Phillips v. City of Cincinnati
| Decision Date | 29 May 2019 |
| Docket Number | Case No. 1:18-cv-541 |
| Parties | JOSEPH PHILLIPS, Plaintiff, v. CITY OF CINCINNATI, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
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)1 and the parties' responsive memoranda (Docs. 41, 43, 44, 45). Also before the Court is Defendants Hamilton County, Hamilton County Court of Common Pleas, and Hamilton County Prosecutor Joseph T. Deters (collectively, "Hamilton County Defendants")'s motion to dismiss (Doc. 26) and the Plaintiff's memorandum in opposition (Doc. 37).
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).3 Cincinnati has approximately 16,000 affordable homes and apartments, but approximately 56,000 individuals are in need of affordable housing. (Doc. 34-3, Ex. G). Moreover, only .9% of the City's 2018 budget and .5% of the City's 2019 budget was allocated to combating homelessness and providing social services to individuals experiencing homelessness. (Doc. 34-1 ¶ 26). In short, this is a significant case; and it is by no means finished.
Plaintiff Joseph Phillips,4 a Cincinnati resident who has been without indoor shelter for ten years, brought this action on August 3, 2018 to challenge theconstitutionality of the City's homeless encampment policy (the "Encampment Policy") and filed a motion for a temporary restraining order (Doc. 2) to enjoin the City from requiring individuals encamped on Cincinnati's Third Street, between Walnut Street and Vine Street (the "Third Street Camp") to vacate the area on that day at 2:00 p.m. In justifying the need to clean and maintain the Third Street Camp, Mayor Cranley stated: "Allowing activists to organize homeless camps in public rights-of-way poses a direct threat to public health and safety for those staying in encampments, and people who visit and work near these areas . . . This is a public health emergency and we are required to respond in a way that ensures safety." (Doc. 34-1 ¶ 67).
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 the state action was narrowly drawn as it would permit the residents of the Third Street Camp to return after only two hours. (Doc. 4). The residents of the Third Street Camp complied with the Court's Order, the encampment was cleaned, and residents returned. The City gathered no evidence of human waste in or near the camp, nor did the City find evidence of illegal drug use. (Doc. 34-1 ¶ 70).
After the residents returned to the Third Street Camp, proposed Defendant Cincinnati Mayor John J. Cranley released the following statement:
It is unacceptable that individuals and activists continue to illegally camp with tents in the right-of-way. This presents a clear and present health and safety hazard to homeless individuals and the general public. The city is working hard to end this. This afternoon, I also asked for and have obtained the assistance of Hamilton County Prosecutor Joe Deters. Prosecutor Deters will be filing actions in state court and we will file motions in federal court. I thank Prosecutor Deters for his help in this matter. Together we will continue to pursue all strategies to end this unsafe practice. I ask for patience as we pursued appropriate court orders.
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,5 alleging that homeless encampments violated Ohio laws. (Id., Ex. N). Based on findings presented by Cincinnati Police Captain Michael Neville, assistant to the city manager Kelly Carr, and Interim Health Commissioner Marilyn Crumpton, the state court entered a temporary restraining order mandating that encampments south of Central Parkway to the Ohio River be cleared. (Id., Ex. O at 174).
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 theEast 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).6
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 Defendants7; (3) provide additional factual allegations, including statistics on shelter-space availability and shelterpolicies that prevent homeless individuals from obtaining shelter (see Doc. 34-1 ¶¶ 29-52); (4) supplement Count Three to include a substantive due process claim; and (5) add a claim of gross negligence under Ohio Revised Code ("R.C") 2744.02(A), interfering with civil rights R.C. 2921.45, and sham legal process under R.C. 2921.52.
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:
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