendants") move for summary judgment. No genuine issue as to any material fact exists and Defendants are entitled to judgment as a matter of law. The reasons supporting this motion are set forth in the accompanying memorandum.

I. INTRODUCTION

On July 17, 2004, Plaintiff Robert A. Neinast filed a pro se Complaint against Defendants Board of Trustees of the Columbus Metropolitan Library ("the Library") and Patrick A. Losinski, Executive Director of the Library. On September 7, 2004, Plaintiff sought leave to file an Amended Complaint. Plaintiff's Complaint, as amended, appears to assert two counts:

• Paragraph 23 asserts that the Board does not have the authority under state law to make and enforce a rule requiring that shoes be worn in the library.

• Paragraph 22 and 24 assert that Mr. Losinski and the Board enforced a rule that was not promulgated by the Board and that enforcement of the rule deprived Plaintiff of his right to use the Library.

Because the Board has the authority under O.R.C. § 3375.40 to adopt a requirement that shoes be worn at the Library, Plaintiff's state law claims must fall. Section 3375.40 gives the Board the authority to establish rules for the proper operation and management of the Library. The proper operation and management of the Library necessarily includes the authority to establish rules, such as the shoe requirement, for the protection of the health and safety of the patrons as well as the protection of public funds and the fiscal integrity of the Library itself.

As to Plaintiff's apparent constitutional claims involving an alleged deprivation of his right to use the Library, having already litigated his claims on every level of the federal court system, those claims are barred by the doctrine of res judicata. On this basis alone, and as this Court has already tentatively concluded, (Journal Entry 3/14/2005, p. 4), Mr. Neinast's constitutional claims in the instant action must be dismissed.

Moreover, even if the unprecedented and undefined right to go barefoot exists (and it does not), Defendant Losinski, the individual defendant, cannot be held monetarily liable. The doctrine of qualified immunity provides that officials are monetarily liable only when they act with a clear understanding that their actions violate a well-defined constitutional right. Not only are the rights Plaintiff asserts nonexistent, but Mr. Black, the previous Executive Director, took the extraordinary measure of obtaining an opinion from the Franklin County Prosecutor's office when confronted with Plaintiff's claims, and was assured that the Library's policy was constitutional. And after that process occurred, the federal courts determined that no constitutional violation took place. Mr. Losinski is thus entitled to qualified immunity.

II. RELEVANT FACTUAL ALLEGATIONS

A. The Facts Underlying All of Mr. Neinast's Claims

Mr. Neinast claims he customarily goes barefoot whenever possible. (Amended Complaint ¶ 4). In a series of incidents beginning on September 12, 1997 and culminating on March 2, 2001, Library personnel requested that Neinast leave the Library's Main Branch for refusing to obey the Library regulation that requires patrons to wear shoes. (Amended Complaint ¶ 6). The March 2, 2001 incident ended with Mr. Neinast's one-day eviction from the Library as a result of his repeated violation of the regulation requiring shoes.

Mr. Black, then-Executive Director of the Library, approved and promulgated the regulation in order to protect the safety of Library patrons from documented hazards within the Library—including blood, feces, semen and broken glass that have, on occasion, been found there. Neinast v. Bd. of Trs. of the Columbus Metro. Library, 190 F.Supp.2d 1040, 1044 (S.D. Ohio 2002); Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585, 593-94 (6^th Cir. 2003).¹ 

Mr. Neinast complained about being asked to leave the Library in a letter to Mr. Black and various members of the Board of Trustees. (Amended Complaint ¶¶ 11-13). In response, the President of the Board informed Neinast that the Board had authorized the regulation through its duly appointed director. (Amended Complaint ¶ 12). When Neinast continued to complain, Mr. Black requested that the Franklin County Prosecutor's Office confirm the legality of the rule requiring shoes. Neinast, 190 F.Supp.2d at 1042; Neinast, 346 F.3d at 589.

B. The Federal Court Proceedings

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 14^th Amendment and its Ohio analogue, (2) the policy violated his 1^st Amendment right to both express himself and access information in a public place, and (3) the policy violated his right to equal protection under both the federal and Ohio constitutions. Mr. Neinast, in addition, specifically requested a declaration "that the Board does not have the statutory authority under the law to make regulations requiring patrons to wear shoes in the Library." (Federal Amended Complaint, ¶ B) (attached hereto as Exhibit A). On May 11, 2001, the Library removed the action to the United States District Court of the Southern District of Ohio.

Thereafter, 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 claims involving the Board's authority, the Court held that the question was one of state law not sufficient to state a claim under § 1983. Neinast, 190 F.Supp.2d at 1047-48;

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 claims involving the Board's authority, the Court held:

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, 346 F.3d at 597. Neither court specifically addressed Plaintiff's request for a declaratory judgment regarding the Board's authority to adopt a shoe requirement without regard to delegation of such authority. Neinast, 190 F.Supp.2d 1040; Neinast, 346 F.3d 585.

Mr. Neinast applied for certiorari to the United States Supreme Court on March 16, 2004. The Supreme Court unanimously denied his application on April 19, 2004.

C. Post-Appeal Incidents

On May 3, 2004, Mr. Neinast wrote to the current Executive Director of the Library, Patrick Losinski, and again renewed his request that the Library abolish the barefoot rule. (Amended Complaint ¶ 13). Among other things, Plaintiff argued that Mr. Losinski lacked Mr. Black's "vested interest" in the enforcement of "his" rule. In closing, the letter threatened further litigation against the Library, if the rule requiring shoes to be work [sic] in the Library continued in effect.

Thereafter, Mr. Neinast returned to the Library on two occasions. On June 10, 2004, Mr. Neinast came to the Library wearing sandals, which he removed once he had gained entrance to the Library's facilities. (Amended Complaint ¶ 17). Library personnel requested that he wear his shoes, and he apparently complied. On June 14, 2004, Mr. Neinast entered the Library barefoot and was asked to leave. He was told that he was welcome to return to the Library if he was wearing shoes. (Amended Complaint ¶ 18).

The Library Board of Trustees, on or about August 26, 2004, passed a new Code of Conduct (attached hereto as Exhibit B) governing patrons, which incorporates a requirement that shoes be worn in the Library. (Amended Complaint ¶ 19). Mr. Neinast now claims that the Library's decision to create a regulation requiring its patrons to wear shoes violates § 3375.40(H). (Amended Complaint ¶¶ 22-24).

III. ARGUMENT

Although the nature of Mr. Neinast's claims is unclear, reading the Amended Complaint in the most liberal light, Neinast appears to be asserting that: (1) the Board does not have the authority to adopt a regulation requiring that library patrons wear shoes and (2) the enforcement of the shoe requirement violates Mr. Neinast's right to use the Library. Neither of these claims is valid.

A. Summary Judgment Should Be Granted Because The Library Consumer [sic] Code of Conduct was Created Pursuant to Valid Statutory Authority.

In Paragraphs 22 and 23 of his Complaint, Plaintiff asserts that the Board does not have the authority to adopt a policy requiring shoes. Plaintiff's attack on the procedural underpinnings of the policy requiring shoes is summarized in Paragraph 23 of his Amended Complaint: "The Board has not been granted the authority under statute to make and enforce a shoe rule." (Amended Complaint ¶ 23). Plaintiff's attack, however, must fail because the Library's Board of Trustees is empowered to make and enforce a rule requiring that its patrons wear shoes.

Section 3375.40(H) of the Revised Code provides the basis for the Board's authority to adopt the Code of Conduct. That section states in pertinent part:

Each board of library ... may do the following:
***
(H) Make and publish rules for the proper operation and management of the free public library and facilities under its jurisdiction, ...'
***.

Ohio Rev. Code § 3375.40(H) (West 2005).

The Supreme Court of Ohio has held that judicial review of administrative rules is confined to deciding whether such rules are reasonable as applied to the facts of a particular justiciable case. In re Appeal of Buckeye Power, Inc., 42 Ohio St. 2d 508, 509, 330 N.E.2d 430, 430 (1975). The Library's rules are, therefore, valid unless they are (1) unreasonable or (2) in clear conflict with the statutory intent of the legislation governing the subject matter. Woodbridge Partners Group, Inc. v. Ohio Lottery Comm., 99 Ohio App. 3d 269, 273, 650 N.E.2d 498, 500-01 (Franklin Cty. 1994). The federal courts already found that the Library's shoe requirement was a reasonable rule as applied to Mr. Neinast's situation. Neinast, 190 F.Supp.2d at 1044, 1047, 1048; Neinast, 346 F.3d at 592, 596. And Mr. Neinast is now bound by those determinations. Superior's Brand Meats, Inc., at 137, 403 N.E.2d at 1000. This Court, accordingly, need only determine whether the shoe requirement is in clear conflict with statutory intent. Woodbridge Partners Group, Inc., at 273, 650 N.E.2d at 501.

The rule, however, is not in clear conflict with the intent of the legislation governing the subject matter. A rule is not inconsistent with a statute unless the rule contravenes or in is [sic] derogation of some express provision of the statute. Id. Mr. Neinast cannot point to any express provision with which the shoe requirement is at odds. There is indeed no such provision.

O.R.C. § 3375.40(H), in fact, specifically authorizes the Library to establish the shoe requirement as a rule established for the proper operation and management of the Library. O.R.C. § 3375.40(H). The federal courts found that the policy requiring shoes serves two substantial governmental interests: it protects the health and safety of Library patrons and protects the fiscal integrity of the Library.²  Neinast, 190 F.Supp.2d at 1044; Neinast, 346 F.3d at 592-95.

The Library's facilities are visited by thousands of individuals each day, none of them directly supervised by Library staff. As the federal courts found, the floors and hallways of Library facilities may hold any number of hazards. Neinast, 190 F.Supp.2d at 1044; Neinast, 346 F.3d at 593-594. The Library and its employees cannot guarantee that facilities will be completely free of hazards created by other patrons, by the staff, or by the facility itself. The requirement that Library patrons wear shoes is without question a rational and reasonable means to effectuate the Library's interest in protecting the safety of patrons and preventing injury and is, therefore, related to the proper operation and management of the Library. See Neinast, 190 F.Supp.2d at 1044, 1047, 1048; Neinast, 346 F.3e at 592, 596.

The same is true with respect to the Library's interest in protecting its fiscal integrity — the federal courts found that hand in hand with the Library's safety concern is its interest in avoiding tort liability for injuries caused to barefoot patrons. Neinast, 346 F.3d at 592, 594. Individuals injured in ways that shoes might have prevented frequently bring suit against businesses and charitable organizations. See Felder v. Victory Fitness Ctr., 1988 Ohio App. LEXIS 3328, *1 (Franklin Cty. 1999) (attached hereto as Exhibit C) (invitee sued owner of premises when she slipped in a shower because her feet were bare); Pressler v. Calhoun, 1994 Ohio App. LEXIS 4027, *1 (Warren Cty. 1994) (attached hereto as Exhibit D) (invitee sued owner of premises when a stake punctured his bare foot); Bisnett v. Mowder, 560 P.2d 68, 68 (Ariz. App. 1977) (owner of premises may be liable for conditions which caused area to be more hazardous to those with bare feet); Lamb v. Redeptorist Father of Georgia, Inc., 142 S.E.2d 278, 283 (Ga. App. 1965) (Charitable organization sued by bare-foot patron who cut his feet).

In Ohio, public libraries are explicitly not protected by sovereign immunity from these types of tort claims (or from the concomitant attorneys' fees that arise as a result of such claims). See O.R.C. §2744.02 (political subdivisions may be liable for damages caused by negligence in the performance of "proprietary" acts); Mathis v. Cleveland Public Library, 9 Ohio St.3d 199, 201, 459 N.E.2d 877 (1984) ("[A] public library will be held liable, the same as private corporations and persons, for the negligence of its employees and agents in the performance of their activities."^Q>). As a result, in the absense of a policy requiring shoes, the Library could easily be subject to claims for such injuries and their attendant litigation costs.

The proper operation and management of the Library must include, at the least, the ability to establish regulations for the protection of its patrons as well as for the protection of the Library's own fiscal integrity. In fact, the Ohio Revised Code authorizes the Board to expend, for Library purposes, all moneys credited to the Library and to set aside any unencumbered surplus "for any purpose." O.R.C. § 3375.40(B), (K). It is only logical that the Board would have the concomitant ability to establish rules for the protection of these same public funds.

Further, "[legislative bodies] can confer administrative powers . . . to make rules and regulations to carry out the legislative intent," even in the absence of specific guidelines from the legislative body. Weber v. Board of Health, 148 Ohio St. 389, 74 N.E.2d 331 (1947). In Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271, 7 N.E.2d 220, syllabus, paragraph 7 (1937), the Ohio Supreme Court held that

[W]hen the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety, or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without . . . restrictions and limitations.^Q>

This is just such a case. While the legislature has established the authority of the Board to expend funds and promulgate rules for the proper operation and management of the Library, it has nonetheless made the decision to leave the specifics of establishing rules for health, safety and fiscal protection of public funds to the Board. This is a proper function of the legislature where it is not in a position to fathom every permutation of what should be included in the proper operation and management of the Library. The legislature properly left this decision to the Board, the entity with more practical knowledge of what rules are necessary for the proper operation and management of the Library. The Library's establishment of rules protecting it patrons and public funds carries out the legislative intent embodied in § 3375.40(B), (H), and (K).

Under Ohio law, the Board has authority to make and enforce a rule requiring that its patrons wear shoes and Plaintiff's claim, therefore, fails as a matter of law.

B. Summary Judgment Should Be Granted As To Plaintiff's Non-State Law Claims Because Those Claims Are Barred Under the Doctrines of Res Judicata and Collateral Estoppel.

As to all of Plaintiff's constitutional claims, including Plaintiff's apparent claim regarding his right to use the library, (Amended Complaint ¶ 23), Defendants agree with this Court that those issues were clearly adjudicated adversely to Plaintiff in the federal courts.³ 

(Journal Entry 3/14/2005, p. 4). As such, Plaintiff is barred from re-litigating those claims in this Court. As the Court requested, Defendants have, therefore, limited the res judicata and collateral estoppel issue to Plaintiff's claims concerning the Board's authority to adopt the shoe rule in its Code of Conduct.

Defendants respectfully submit that, although the federal courts' opinions did not specifically address the scope of the Board's authority, Mr. Neinast's state law claims still are barred by the doctrines of res judicata and collateral estoppel, in that he has already litigated these claims before the United States District Court and the Sixth Circuit Court of Appeals. Each time, the Library and its codefendants received summary judgment on all of Mr. Neinast's claims in their entirety. See Neinast, 190 F.Supp.2d at 1049 ("For the foregoing reasons, the Court GRANTS Defendants' Motion for Summary Judgment in its entirety and DENIES Plaintiff's Motion for Summary Judgment in its entirety.") see also, Neinast, 346 F.3d at 597. Neither court remanded any claim to state court for resolution.

Courts have consistently held that, in deciding whether federal or state law governing res judicata and collateral estoppel should apply in a given case, the analyzing court must look to the law of the jurisdiction in which the case was first litigated. As a result, this Court should look to federal res judicata law in order to determine the preclusive effect of the prior federal court litigation in this case. to the extent a federal court judgment operates as res judicata in the federal court, "it also operates as res judicata in Ohio state courts."^Q> Musa v. Gillett Communs., 119 Ohio App.3d 673, 682, 696 N.E.2d 227 (Cuyahoga Cty. 1997); Horne v. Woolever, 170 Ohio St. 178, 163 N.E.2d 378, paragraph 6 of the syllabus (Ohio 1959); see also Omlin v. Kaufman & Cumberland Co., L.P.A.,, 2003 Ohio 4069, 2003 Ohio App. LEXIS 3622 (Cuyahoga Cty. July 31, 2003) (attached hereto as Exhibit E).⁴ 

It is clear in 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." Rogers v. Whitehall, 25 Ohio St. 3d 67, 69, 494 N.E.2d 1387 (1986). Plaintiff's Amended Complaint from the federal suit specifically requested a declaration that the Board did not have the authority to issue a rule requiring patrons to wear shoes. (Federal Amended Complaint, Request for Relief, ¶ B). The District Court and Sixth Circuit granted summary judgment on all claims against Plaintiff. Neither Judge Marbley nor the Sixth Circuit remanded any issues of state law for determination. Plaintiff, therefore, has already litigated the issue of the Board's authority to adopt a shoe requirement and these claims are barred by the doctrines of res judicata and collateral estoppel. See, e.g., Victor Mortg. Co. v. Arnoff, 67 Ohio Law Abs. 459, 120 N.E.2d 615, syllabus at 3, (Cuyahoga 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 judicata."^Q>); Lehman 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"); Lay Bros., Inc. v. Tahamtan, 236 Ga. App. 435 (1999); Succession of Foster, 240 Lk. 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").

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. Becuase the law absolutely bars him from relitigating those claims, Defendants are entitled to judgment as a matter of law.

C. The Doctrine of Qualified Immunity Bars Any Claim For Damages Against Defendant Losinski

Finally, Plaintiff makes claims for damages against Mr. Losinski, alleging vaguely that he deprived Plaintiff of his right to use the Library. Even if these claims were not barred by res judicata and collateral estoppel, (and they are) Mr. Losinski is entitled to judgment as a matter of law because Plaintiff cannot articulate any "clearly established" federal constitutional or statutory right of which he was deprived. See Saucier v. Katz, 121 S.Ct. 2151, 2156-2157 (2001) ("If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate."); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Anderson v. Creighton, 483 U.S. 635 (1987).

Plaintiff cannot meet this burden. Although the Complaint states that Mr. Losinski violated Plaintiff's constitutional rights, the rights Plaintiff claims were violated cannot remotely be said to be fundamentally established, either by statute or judicial decision. See supra. In fact, addressing these very issues in Plaintiff's earlier suit, the federal courts held that there was no clearly established right so as to bind the individual Defendants in that case and that, in any event, the rule was constitutional. Neinast, 190 F.Supp.2d at 1048-49; Neinast, 346 F.3d at 592, 595, 596. Further, the former Executive Director Black sought an opinion from the Franklin County Prosecutor's office that the regulation requiring shoes was constitutionally valid. Neinast, 190 F.Supp.2d at 1042; Neinast, 346 F.3d at 589. As important, the only other authority "on point." Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), also resolves the issues in favor of the Mr. Losinski's position. Qualified immunity protects all public officers who are not "plainly incompetent or . . . who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Plaintiff cannot present evidence that Mr. Losinski knowingly violated any law. As a result, Mr. Losinski is protected by the doctrine of qualified immunity.

IV. CONCLUSION

In short, Defendants are entitled to judgment as a matter of law because the Board is empowered by statute to establish rules requiring patrons to wear shoes and because Mr. Neinast's claims have already been raised and resolved in another action. For all of these reasons, Mr. Neinast can provide no evidence that would entitle him to relief. As a result, Defendants respectfully request that this Court grant summary judgment.

I hereby certify that a true and accurate copy of the foregoing Motion for Summary Judgment was served by regular U.S. mail, postage prepaid, upon Robert A. Neinast, Plaintiff, 8617 Ashford Lane, Pickerington, Ohio 43147, this 28^th day of April, 2005.

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