Phillips v. City of Cincinnati, Case No. 1:18-cv-541

• Decision Date: 13 August 2020
• Docket Number: Case No. 1:18-cv-541
• Citation: 479 F.Supp.3d 611
• Parties: Joseph PHILLIPS, et al., Plaintiffs, v. CITY OF CINCINNATI, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

479 F.Supp.3d 611

Joseph PHILLIPS, et al., Plaintiffs,

v.CITY OF CINCINNATI, et al., Defendants.

Case No. 1:18-cv-541

United States District Court, S.D. Ohio, Western Division.

Signed August 13, 2020

David M. Cook, Bennett P. Allen, Cook & Logothetis, LLC, Jennifer M. Kinsley, The Law Office of Jennifer Kinsley, Cincinnati, OH, Andrew Casey Geronimo, Kramer Law Clinic, Cleveland, OH, for Plaintiff Joseph Phillips.

Bennett P. Allen, Cook & Logothetis, LLC, Cincinnati, OH, for Plaintiffs Patrick Chin, Greater Cincinnati Homeless Coalition.

Erica Faaborg, City of Cincinnati, Peter J. Stackpole, Cincinnati, OH, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT

Timothy S. Black, United States District Judge

This civil case is before the Court on Defendants City of Cincinnati (hereinafter the "City" or "Defendant") and Mayor John Cranley's motion to dismiss Plaintiffs’ third amended complaint (Doc. 51) and the parties’ responsive memoranda (Docs. 53, 55). Plaintiffs claim that Defendants’ policy and custom of making homeless encampments illegal throughout the City of Cincinnati violates their constitutional rights. Defendants deny all liability.

I. OVERVIEW

The measure of a just society is how it treats its most vulnerable members. One can have a good debate on how to do that properly, but let us agree that it must be our goal.

Here, the City has determined to deal with the homeless (the unhoused) by outlawing homeless encampments. This federal lawsuit inevitably followed. The City has now moved to dismiss the lawsuit three times.

At this stage of the lawsuit, the Court must determine which, if any, of Plaintiffs’ eleven claims should be dismissed, and which, if any, should remain pending. That is, which claims, if any, contain sufficient factual allegations, accepted as true, adequate to state a claim to relief that is plausible on its face. Plausibility is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. At this stage of the lawsuit, the Court must view the complaint in the light most favorable to Plaintiffs, and take all well-pleaded factual allegations as true.

Recognizing that Plaintiffs have not proven anything yet, the Court decides in this Order that Plaintiffs may now proceed on seven claims.

The legal reasoning behind this determination is substantial and complex, requiring over 80 pages of written work. Accordingly, in this Section I, the Court first offers this short summary in attempted plain English.

Plaintiffs have adequately pled (presented) an Eighth Amendment claim of cruel and unusual punishment. (Count IV). The Eighth Amendment prohibits cruel and unusual punishments. Jailing people for living in homeless encampments, if and when there is no shelter available, could constitute cruel and unusual punishment. Plaintiffs have provided enough facts to go forward on their claim that housing is not available for some specific unhoused people, nor for all, and, therefore, jailing people for being unhoused is cruel and unusual punishment.

Plaintiffs have adequately presented that the Permanent Injunction making homeless encampments illegal violates Plaintiffs’ First Amendment right to free speech. (Count I (as narrowed)). The First Amendment protects citizens’ right to free speech. Living outside in a homeless encampment could be considered an expression of free speech. Here, Plaintiffs have provided enough facts to go forward on their claim that the Cincinnati homeless encampments were an expression of free speech to call attention to the crisis of the shortage of affordable housing shortage in Cincinnati, and that the Permanent Injunction unlawfully restricts that expression.

Plaintiffs have adequately presented a claim for violation of the constitutional right to travel. (Count VI). The Fourteenth Amendment promises citizens the virtually unfettered ability to lawfully and freely travel. Citing and arresting unhoused persons for sleeping in public spaces could violate the right to travel by denying unhoused people the necessity of a safe place to sleep, rest, and recuperate. Plaintiffs have provided enough facts to go forward on their claim that the bar on homeless encampments, if and when housing is not available for certain specific unhoused individuals, nor for all, unlawfully burdens the right to travel.

Plaintiffs have adequately presented a Fourteenth Amendment substantive due process claim. (Count VIII). The Fourteenth Amendment protects citizens from state actions that increase their risk of harm (i.e. , a state-created danger). If the City is requiring the homeless to vacate well-lit and high-traffic public land, or go to jail, when housing is not available for some specific unhoused people, nor for all, and taking and destroying their tents, tarps, blankets, clothing, and other property, then the City may be creating an unlawful state-created danger for the homeless. Plaintiffs have provided enough facts to go forward on their claim that the City's bar on homeless encampments is an unlawful state-created danger in violation of the Fourteenth Amendment.

Plaintiffs have adequately presented a Fourteenth Amendment procedural due process claim. (Count III). The Fourteenth Amendment protects citizens from having their life, liberty, or property taken away without due process (i.e. , it requires fairness in process). Confiscating or destroying property without fair notice could be a due process violation. Here, Plaintiffs have provided enough facts to go forward on their claim that the City has failed to provide adequate notice regarding the collection or destruction of their property.

Plaintiffs have adequately presented a claim that Ohio's criminal trespass statute, Ohio Revised Code § 2911.21(A)(1)(B), is unconstitutionally vague as applied to persons, including Plaintiffs, who seek shelter on public property. (Count X). A statute may be unconstitutionally vague if it does not provide adequate notice to citizens that they might be subjected to a loss of personal liberty or property for engaging in a certain activity. Plaintiffs have provided sufficient facts to go forward on their claim that Ohio's criminal trespass statute may be unconstitutionally vague, as applied to them by the City, for not providing adequate notice that individuals may be deprived of liberty or property interests for sheltering in a public space.

Plaintiffs have adequately presented a Monell liability claim. (Count IX). Monell liability allows citizens to hold a municipality responsible for policies and customs that lead to a constitutional violation. If the City has a policy or custom of evicting and arresting unhoused persons residing in homeless encampments, that leads to or causes constitutional violations, the City could be liable. Plaintiffs have provided sufficient facts to go forward on their claim that the City has a policy or custom of evicting and arresting unhoused persons who cannot secure shelter, and that the City's policy or custom has violated Plaintiffs’ constitutional rights.

Plaintiffs have not proven anything yet ... nor are they required to at this stage of the lawsuit.

However, based on Plaintiffs’ allegations in their Third Amended Complaint, Plaintiffs are entitled to proceed to discovery (collection of evidence) and subsequent summary judgment proceedings (motions for judgment without trial) on these seven claims.

After summary judgment proceedings, if any of Plaintiffs’ seven claims survive, those claims shall proceed to trial by jury.¹

II. FACTUAL BACKGROUND

For purposes of Defendants’ motions to dismiss, the Court must: (1) view the complaint in the light most favorable to Plaintiffs, and (2) take all well-pleaded factual allegations as true. Bickerstaff v. Lucarelli , 830 F.3d 388, 396 (6th Cir. 2016).

On May 29, 2019, this Court granted in part and denied in part Plaintiffs’ motion for leave to file a third amended complaint. (Doc. 46). Plaintiffs’ third amended complaint joins Patrick T. Chin and the Greater Cincinnati Homeless Coalition as Plaintiffs and joins Cincinnati Mayor John J. Cranley as a defendant. (Doc. 47). Plaintiffs Joseph Phillips and Patrick Chin are Cincinnati residents who have been without shelter for ten and three years, respectively. (Id. at ¶¶ 51, 52). Both Plaintiffs have been threatened with arrest for living outdoors. (Id. ¶¶ 51, 52, 62). Phillips and Chin bring this action on behalf of themselves and similarly situated residents of Cincinnati and Hamilton County who experience homelessness, lack fixed nighttime shelter, and who have been threatened with arrest or have been arrested pursuant to the City's enforcement of its homeless encampment policy. (Id. at ¶ 89). The third named Plaintiff, the Greater Cincinnati Homeless Coalition, is a non-profit organization whose mission is to end homelessness, focusing on Hamilton County and the City of Cincinnati. (Id. at ¶ 53).

Plaintiffs’ action against Mayor Cranley and the City of Cincinnati seeks declaratory and injunctive relief. Plaintiffs seek a declaration that the City's policy governing "police interaction with homeless encampments" ("Policy 12.111") violates the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. (Id. at 31). In addition, Plaintiffs seek to enjoin the City from "arresting citizens experiencing homelessness" and "seizing or destroying their property" pursuant to Policy 12.111 and/or a Permanent Injunction issued by the Hamilton County Court of Common Pleas prohibiting homeless encampments. (Id. at ¶¶ 1-2). Plaintiffs also seek compensatory damages for their lost, damaged, or destroyed property. (Id. at 31).

Without access to shelter, Plaintiffs Phillips and Chin have lived at various outdoor locations. (Id. at ¶¶ 51, 52). Joseph Phillips has resided at upwards of 100 outside locations but has had to abandon those locations because the...