TIMOTHY S. BLACK, District Judge.
This civil action is before the Court on Plaintiff Joseph Phillip's corrected motion for leave to file third amended complaint (the "motion to amend") (Doc. 34)
This case arises out of a City of Cincinnati (the "City" or "Cincinnati") policy banning homeless encampments. Plaintiffs' Third Amended Complaint highlights the crisis of homelessness throughout Cincinnati. According to data compiled by the United States Department of Housing and Urban Development ("HUD"), Cincinnati has approximately 7,740 citizens who will experience homelessness during a calendar year, of whom 1,774 are children. (Doc 34-1 ¶ 24).
Plaintiff Joseph Phillips,
On August 3, 2018, the Court held a hearing on Plaintiff's temporary restraining order and ultimately denied the motion, finding that the City had a compelling interest to clean and maintain public property, especially when there are public health concerns, and that
After the residents returned to the Third Street Camp, proposed Defendant Cincinnati Mayor John J. Cranley released the following statement:
(Doc. 34-3, Ex. M at 130).
Mayor Cranley's request for assistance from Defendant Hamilton County Prosecutor Deters came to fruition on August 6, 2018 when Hamilton County filed a lawsuit against the City in the Hamilton County Court of Common Pleas,
In order to comply with the August 6 state court order, residents of the Third Street Camp moved north of Central Parkway. (Doc. 34-1 ¶ 79). The following day, in response to the relocation of the homeless encampment, the Hamilton Court of Common Pleas granted Defendant Deters' motion to amend the area covered by the initial temporary restraining order "to include the additional area between I-71 and I-75 on the East and West and St. Route 562 on the North." (Doc. 34-3, Ex. P at 179).
In response to the amended state court order, Plaintiff Phillips filed a second motion for a temporary restraining order in this Court. (Doc. 7). The Court held a hearing on August 8, 2019 on Plaintiff's second motion for temporary restraining order and heard oral arguments from counsel as well as testimony from witnesses for the City. The Court ultimately denied the motion primarily because Plaintiff failed to submit clear and convincing evidence that he was unable to obtain a bed at a shelter in Cincinnati. (Doc. 19).
Following this Court's Order, on August 9, 2018, camp residents relocated to Gilbert Avenue in Cincinnati because it was outside the area covered by the amended state court temporary restraining order. (Doc. 34-1 ¶ 82). However, that same day the Hamilton Court of Common Pleas issued a second amended temporary restraining order to "include the entire geographic area of Hamilton County, Ohio but shall only be enforced so long as there is shelter space available." (Doc. 34-3, Ex. Q at 186). The Hamilton County Court of Common Pleas signed and entered a permanent injunction on August 16, 2018 (the "State Court Order"). (Doc. 34-3, Ex. S). The State Court Order requires the City to enforce the Encampment Policy and state laws R.C. 2911.21 (criminal trespass) and R.C. 3767 (public nuisance) by abating nuisance conditions associated with homeless encampments by maintaining public rights-of-way against their use as unlicensed and illegal encampments, removing illegal encampments from private properties that do not meet the Ohio Administrative Code campground requirements, such as having running water and toilet facilities, and seize any tents or other shelters being used in connection with unlicensed and illegal encampments and store these items for a period of 60 days, except that soiled items, garbage, and refuse shall be discarded. (Id.)
On August 29, 2018, Defendant City of Cincinnati filed an answer to the Second Amended Complaint. (Doc. 23). In lieu of an answer, Hamilton County Defendants filed a motion to dismiss on October 8, 2018. (Doc. 32). In conjunction with his response to the Hamilton County motion to dismiss (Doc. 37), Plaintiff filed a motion for leave to file a third amended complaint (Doc. 34). Plaintiff seeks to amend the complaint to (1) join Patrick T. Chin and the Greater Cincinnati Homeless Coalition as Plaintiffs, (2) join City Mayor John J. Cranley and City Solicitor Paula B. Muething as Defendants
The Third Amended Complaint alleges fourteen claims against various Defendants, yet for several claims it is very ambiguous which allegations apply to which Defendants and what facts support which claims. Upon review of the Third Amended Complaint and the facts alleged therein, the Court construes the fourteen counts as:
Both Defendant City of Cincinnati and Hamilton County Defendants oppose the motion to amend on different grounds. On November 29, 2018, the Court granted Judge Ruehlman's unopposed motion to dismiss. (Doc. 38). Both the Hamilton County Defendants' motion to dismiss and Plaintiff's motion to amend are ripe for review.
Pursuant to Fed. R. Civ. P. 15(a), "leave to amend a pleading shall be freely given when justice so requires." Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (citing Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). Rule 15(a) embodies "a liberal policy of permitting amendments to ensure the determinations of claims on their merits." Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987). In deciding a party's motion for leave to amend, the Sixth Circuit has instructed district courts to consider several elements, including "[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendments . . .." Coe, 161 F.3d at 341. In the absence of any of these findings, leave should be "freely given." Foman v. Davis, 371 U.S. 178, 182 (1962).
Ultimately, determination of whether justice requires the amendment is entrusted to the sound discretion of a district court. Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986).
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the sufficiency of the complaint and permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." To show grounds for relief, Fed. R. Civ. P. 8(a) requires that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief."
While Fed. R. Civ. P. 8 "does not require `detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. 544). Pleadings offering mere "`labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Id. (citing Twombly, 550 U.S. at 555). In fact, in determining a motion to dismiss, "courts `are not bound to accept as true a legal conclusion couched as a factual allegation[.]'" Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265 (1986)). Further, "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Id.
Accordingly, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. A claim is plausible where a "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility "is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief,'" and the complaint as to any particular, applicable defendant shall be dismissed. Id. (citing Fed. Rule Civ. P. 8(a)(2)).
The Court will first address the City's opposition to Plaintiffs' motion to amend. Second, the Court will address Hamilton County Defendants' motion to dismiss and opposition to Plaintiff's motion to amend.
The City opposes Plaintiffs' motion to amend on two grounds: (i) the City opposes adding Mayor Cranley and the City Solicitor Muething as defendants because the proposed pleading fails to state a cognizable claim against the individuals, and (ii) the City opposes the proposed pleading because its newly alleged state law claims fail as a matter of law. Therefore, on these two grounds, the City argues the motion to amend is futile. "[L]eave to amend may be denied where the amendment would be futile." Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003)). "A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss." Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). For purposes of a motion to dismiss, the Court must: (1) view the complaint in the light most favorable to the plaintiff; and (2) take all well-pleaded factual allegations as true. Tackett v. M & G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
The City contends that Mayor Cranley and City Solicitor Muething are not proper defendants in regards to Count X of the proposed Third Amended Complaint, brought under Monell v. N.Y. City, Dep't of Soc. Servs., 436 U.S. 658 (1978). Monell imposes municipal liability under 42 U.S.C. § 1983 when (1) a constitutional violation has occurred and (2) the municipality "is responsible for that violation," Doe v. Claiborne Cnty., 103 F.3d 495, 505 (6th Cir.1996), based on the "execution of a government [ ] policy or custom," Monell, 436 U.S. at 694.
Plaintiffs allege that the City, Mayor Cranley, and City Solicitor Muething are liable under Monell because they were acting under state law when citing, arresting, or imprisoning citizens pursuant to the State Court Order, the Encampment Policy, or Ohio law and should have known they were violating Plaintiffs' constitutional rights. At this stage, the City does not oppose the Monell claim against the City itself, only the Monell claim pertaining to Mayor Cranley and City Solicitor Muething. Plaintiffs argue that Mayor Cranley and City Solicitor Muething are proper defendants under Monell in both their official and individual capacities.
The Court agrees with the City that Mayor Cranley and City Solicitor Muething are not proper defendants for this claim because the raison d'etre of Monell is to impose liability on a
Plaintiffs bring three state law claims against Mayor Cranley and City Solicitor Muething, which essentially allege that their purportedly collusive actions with Hamilton County Defendants led to the State Court Order, which violates Plaintiffs' constitutional rights. The City argues that these claims fail as a matter of law and that Mayor Cranley and City Solicitor are entitled to qualified immunity for each of these claims. Pursuant to R.C. 2744.03, employees of political divisions are immune from liability unless the "employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C. 2744.03(A)(6)(b). The Court will address each state law claim in turn.
Plaintiffs allege that Defendants' gross negligence caused Plaintiffs to suffer deprivations of constitutional rights. The Third Amended Complaint identifies to two acts by Mayor Cranley and one act by City Solicitor Muething that Plaintiffs contend were made with gross negligence:
The Sixth Circuit has recognized that gross negligence is hard to define:
Jones v. Sherrill, 827 F.2d 1102, 1106 (6th Cir. 1987) (internal quotation marks omitted)
By that definition, a claim of gross negligence would need to identify the precise risk and harm. Here, while Plaintiffs allege that Defendants' conduct was grossly negligent, they fail to assert with any specificity what risk followed each of the actions identified or acted unreasonably in disregarding probability of those unidentified risks. Therefore, Plaintiffs fail to adequately plead any acts that constitute gross negligence.
Accordingly, Plaintiffs' motion to amend is denied to the extent it seeks to add a claim for gross negligence.
The Third Amended Complaint includes a claim against Mayor Cranley, City Solicitor Muething, and Prosecutor Deters for interfering with civil rights. The statute at issue provides:
R.C. 2921.45
Yet this claim fails as a matter of law because R.C. 2921.45 is a criminal statute. Courts in Ohio have held that a plaintiff cannot assert claims based on an alleged violation of a criminal statute because "[c]riminal violations are brought not in the name of an individual party but rather by, and on behalf of, the state of Ohio or its political subdivisions." Biomedical Innovations, Inc. v. McLaughlin, 103 Ohio App.3d 122, 126, 658 N.E.2d 1084, 1086 (1995); see also Brunson v. City of Dayton, 163 F.Supp.2d 919, 928 (S.D. Ohio 2001) (dismissing claim brought pursuant to R.C. 2921.45 because it is a criminal statute); Thompson v. Rings, No. 2:08-CV-230, 2008 WL 4981387, at *3 (S.D. Ohio Nov. 18, 2008), report and recommendation adopted, No. 2:08-cv-230, 2008 WL 5130417 (S.D. Ohio Dec. 4, 2008) ("It is clear, however, that Ohio criminal statutes do not give rise to civil liability.").
Accordingly, Plaintiffs' motion to amend is denied to the extent it seeks to add a claim for interfering with civil rights.
The final state law claim in the Third Amended Complaint is for "sham legal process," brought under R.C. 2921.52.
Section 2921.52(B) provides that "[n]o person shall, knowing the sham legal process to be sham legal process, do any of the following:"
"Sham legal process" is an instrument that meets all of the following conditions:
R.C. 2921.52(A)(4).
The statute defines "lawfully issued" as "adopted, issued, or rendered in accordance with the United States constitution, the constitution of a state, and the applicable statutes, rules, regulations, and ordinances of the United States, a state, and the political subdivisions of a state." R.C. Ann. § 2921.52(A)(1) (West).
Plaintiffs contend that Prosecutor Deters, Mayor Cranley, and City Solicitor used a sham legal process in obtaining the State Court Order because they were aware that there was no bona fide case or controversy between the City and Hamilton County.
Plaintiffs argue that the State Court Order was not lawfully issued because the matter was not justiciable as required by the Ohio Constitution. The Ohio Court of Appeals recently analyzed what constitutes a "justiciable matter":
Waldman v. Pitcher, 2016-Ohio-5909, ¶¶ 21-22, 70 N.E.3d 1025, 1030-31
Here, the Court finds that Plaintiffs have adequately alleged facts, at this motion to dismiss stage, that demonstrate that the City and Hamilton County did not have adverse legal interests in the state court proceeding. Because the parties were not adverse, there arguably was no justiciable matter before the Hamilton County Court of Common Pleas. Because, arguably, there was no justiciable matter before the state court, the State Court Order arguably was not rendered in accordance with the Ohio or United States Constitution and hence, arguably, the State Court Order was not lawfully issued. Plaintiffs have also adequately pleaded (but not yet proven) that the State Court Order deprived them of their constitutional rights and that it was intended to be used to make others believe it was lawfully issued. Therefore, the Court finds that Plaintiffs have stated a cognizable claim against Mayor Cranley for use of sham legal process.
However, the Court finds that Plaintiffs have not alleged facts that demonstrate that the City Solicitor used a sham legal process. The only allegation against the City Solicitor for this claim is that she represented to this Court that residents of the Third Street Camp would not be prevented from returning to their campsite after the City completed the August 3, 2018 cleaning. The Court finds that this single accusation falls well short of the pleading standard of Federal Rule of Civil Procedure 8 and does not state a cognizable claim against the City Solicitor. Accordingly, Plaintiffs claim for sham legal process against City Solicitor fails as a matter of law.
Next, the City argues that the Mayor is entitled to qualified immunity pursuant to R.C. 2744.03, which makes him immune from suit unless his "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C. 2744.03(A)(6)(b). Plaintiffs contend that the Mayor's request that Prosecutor Deters sue the City in order to make homeless encampments illegal was done with a malicious purpose, in bad faith, or in a wanton or reckless manner.
LeFever v. Ferguson, 956 F.Supp.2d 819, 839 (S.D. Ohio 2013), aff'd, 645 F. App'x 438 (6th Cir. 2016).
The Court finds that Plaintiffs have alleged plausible facts that a reasonable jury could find that Mayor Cranley acted with a dishonest purpose and therefore in bad faith. Facts uncovered in discovery may ultimately show that Mayor Cranley was not acting in bad faith when he asked Hamilton County to sue the City, but at the motion to amend/motion to dismiss stage, Plaintiffs have plausibly alleged that the Mayor acted in bad faith in using a sham legal process to remove homeless encampments from the City and Hamilton County. Therefore, Mayor Cranley is not entitled to qualified immunity on the sham legal process claim.
Accordingly, Plaintiff's motion to add a sham legal process claim against City Mayor Cranley, in his official capacity, is granted, but Plaintiff's motion to add a sham legal process against the City Solicitor is denied. Therefore, Plaintiff's motion to amend is denied to the extent it seeks to add City Solicitor Muething as a defendant.
The Third Amended Complaint brings claims against three Hamilton County Defendants: Hamilton County Court of Common Pleas, Hamilton County, and Prosecutor Deters. Hamilton County Defendants seek to dismiss all claims in the Second Amended Complaint and oppose Plaintiffs' motion for leave to file the Third Amended Complaint. The Court will apply the arguments in the briefings on both motions to determine if all claims against Hamilton County Defendants fail as a matter of law. Hamilton County Defendants argue that Plaintiffs claims fail for several reasons—including lack of standing and that Plaintiffs' request for injunction is moot. While the Court finds those arguments to be unmeritorious, ultimately each of the Hamilton County Defendants should be dismissed on different grounds.
Plaintiffs claims against Hamilton County Court of Common Pleas fail because Ohio common pleas courts in Ohio qualify as arms of the state, and therefore "are immune from suits brought by citizens of Ohio." Lott v. Marietta Mun. Court, No. 2:13-CV-00377, 2013 WL 6662836, at *4 (S.D. Ohio Dec. 17, 2013) (compiling Sixth Circuit and Southern District of Ohio decisions finding the same). The Ohio Supreme Court has held:
Malone v. Court of Common Pleas of Cuyahoga County, 45 Ohio St.2d 245, 248 (1976) (internal quotation marks and citations omitted).
Accordingly, Hamilton County Court of Common Pleas is not a proper defendant and all claims against it are dismissed.
Generally, Hamilton County is not sui juris and therefore cannot be sued. See Lowe v. Hamilton County Dept. of Job & Family Services, No. 1:05-cv-117, 2008 WL 816669, at *2 (S.D. Ohio Mar. 26, 2008) (finding that Hamilton County is not sui juris and suit must therefore be brought against its commissioners for the county's violation of an individual's rights). However, here, Plaintiffs brings Monell liability claims against Hamilton County under § 1983. Courts have found that a county is amenable to suit for purposes of a Monell claim under § 1983. See, e.g., Smith v. Grady, 960 F.Supp.2d 735, 744 (S.D. Ohio 2013) ("Hamilton County is not entitled to sovereign immunity under the Eleventh Amendment, and it may be sued in this Court under the ADA, Title VII, ADEA and FMLA regardless of its ability to sue or be sued under state law."); Stack v. Karnes, 750 F.Supp.2d 892 (S.D. Ohio 2010) (finding "the immunity afforded by the Eleventh Amendment [to be] inapplicable to Franklin County"). Therefore, the Court must consider whether Plaintiffs have pleaded a viable Monell claim against Hamilton County.
As discussed supra, to succeed on a Monell claim brought under § 1983, a plaintiff must prove that his "constitutional rights were violated and that a policy or custom of the municipality was the moving force behind the deprivation of the plaintiff's rights." Miller v. Sanilac Cnty., 606 F.3d 240, 254-55 (6th Cir. 2010). Thus, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell, 436 U.S. at 694. Nor does § 1983 permit a plaintiff to sue a government entity on the theory of respondeat superior. Gregory v. City of Louisville, 444 F.3d 725, 752-53 (6th Cir. 2006). "A plaintiff may only hold a local government entity liable under Section 1983 for the entity's own wrongdoing [which occurs when . . .] its official policy or custom actually serves to deprive an individual of his or her constitutional rights." Id. A government entity's policy or custom can be unconstitutional in two ways: (1) it can be facially unconstitutional as written or articulated or (2) it can be "facially constitutional but consistently implemented to result in constitutional violations with explicit or implicit ratification by city policymakers." Id.
There are four types of Monell claims under which a plaintiff may prove the existence of a government entity's illegal policy or custom: "(1) the municipality's legislative enactments or official agency policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations." Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
The Third Amended Complaint contains no allegations that Hamilton County had an official illegal policy or custom. Instead the only potential allegation that Defendant Hamilton County had an illegal policy or custom relates to the action of Defendant Prosecutor Deters as an official with final decision-making authority. In Ohio, "a county prosecutor has final decision-making authority with regard to the operation of their offices and discharge of their duties. Burchwell v. Warren Cty., Ohio, No. 1:13-cv-297, 2014 WL 1271058, at *2 (S.D. Ohio Mar. 27, 2014), aff'd, 582 F. App'x 656 (6th Cir. 2014) (citing Stone v. Holzberger, 807 F.Supp. 1325, 1335 (S.D. Ohio 1992) aff'd, 23 F.3d 408 (6th Cir.1994) (citing Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Therefore, Prosecutor Deters is a final decision-maker for the purpose of Hamilton County municipal liability.
Regarding Plaintiffs' Monell claim, the only action taken by Prosecutor Deters is that he "acted in [his] official capacity and under color of law when filing a Complaint and Motion for Ex Parte Temporary Restraining Orders in case number A1804285." (Doc. 34-1 ¶ 164). Even assuming arguendo that this single action by Prosecutor Deters was unconstitutional, "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 824, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Again, Plaintiffs do not identify any existing, unconstitutional policy
Accordingly, Hamilton County is dismissed from this action.
Hamilton County Defendants contend that Prosecutor Deters is entitled to absolute immunity because his actions were "intimately associated with the judicial phase of the criminal process." Willitzer v. McCloud, 6 Ohio St.3d 447, 449, 453 N.E.2d 693 (1983) (citing Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). "State prosecutors are absolutely immune from civil liability when acting within the scope of their prosecutorial duties." Howell v. Sanders, 668 F.3d 344, 349 (6th Cir. 2012) (citing Imbler v. Pachtman, 424 U.S. at 420).
A prosecutor is acting within the scope of their prosecutorial duties when "preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Resembling the allegations before the Court, absolute prosecutorial immunity has been extended in this district to "claims that the prosecutors conspired with the judge and the other defendants to obtain a wrongful conviction are barred by absolute immunity." Brooks v. Harcha, No. 1:10-CV-077, 2010 WL 597808, at *4 (S.D. Ohio Feb. 17, 2010). "Absolute prosecutorial immunity exists even when a prosecutor acts wrongfully or maliciously." Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989).
The Court finds that Plaintiffs have plausibly pleaded that Prosecutor Deters used a sham legal process to deprive Plaintiffs of their constitutional rights. Moreover, Plaintiffs have even alleged facts that, if true, support the conclusion that Prosecutor Deters acted wrongfully and in bad faith in bringing the nuisance action, knowing that it was not a true adversarial proceeding. Nevertheless, bringing a nuisance action clearly falls within the scope of Prosecutor Deters' prosecutorial duties. Therefore, Prosecutor Deters is entitled to the protections of absolute immunity.
The Supreme Court is cognizant that absolute prosecutorial immunity "does leave the genuinely wronged [party] without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest." Imbler, 424 U.S. at 427. Plaintiffs could be one such genuinely wronged party, but Prosecutor Deters is protected by absolute immunity and all claims against him are dismissed.
Accordingly, for the reasons reflected above, the Court
