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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN R. BRANNEN, )
)
Case No. 1:21-CV-347-MWM
Plaintiff, )
Judge Matthew W. McFarland
)
Magistrate Judge Karen L. Litkovitz
vs. )
)
ORAL ARGUMENT REQUESTED
JOHN A. CUNNINGHAM, et al., )
)
Defendants. )

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Defendants the University of Cincinnati (“UC”), UC President Neville Pinto, and UC

Director of Athletics John Cunningham all move to dismiss Plaintiff John Brannen’s claims against

them, in their entirety, under Federal Rules of Civil Procedure 12(b)(1), (2), and (6).

As explained in more detail in the following Memorandum in Support, Brannen’s claims

are legally defective for several independent reasons. First, both 42 U.S.C. § 1983 and the Eleventh

Amendment preclude this lawsuit against UC. Second, Brannen’s request for a name-clearing

hearing against UC is both procedurally defective and similarly precluded by the Eleventh

Amendment immunity UC enjoys. Third, Brannen’s claims against President Pinto and Director

Cunningham in their official capacities are similarly barred based on Eleventh Amendment

immunity which precludes Brannen’s claims for money damages and retrospective declaratory

relief. Finally, Director Cunningham, whom Brannen also sued in his individual capacity, is

entitled to qualified immunity.

Because all of Brannen’s claims against the Defendants independently fail as a matter of

law, Defendants the University of Cincinnati, Neville G. Pinto, and John A. Cunningham

respectfully request that the Court dismiss Plaintiff’s Complaint in its entirety.

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REQUEST FOR ORAL ARGUMENT

In accordance with Section III.A.1 of this Court’s Standing Order Regarding Procedures

in Civil Cases, the Defendants respectfully request that oral argument be held on this motion, as

this motion implicates the entire case and, if granted, would lead to a final judgment.

Dated: August 27, 2021 Respectfully submitted,

/s/ William R. Martin

William R. Martin, Esq. (Ohio No. 0033955)
BARNES & THORNBURG LLP
1717 Pennsylvania Avenue N.W., Suite 500
Washington D.C. 20006-4623
Tel: (202) 371-6363 | Fax: (202) 289-1330
[email protected]

David DeVillers (Ohio No. 0059456)

C. David Paragas (Ohio No. 0043908)
BARNES & THORNBURG LLP
41 South High Street, Suite 3300
Columbus, Ohio 43215
Tel: (614) 628-0096 | Fax: (614) 628-1433
[email protected]
[email protected]

Counsel for Defendants

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN R. BRANNEN, )
)
Plaintiff, ) Case No. 1:21-CV-347-MWM
) Judge Matthew W. McFarland
vs. ) Magistrate Judge Karen L. Litkovitz
)
JOHN A. CUNNINGHAM, et al., ) ORAL ARGUMENT REQUESTED
)
Defendants. )

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS

Plaintiff John Brannen, the University of Cincinnati’s (“UC”) former men’s basketball

coach, committed multiple instances of misconduct on the job, including misconduct affecting the

health and wellbeing of his student-athletes. He was terminated for it. Now, he brings this 66-page,

214-paragraph suit in federal court under 42 U.S.C. § 1983, alleging violations of his Fourteenth

Amendment due process rights. This suit targets UC, UC President Neville Pinto, and UC’s

Director of Athletics John Cunningham. Brannen asks the Court to find that these Defendants

violated his constitutional rights, and asks the Court to order them to pay him money damages and

his attorney fees. More than that, Brannen’s suit asks the Court to compel UC to hold a “live

broadcast[ed]” press event for “all local and national media,” whereby Brannen can air his

grievances against UC and Director Cunningham, and purportedly restore his reputation.

Unfortunately for Brannen, the law precludes each of his claims, as to each Defendant, and

as to all relief that Brannen requests—even taking each allegation in the Complaint as true.

Specifically, UC is wholly immune to Section 1983 lawsuits. Moreover, Brannen’s demand

that UC be forced to hold a “name-clearing hearing” is defective because he failed to ask for this

relief before he filed suit, thereby precluding his claim.

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As for President Pinto, Brannen’s Complaint alleges almost no facts against him. It fails to

say what action(s) President Pinto took and how such action(s) somehow deprived Brannen of his

constitutional rights. Plus, Brannen sued President Pinto solely in his official capacity, which

means that he is legally immune from the only relief that Brannen demands of him: money

damages and retrospective declaratory relief.

And for Director Cunningham, Brannen sued him in both his official and individual

capacities. As his official capacity goes, Director Cunningham is immune from the demands for

money damages and retrospective declaratory relief, just like President Pinto. For his individual

capacity, Director Cunningham enjoys qualified immunity, because the Complaint’s allegations

fail to demonstrate that Director Cunningham violated a “clearly established” constitutional right

of Brannen’s. At this pleadings stage, Brannen has the burden to show otherwise, and he cannot

do so.

This means that each of Brannen’s legal theories is legally defective. His Complaint should

thus be dismissed in its entirety under Federal Rules of Civil Procedure 12(b)(1) and (6).

RELEVANT FACTS FROM THE COMPLAINT

The Complaint alleges the following facts, which at this stage the Court must take as true.

UC’s relationship with Brannen began in the spring of 2019, when UC chose him to lead

its men’s basketball program. Compl., ECF No. 1 at PageID 17–18 ¶ 48. UC announced Brannen

as its head basketball coach that April 14. Id. On June 17, UC and Brannen signed an “Employment

Agreement” (the “Contract”), establishing all rights and responsibilities between UC and Brannen.

Compl., ECF No. 1 at PageID 8 ¶ 24. The Complaint attaches the Contract as its Exhibit A. Id.;

Compl. Ex. A, ECF No. 1-1. This is the only exhibit to the Complaint, besides some summons

forms. See generally Compl., ECF No. 1.

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The Contract was for five years, concluding at the end of the 2024–2025 season. Compl.

Ex. A, ECF No. 1-1 at PageID 1 § 1. UC could terminate the Contract at any point before that time

in one of two ways: “For Cause” and “Without Cause.” Id. at PageID 10–13 §§ 5(a), 5(c); Compl.,

ECF No. 1 at PageID 7–8 ¶¶ 23, 26. Contract Section 5(a), beginning on page 10, listed seven

categories of violations that would justify a “for cause” termination, including:

(i) Deliberate and serious violation by Coach of the material duties outlined in
Section 2 of this Agreement, his willful refusal to diligently perform such duties
in good faith, or his failure to diligently perform such duties in good faith; …
(iv) Coach intentionally, negatively, and materially impacts the welfare of a student
athlete; [or]
(v) Coach engages in conduct which is seriously and materially prejudicial to the
best interests of the University, its Athletics Department, or the Men’s
Basketball Program and/or which is seriously and materially contrary to the
University’s educational mission[.]

Another subsection, 5(a)(vi), permitted the University to terminate Brannen for cause if he violated

any University, NCAA, or conference rules; but this specific, rules-violation termination would

require UC to take certain pre-termination steps first. Compl., ECF No. 1 at PageID 14 ¶¶ 40–41;

Compl. Ex. A, ECF No. 1-1 at PageID 11 §§ 5(a)(vi)(A)–(C). Those procedural steps applied only

to for-cause termination under subsection 5(a)(vi). Id.

On March 26, 2021, Director of Athletics John Cunningham announced that UC had

initiated an internal review of its men’s basketball program. Compl., ECF No. 1 at PageID 43 ¶

130. UC suspended Brannen pending the investigation and informed him of this in an April 3 letter.

Id. at PageID 49–50 ¶¶ 152–53.

On March 25, Brannen called President Pinto’s cell phone and left a voicemail asking for

a return call. Id. at PageID 41 ¶ 127. President Pinto did not return Brannen’s call. Id.

As a result of the investigation’s findings, UC terminated Brannen for cause. Id. at PageID

53 ¶¶ 166–67. Director Cunningham laid out UC’s reasons in a letter dated April 9, 2021. The

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termination letter listed the provisions of Brannen’s Contract that he had violated, and that formed

the basis for his termination: Sections 5(a)(i), (iv), and (v). The Complaint references this letter at

least 12 times, and quotes it at least six times, and repeatedly alleges that it provides grounds for

the lawsuit, but does not provide the Court with a copy of the document. Compl., ECF No. 1 at

PageID 3, 53–56, 59, 60, 61, 63–64 ¶¶ 3, 167–174, 184, 189, 192, 206. The Defendants attach the

letter here as this motion’s Exhibit 1. (As show below, the law is clear that this is not a “matter

outside the pleadings” under Rule 12(d).)

Following Brannen’s termination, Director Cunningham made the following

announcement:

The decision to move in a new direction comes after a thorough review of our
program, which included conversations with student-athletes, coaches and staff, as
well as with Coach Brannen. Ultimately, the University is acting in the best interests
of our student-athletes and of the institution, and this decision is reflective of our
commitment to both, as well as to our values that we hold dear.

Compl., ECF No. 1 at PageID 61 ¶ 192. Later, President Pinto issued a public statement regarding

Director Cunningham:

I want to commend John Cunningham for his sound leadership and principled
stewardship of our Department of Athletics. His character and integrity speak
louder than words. Our student athletes could not have a more caring and capable
leader advocating on their behalf. John has my full confidence in moving our
programs forward to even greater heights.

Id. at PageID 61–62 ¶ 195.

Brannen filed this Complaint a few weeks later on May 20, against UC, President Pinto in

his official capacity, and Director Cunningham in both his official and individual capacities. Id. at

PageID 2. The Complaint brings just one count, for violation of the Fourteenth Amendment’s Due

Process Clause, under 42 U.S.C. § 1983. Compl., ECF No. 1 at PageID 62–65 ¶¶ 197–214. The

Complaint seeks three kinds of relief: (a) declaratory relief, asking the Court to “[d]eclare that

Defendants have violated the Fourteenth Amendment”; (b) injunctive relief, asking the Court to

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“order a meaningful name-clearing opportunity,” which, among other things, would compel UC

to “provide notice of the hearing to all local and national media[ ] and [ ] make available such

resources necessary for the live broadcasting and recording of the hearing”; and (c) monetary

relief, in compensatory damages, punitive damages, interest, and attorney fees. Id. at PageID 65.

LEGAL STANDARD

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) can form separate grounds for

dismissal of all or parts of a complaint, and they follow different standards.

Rule 12(b)(1) requires dismissal where a claim lacks subject matter jurisdiction. One such

instance is a claim against a governmental entity that enjoys sovereign immunity, such as immunity

under the Eleventh Amendment—those claims lack jurisdiction and are thus subject to Rule

12(b)(1) dismissal. 1 Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000). “Lack

of subject matter jurisdiction is a non-waivable, fatal defect.” Coley v. State of Ohio Dep’t of

Rehab., No. 2:16-CV-258, 2016 WL 5122559, at *2 (S.D. Ohio Sept. 21, 2016) (citing Watson v.

Cartee, 817 F.3d 299, 302–03 (6th Cir. 2016)). Once a defendant challenges jurisdiction under

Rule 12(b)(1), “the plaintiff has the burden of proving jurisdiction in order to survive the

motion.” Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996).

As for Rule 12(b)(6), this rule allows the “defendant to test whether, as a matter of law, the

plaintiff is entitled to legal relief even if everything alleged in the complaint is true.” Mayer v.

Mylod, 988 F.2d 635, 638 (6th Cir. 1993). In considering whether to grant a Rule 12(b)(6) motion,

the Court must accept the complaint’s allegations as true and construe the complaint in the

plaintiff’s favor. Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006). “A district court need not,

however, accept as true legal conclusions or unwarranted factual inferences.” Id.

1
Dismissal is also warranted based on Rule 12(b)(2) due to lack of personal jurisdiction. See infra at p. 7, n. 3.

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ARGUMENT

Brannen’s complaint suffers multiple, independent defects which appear on the face of his

Complaint and cannot be cured. These defects include the immune defendants he has sued and the

barred remedies he seeks. The law requires that each theory of relief as to each defendant be

dismissed. For the reasons below, the Complaint should be dismissed in full and with prejudice.

I. UC should be dismissed.

The Court should dismiss UC because it its wholly immune from Section 1983 suits.

Additionally, the Complaint’s demand for injunctive relief against UC is facially defective.

A. UC cannot be sued under Section 1983.

The law requires that UC be dismissed, for two independent reasons.

First, UC is not a “person” under Section 1983, and thus cannot be sued under the statute.

Section 1983 permits a citizen who suffers a constitutional deprivation to sue the “person” who

caused it. 42 U.S.C. § 1983. But “person” means “person”—“a State is not a ‘person’ against

whom a § 1983 claim for money damages might be asserted.” Lapides v. Bd. of Regents of Univ.

Sys. of Ga., 535 U.S. 613, 617 (2002). Nor are state bodies like public universities “persons” under

Section 1983; they therefore cannot be sued and courts promptly dismiss them from 1983 actions

under Rule 12(b)(6). See Underfer v. Univ. of Toledo, 36 F. App’x 831, 834 (6th Cir. 2002)

(“public-funded universities are not considered ‘persons’ under § 1983”; affirming Rule 12(b)(6)

dismissal); Yates-Mattingly v. Univ. of Cincinnati, 1:11-CV-753, 2012 WL 3779934, at *2 (S.D.

Ohio Aug. 31, 2012) (granting Rule 12(b)(6) dismissal for UC on this ground).

Second, UC is immune from suit under the Eleventh Amendment. The Eleventh

Amendment “bars all suits” against a state or a state entity. Thiokol Corp. v. Dep’t of Treasury,

987 F.2d 376, 381 (6th Cir. 1993) (internal citations omitted). This immunity applies regardless of

the relief sought. Id. (“whether for injunctive, declaratory or monetary relief”). In other words,

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states and state entities cannot be sued in federal court for any type of relief. 2 McCormick v. Miami

Univ., 693 F.3d 654, 62 (6th Cir. 2012). This immunity applies to state universities like UC. Id. at

661–62; Johnson, 215 F.3d at 571 (6th Cir. 2000). UC is thus entitled to dismissal under Rule

12(b)(1) because this immunity deprives this Court of jurisdiction. Johnson, 215 F.3d at 571; Doe

v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 597 (S.D. Ohio 2016). 3

The statutory “person” requirement and the Eleventh Amendment form independent

grounds for dismissal here at the pleadings stage. See, e.g., Yates-Mattingly, 2012 WL 3779934,

at *2 (“even if the University of Cincinnati were a ‘person,’ Plaintiff’s Section 1983 claim would

be barred by the Eleventh Amendment”). The law requires that UC be dismissed.

B. Brannen’s effort to compel UC to hold a name-clearing hearing is defective.

Even if UC were not immune from suit as detailed above, Brannen’s demand to compel

UC 4 to hold a name-clearing hearing (Compl., ECF No. 1 at PageID 65 ¶ (b)) would still be

defective, because Brannen never requested, nor was denied, such a hearing before filing suit.

Name-clearing relief in the Fourteenth Amendment context relates to an individual’s liberty

2
The immunity that states enjoy under the Eleventh Amendment is subject to three limited exceptions, none of which
apply to the claims and remedies asserted against UC: “(1) when the state has consented to suit; (2) when the
exception set forth in Ex parte Young, [209 U.S. 123 (1908)] applies; and (3) when Congress has clearly and
expressly abrogated the state’s immunity.” Puckett v. Lexington-Fayette Urban County Government, 833 F.3d 590,
598 (6th Cir. 2016) (citation added and internal citations omitted); accord Alden v. Maine, 527 U.S. 706 (1999). It is
well-established that Ohio has not waived its sovereign immunity from suit in federal court. Johns v. Supreme Court
of Ohio, 753 F.2d 524, 527 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th
Cir. 1982); Mixon v. State of Ohio, 193 F.3d 389, 396–97 (6th Cir. 1999). Nor has Congress abrogated the state’s
sovereign immunity as to claims related to the constitutional violations that Brannen asserts here. See, e.g., Mixon,
193 F.3d at 397. Finally, as discussed below, the Ex parte Young exception only applies to individuals sued in their
official capacity for prospective, injunctive relief. See infra at Section II.B.2.
3
As Justice Gorsuch recently noted, sovereigns like Ohio—and Ohio entities like UC and its officials—also enjoy
immunity inherent in the structure of the Constitution, which “sounds in personal jurisdiction,” and thus also requires
dismissal here under Rule 12(b)(2). See PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2264 (2021)
(Gorsuch, J., dissenting) (citing Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485, 1493–94 (2019)).
4
Brannen’s request for a name-clearing hearing applies only to UC, because he pleads this relief only as to UC.
Compl., ECF No. 1 at PageID 65 ¶ (b) (“Order a meaningful name-clearing opportunity [to] require that the University
of Cincinnati….”).

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interest in his or her reputation. See Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir. 1989). The

law allows a terminated employee to sue for a name-clearing hearing if he “shows that he has been

stigmatized by the voluntary, public dissemination of false information in the course of a decision

to terminate his employment.” Id. But a threshold requirement for this relief is that the employee

must have requested the name-clearing opportunity, and been denied that opportunity, before filing

suit. See, e.g., Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002). Here, Brannen never requested

a name-clearing opportunity before filing, and thus his Complaint fails to plead that he made such

a request. This alone warrants dismissal of the claim for name-clearing relief. See id. (affirming

12(b)(6) dismissal); Ludwig v. Bd. of Trustees of Ferris State Univ., 123 F.3d 404, 410 (6th Cir.

1997) (affirming Rule 12(b)(6) dismissal of claims by basketball coach against university).

II. The Complaint fails to plead cognizable claims against President Pinto.

The law requires dismissal of President Pinto from the suit for several reasons.

A. The Complaint fails to connect President Pinto to any alleged constitutional

violation.

The Complaint cannot maintain claims against President Pinto because it fails to say what

President Pinto did wrong or how his actions might indicate any constitutional deprivation of

Brannen’s rights.

Indeed, the Complaint scarcely mentions President Pinto at all. Across the 214 paragraphs

of his 66-page Complaint, Brannen makes few and conclusory allegations against President Pinto,

with only two paragraphs describing any specific alleged conduct:

• Brannen left Pinto a voice message on March 25, 2021. Pinto did not return the call.

• Pinto took the “unusual step” of issuing a statement supporting Director Cunningham.

Compl., ECF No. 1 at PageID 41, 61–62 ¶¶ 127, 195. Beyond these two paragraphs, the Complaint

is devoid of anything more than conclusory legal elements as to President Pinto, and even then

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only in the context of the catch-all defined term “Individual Defendants.” See id. at PageID 63–64

¶¶ 203–212 (reciting elements, under Count One, about the “Individual Defendants,” defined to

include President Pinto on page 2, n.1).

Such scant assertions are insufficient to sustain a claim against President Pinto as a matter

of well-established law. To establish liability against state officials under Section 1983, a plaintiff

must show exactly how each defendant-official “caused the deprivation of a federal right.”

Kentucky v. Graham, 473 U.S. 159, 166 (1985). Stated differently, “a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This is because “each Government

official, his or her title notwithstanding, is only liable for his or her own misconduct.” Id. at 677.

A supervisory official thus cannot be liable under a theory of vicarious liability, id. at 676, or, in

other words, “simply because he or she was charged with overseeing a subordinate who violated

the constitutional rights of another.” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir.

2016).

A supervisor’s mere failure to act is also not enough; instead, “supervisory liability requires

some ‘active constitutional behavior’ on the part of the supervisor.” Id. (quotation omitted); accord

Salehpour v. Univ. of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998) (Section 1983 liability requires

“active unconstitutional behavior,” and not “a mere failure to act”).

Again, the Complaint fails to connect President Pinto to any alleged constitutional

violation. Instead, Brannen appears to target just the University, by naming its president in his

official capacity, which cannot survive Rule 12 scrutiny. See Top Flight Entm’t, Ltd. v. Schuette,

729 F.3d 623, 634 (6th Cir. 2013) (affirming dismissal of defendant when plaintiff did not allege

how defendant, in his official capacity as Attorney General, “had knowledge of, or participated

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in,” the alleged constitutional violation); Saqr v. Univ. of Cincinnati, 1:18-CV-542, 2020 WL

5361669, at *7–9 (S.D. Ohio Sept. 8, 2020) (dismissing UC officials because plaintiffs did not

connect their alleged harm to actions taken by the defendants).

B. The Eleventh Amendment bars Brannen’s claims against President Pinto.

President Pinto must be dismissed for the separate reason that the Eleventh Amendment

bars the claims against him. Brannen sued President Pinto only in his official capacity. See Compl.,

ECF No. 1 at PageID 1–2. In such cases, the Eleventh Amendment (1) altogether bars claims for

money damages, and (2) bars claims for declaratory relief that seek to redress a past wrong.

1. Money damages.

President Pinto cannot be sued in his official capacity for money damages. A state official

is not subject to a suit for money damages in his or her official capacity. See, e.g., Turker v. Ohio

Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998). This is because such a suit is treated

as an action against the state itself, and is barred by the Eleventh Amendment. Id. (this proposition

“is well-established”); accord Qiu v. Univ. of Cincinnati, 803 F. App’x 831, 837–38 (6th Cir.

2020) (affirming dismissal of President Pinto and a UC professor named in their official

capacities). So, to the extent that Brannen seeks monetary relief from President Pinto, see Compl.,

ECF No. 1 at PageID 65 ¶ (c), his suit is barred by the Eleventh Amendment and should be

dismissed for lack of jurisdiction under Rule 12(b)(1).

2. Retroactive declaratory relief.

Brannen’s Complaint also asks for a declaratory judgment. Compl., ECF No. 1 at PageID

65 ¶ (a). As shown above, an official sued in his or her official capacity is immune from claims

for money damages. But under the Ex Parte Young doctrine—arising from the case of Ex parte

Young, 209 U.S. 123 (1908)—a plaintiff may seek “prospective injunctive and declaratory” relief

against state defendants named in their official capacities. S & M Brands, Inc. v. Cooper, 527 F.3d

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500, 507 (6th Cir. 2008); Qiu, 803 F. App’x at 839. This is known as the “Ex parte Young

exception” to Eleventh Amendment sovereign immunity. See, e.g., S & M Brands, 527 F.3d at

507.

Under this exception, “a federal court can issue prospective injunctive and declaratory

relief compelling a state official to comply with federal law.” Id. “Prospective” means that the

declaration must seek to address a defendant’s “ongoing, continuous” conduct, not some past

wrong. Id. at 510. Determining whether declaratory relief sought is “prospective” in nature is a

“straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal

law[.]” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645–46 (2002) (emphasis

added).

Here, Brannen alleges no ongoing violation. Instead, he seeks a declaratory judgment only

as to past, concluded alleged conduct, asking simply that the Court “[d]eclare that Defendants have

violated the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983[.]”

Compl., ECF No. 1 at PageID 65, ¶ (a) (emphasis added). Courts recognize this “declaratory”

relief as a mere effort to establish liability for a past wrong, and as an end run around the Eleventh

Amendment’s bar against monetary damages, and they reject this theory accordingly. See Gies v.

Flack, 495 F. Supp. 2d 854, 863–64 (S.D. Ohio 2007) (barring terminated employee’s claims and

declining to apply Ex parte Young where employee sought “a declaration that Defendants violated

his rights in the past”); Cotton v. Mansour, 863 F.2d 1241, 1249 (6th Cir. 1988) (rejecting “request

for a declaratory judgment that defendant’s past method of calculating food stamp eligibility” was

unlawful) (citing Green v. Mansour, 474 U.S. 64, 72–73 (1985)). That is, a complaint that seeks a

declaratory judgment without some prospective injunctive relief would have “much the same

effect as a full-fledged award of damages or restitution by the federal court.” Green, 474 U.S. at

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73; accord Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 654–55 (S.D. Ohio 2016) (dismissing

plaintiff’s request for a judgment “declaring that the Defendants have violated” the law; such relief

was retrospective “on its face”); Gies, 495 F. Supp. 2d 863 (such a request for “declaratory” relief

is “clearly an indirect means of seeking retroactive monetary relief”); Dvorak v. Wright State

Univ., C-3-96-109, 1997 WL 1764779, at *10–11 (S.D. Ohio Sept. 3, 1997) (similar).

The Eleventh Amendment thus bars both Brannen’s claim for money damages and his

request for declaratory relief as to President Pinto. Compl., ECF No. 1 at PageID 65, ¶¶ (a), (c).

And as noted above, Brannen seeks name-clearing relief only as to Defendant UC, id. at PageID

65 ¶ (c), and that relief request is facially defective. The law thus requires that President Pinto be

dismissed entirely from this suit.

III. The Complaint cannot sustain claims against Director Cunningham.

Unlike with President Pinto, Brannen has sued Director Cunningham in both his official

and individual capacities. See Compl., ECF No. 1 at PageID 1–2. Still, the law requires that

Director Cunningham be dismissed as well. This is because the same immunities apply to him in

his official capacity as apply to President Pinto, and because the Complaint establishes that

Director Cunningham enjoys qualified immunity in his individual capacity.

A. Director Cunningham is immune from suit in his official capacity.

To the extent Director Cunningham is sued in his official capacity, the same immunities

apply to him as applied to President Pinto, who was sued in this same official capacity. The same

analysis from above applies to Director Cunningham’s official capacity as it does to President

Pinto. That is, Director Cunningham cannot be sued in his capacity for money damages, Turker,

157 F.3d at 456, nor can he be sued for the same retrospective declaratory relief, Doe v. Ohio State,

219 F. Supp. 3d at 654; see Compl., ECF No. 1 at PageID 65 ¶¶ (a), (c). The fact that President

Pinto is a higher official than Director Cunningham makes no difference—the key factor is the

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naming of a defendant in his or her official capacity, no matter how high that capacity may be.

See, e.g., Qiu, 803 F. App’x at 837–38 (same analysis for professor as for university president).

And, again, the remaining relief—a name-clearing opportunity, Compl., ECF No. 1 at PageID 65

¶ (b)—is raised only as to UC and is defective and not cognizable. Director Cunningham is thus

entitled to Rule 12(b)(1) dismissal in his official capacity.

B. Director Cunningham is entitled to qualified immunity as to any claim

against him in his individual capacity.

As for Brannen’s claim against Director Cunningham in his individual capacity, this claim

is barred by qualified immunity. The doctrine of qualified immunity shields government officials

sued in their individual capacity from liability “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); accord Bishop v. Hackel, 636 F.3d 757, 765

(6th Cir. 2011). In so doing, “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 v. Callahan, 555 U.S. 223, 231 (2009).

Because the policy concerns here include not just liability, but also “harassment [and]

distraction,” it is important to resolve immunity issues “at the earliest possible stage of litigation.”

Id. at 232; accord Hunter v. Bryan, 502 U.S. 224, 227 (1992); Cochran v. Gilliam, 656 F.3d 300,

311 (6th Cir. 2011). That is, qualified immunity is “an immunity from suit rather than a mere

defense to liability,” and the purpose of the immunity “is effectively lost if a case is erroneously

permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original);

accord Dunigan v. Noble, 390 F.3d 486, 490 (6th Cir. 2004) (“Qualified immunity is a government

official’s entitlement not to stand trial or face the other burdens of litigation.”) (quotation omitted).

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Consistently, the Supreme Court has emphasized that the very purpose of qualified immunity is to

test claims, and often to dismiss them, at the very outset of litigation, before discovery would take

place. See Pearson, 555 U.S. at 231–32 (“[W]e have made clear that the driving force behind

creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against

government officials will be resolved prior to discovery.’”) (quoting Anderson v. Creighton, 483

U.S. 635, 640 n.2 (1987)) (cleaned up).

The Supreme Court has described qualified immunity as “the general rule,” and almost a

“guarantee of immunity.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). Therefore, the

plaintiff bears the burden to show that qualified immunity is not appropriate. See Silberstein v.

City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). A defendant is entitled to qualified immunity

unless the plaintiff can establish two things: (1) that the defendant violated a constitutional right;

and (2) that the right at issue was “clearly established” at the time of the defendant’s alleged

misconduct. Bailey v. City of Port Huron, 507 F.3d 364, 366 (6th Cir. 2007); Pearson, 555 U.S. at

232. The allegations set forth in Brannen’s Complaint establish that he cannot meet this burden.

1. Director Cunningham did not violate a constitutional right.

Plaintiff’s Complaint rests on two central documents: the Contract and the termination

letter. These two documents preclude Brannen’s Section 1983 claim.

Brannen asserts that the Contract provided him a procedural due process right, 5 and that

the Defendants, including Director Cunningham, violated it. Specifically, Brannen claims that the

5
Plaintiff also mentions “substantive due process,” twice, without explaining the alleged “substantive” deprivation
and without connecting it to any case facts. Compl., ECF No. 1 at PageID 2, 63 ¶¶ 1, 206. As discussed above,
conclusory and barebones allegations cannot sustain a claim or theory. And, even if Brannen had properly pleaded
substantive due process, the Complaint’s facts would still fail to meet the “shock the conscience” standard required.
See, e.g., McMaster v. Cabinet for Human Res., 824 F.2d 518, 522 (6th Cir. 1987); Sutton v. Cleveland Bd. of Educ.,
958 F.2d 1339, 1350 (6th Cir. 1992) (“[W]e conclude that plaintiffs’ state-created right to tenured employment lacks
substantive due process protection.”).

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Contract provided him a right to “adequate notice of the allegations against him” and “a

meaningful opportunity to rebut those charges, formally respond to any allegations, and otherwise

clear his name.” See Compl., ECF No. 1, generally & at PageID 3 ¶ 3. Plaintiff relies on Section

5(a)(vi) of the Contract as creating this alleged right to notice and hearing before termination: “The

‘due process’ clause in paragraph 5.a.(vi)…. supplements, but is not a substitute for, the

constitutional due process to which certain public employees are entitled before they can be

terminated ‘for cause.’” Id. at PageID 14 ¶ 41; accord id. at PageID 14, 59 ¶¶ 40, 183.

However, Brannen was not terminated under Section 5(a)(vi), covering rules violations;

instead, he was terminated under the preceding subsections of Section 5(a)—subsections (i), (iv),

and (v), covering Brannen’s failure to perform his coaching duties, his impacting of student-athlete

welfare, and his acting to prejudice UC’s interests. None of those latter three subsections have the

notice-and-hearing language on which the Complaint relies. See Compl. Ex. A, ECF No. 1-1 at

PageID 10. Subsection (vi) has its own, detailed process requirements, detailed in its further

subsections (vi)(A), (B), and (C), and the Contract is clear that those provisions apply only to

termination under subsection (vi). Id. at PageID 11. “For cause” terminations under subsections

(i), (iv), and (v), in contrast, only required “written notice thereof to Coach stating the grounds

therefore, and thereafter all obligations of the University to make further payments and/or to

provide any other consideration hereunder shall cease as of the date of the termination.” Id. at

PageID 12 § 5(b). That is, notice to Brannen was all that was required, and it was provided via the

termination letter.

The termination letter is explicit that Brannen’s termination is under these subsections, Ex.

1 at 1, and not under subsection (vi), id. at 2. The letter noted, however, that subsection (vi) grounds

may arise through the ongoing investigation, which could then trigger the notice and hearing

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provisions under subsections (vi)(A), (B), and (C), which would be honored. Id. at 2. Tellingly,

despite invoking and (selectively) quoting the termination letter repeatedly as a foundation for this

lawsuit, Compl., ECF No. 1 at PageID 3, 53–54, 56, 59, 60, 61 ¶¶ 3, 167–70, 174, 184, 189, 192,

the Complaint does not attach this document. As shown above, the termination letter undoes

Brannen’s contention that UC and Director Cunningham failed to follow the required process.

Defendants attach the termination letter here, as the law permits at the Rule 12 stage, and which

does not constitute a “matter outside the pleadings” under Rule 12(d). See Greenberg v. Life Ins.

Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) (a document not attached to the complaint is

still “part of the pleadings” when referred to and relied on in the complaint; affirming district

court’s decision to consider document attached to Rule 12(b)(6) motion and not to convert it into

a Rule 56 motion); Nationwide Children’s Hosp., Inc. v. D.W. Dickey & Son, Inc. Emp. Health &

Welfare Plan, No. 2:08-CV-1140, 2009 WL 5216041, at *7 (S.D. Ohio Dec. 29, 2009) (“no

question” that the Court could consider document attached to Rule 12(b)(6) motion where the

complaint “quotes and references” but does not attach it); DLX, Inc. v. Kentucky, 381 F.3d 511,

516 (6th Cir. 2004) (materials outside the pleadings are liberally permitted in considering Rule

12(b)(1) motion). In short, the Complaint—and the termination letter that it repeatedly invokes,

quotes, and relies on—shows that UC followed the exact process that the Contract prescribed.

Brannen also alleges that he had due process rights in his continued employment beyond

those provided via the Contract. See id. ¶ 30 (the contract language “supplements, but is not a

substitute for,” inherent due process rights as a public employee); id. ¶ 43 (“The requirement that

a public employer, such as UC, provide constitutional due process under these circumstances is

not constrained by the specific language used in the employee’s contract.”). But the Complaint

exposes several problems with that view.

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First, Brannen never explains what process, beyond the Contract, that he thinks he was

entitled to and deprived of. Instead, the Contract is the only basis that he can articulate—

immediately after invoking a non-contractual due process right, he claims only deprivations under

the contract. Compare id. ¶ 43 (above, invoking unexplained non-contractual rights) with ¶ 44

(alleging what the contract required). Without any explanation of what non-contractual rights he

is talking about or where they come from, the Court and the Defendants cannot know what non-

contractual process he purportedly should have received but did not.

Second, the law is clear that no rights outside of the Contract exist. Procedural due process

for public employees is not the abstract, intangible idea that the Complaint suggests. A complaint

for a deprivation “must first establish that [the employee] enjoyed a property interest in her

position,” Bailey v. Floyd Cty. Bd. of Educ. By & Through Towler, 106 F.3d 135, 141 (6th Cir.

1997), by “demonstrat[ing] a legitimate claim of entitlement to continued employment.”

McAllister v. Kent State Univ., 454 F. Supp. 3d 709, 720 (N.D. Ohio 2020) (quotation omitted).

Such an entitlement is not inherent in the Constitution, as the Complaint suggests—instead, it

“must be grounded in some statute, rule, or policy.” Id. (collecting cases; quotations omitted). That

is, the aggrieved employee must point to “a state statute, a formal contract, or a contract implied

from the circumstances” as a basis for a protected property interest in his or her job. Singfield v.

Akron Metro. Hous. Auth., 389 F.3d 555, 565 (6th Cir. 2004) (citations omitted). This requirement

is strict and is hard to show—indeed, claims are often dismissed at the outset for a failure to show

this protected interest, even before reaching qualified immunity analysis. McAllister, 454 F. Supp.

3d at 720–22 & n.9 (granting Rule 12(b)(6) dismissal).

Here, Brannen points to the Contract—as shown above, the Complaint shows that the

rights, interests, and procedures of the Contract were honored. Brannen asserts no implied or quasi-

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contractual rights. As for a “state statute,” Singfield, 389 F.3d at 565, Brannen identifies no statute

that might grant him a separate property interest in his job, but refers simply to “law” and

“constitutional” rights. To the extent that these allegations might refer to due process rights

afforded to certain Ohio classified civil servants, e.g., Compl., ECF No. 1 at PageID 14–15 ¶¶ 42–

43, the Complaint would be wrong—Brannen was not a classified employee as a matter of law and

had no constitutional right to the continued employment afforded to classified employees. R.C.

124.11; Corbett v. Garland, 228 F. App’x 525, 526–28 (6th Cir. 2007).

2. Director Cunningham did not violate a “clearly established” right.

Whether a law or right is “clearly established” is normally determined by reference to the

published decisions of the Supreme Court, the Sixth Circuit, or the District Court itself. See Ohio

Civil Service Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988). But, “it is only in

extraordinary cases that we can look beyond Supreme Court and Sixth Circuit precedent to find

clearly established law.” See Black v. Parke, 4 F.3d 442, 445 (6th Cir. 1993).

For a right to be “clearly established” (or “settled”), it must be established in concrete

terms—“not as a broad general proposition, but in a particularized sense so that the contours of

the right are clear to a reasonable official.” Reichle v. Howards, 566 U.S. 658, 665 (2012) (internal

citations omitted). Once the right is framed at the appropriate level of particularity, the reviewing

court must ask whether “every reasonable official would have understood that what he is doing

violates that right.” Reichle, 566 U.S. at 664–65 (cleaned up). This requires either “controlling

authority” or “a robust consensus of cases of persuasive authority” of sufficient clarity to have

placed “the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (quotations omitted). Thus, the question is, was the public official on notice that their

conduct was unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002).

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As shown above, even taking all of the Complaint’s pleaded facts as true, Director

Cunningham followed the Contract’s requirements when he terminated it. Of course, there is “no

pre-existing law dictating the conclusion” that termination of a contract according to its terms is a

constitutional violation. Saylor v. Bd. of Educ. of Harlan Cty., Ky., 118 F.3d 507, 516 (6th Cir.

1997); see also Burish v. Ohio Dep’t of Mental Retardation and Developmental Disabilities, No.

1:10-CV-02292, 2012 WL 2931357 at *7–8 (N.D. Ohio July 18, 2012) (“Given the discretionary

language of [the policy] coupled with the denial of plaintiff’s workers’ compensation claim,

plaintiff has not met his burden of demonstrating a property right entitled to greater due process

than that already provided”). As a result, when Director Cunningham terminated the Contract

based on provisions that had no notice-and-hearing requirements, he was not “on notice” that his

conduct was “unlawful.” Hope, 536 U.S. at 739.

Again, qualified immunity puts the burden on Brannen to show that an established right

existed and was violated. Here, the Complaint fails to carry that burden—it shows no established

right beyond those in the Contract, and it shows that the terms of the Contract were followed.

CONCLUSION

Brannen has failed to plead his way through the immunities and facts that bar his lawsuit.

His claims against UC are barred because UC is entirely immune. His claims against President

Pinto and Director Cunningham in their official capacities are similarly barred, because they

cannot be sued in this capacity for money damages or for the retrospective declaratory relief that

Brannen seeks. As for the request for name-clearing relief, this relief is defective because it targets

only UC, which again is wholly immune, and because Brannen has forfeited his chance for this

relief by filing suit before asking for it. Director Cunningham, meanwhile, is entitled to qualified

immunity from suit in his individual capacity, and Brannen cannot carry his burden to show

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otherwise. The Complaint thus has no claims or relief left to carry forward. It should be dismissed

in its entirety.

Dated: August 27, 2021 Respectfully submitted,

/s/ William R. Martin

William R. Martin, Esq. (Ohio No. 0033955)
BARNES & THORNBURG LLP
1717 Pennsylvania Avenue N.W., Suite 500
Washington D.C. 20006-4623
Tel: (202) 371-6363 | Fax: (202) 289-1330
[email protected]

David DeVillers (Ohio No. 0059456)

C. David Paragas (Ohio No. 0043908)
BARNES & THORNBURG LLP
41 South High Street, Suite 3300
Columbus, Ohio 43215
Tel: (614) 628-0096 | Fax: (614) 628-1433
[email protected]
[email protected]

Counsel for Defendants

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing has been electronically served

this 27th day of August, 2021 with the Clerk of Court and served on all counsel of record using

the CM/ECF system.

/s/ William R. Martin

William R. Martin, Esq.

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