Prows v. City of Oxford

• Docket Number: 1:22-cv-693
• Decision Date: 07 June 2023
• Parties: TATE PROWS, Plaintiff, v. CITY OF OXFORD, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

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TATE PROWS, Plaintiff, v. CITY OF OXFORD, et al., Defendants.

No. 1:22-cv-693

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

June 7, 2023

Cole J.

ORDER AND REPORT AND RECOMMENDATION

Karen L. Litkovitz United States Magistrate Judge

On November 28, 2022, plaintiff initiated this civil rights action against the City of Oxford, Ohio (the “City”), its chief of police John Jones (“Chief Jones”), its mayor Michael Smith (“Mayor Smith”), its vice-mayor William Snavely (“Vice-Mayor Snavely”), its manager Doug Elliott (“Manager Elliott”), and all five of its councilors: Chantel Raghu (“Councilor Raghu”) Jason Bracken (“Councilor Bracken”), Glenn Ellerbe (“Councilor Ellerbe”), David Prytherch (“Councilor Prytherch”), and Edna Southard (“Councilor Southard”) (collectively “defendants”). This matter is before the Court on defendants' motion for judgment on the pleadings (Doc 20), plaintiff's objection (Doc. 33), and defendants' reply (Doc. 48). Plaintiff also filed a motion to convert defendant's motion into a motion for summary judgment, which is fully briefed. (See Docs. 27, 29, and 32).

I. Background^[1]

The crux of this lawsuit is the City's Ordinance No. 3579: “An Ordinance Prohibiting Mass. Gatherings of More Than Ten (10) Non-Household Members Within the City of Oxford, Ohio, to Limit the Spread of Covid-19, and Declaring an Emergency.” (See Doc. 1-2 at PAGEID 29-33) (the “mass-gatherings ordinance”).^[2]Plaintiff alleges that City councillors debated what would become the mass-gatherings ordinance in August 2020. (Doc. 7, PAGEID 131 at ¶ 1). City council unanimously passed the mass-gatherings ordinance on August 18, 2020. (Id., PAGEID 134 at ¶ 13; Doc. 1-2 at PAGEID 33).

Precipitated by, inter alia, the Covid-19 pandemic and state of emergency declared by Ohio Governor Mike DeWine (see Doc. 1-2 at PAGEID 29-31), the mass-gatherings ordinance stated in part as follows:

Section 1. All individuals within the City of Oxford are prohibited from hosting, maintaining or participating in mass gatherings in accordance with the following:

a. “Mass gatherings” for purposes of this Ordinance, means any social gathering, event or convening that brings together greater than ten (10) non-household persons at the same time, to include both indoor and outdoor gatherings.

b. “Non-household” for purposes of this Ordinance, means any individuals who do not reside within the same housing unit or dwelling.

Section 2. The mandatory prohibition on mass gatherings through this Ordinance does not apply in the following situations:

a. Normal operations at bus stops or hubs, medical facilities, libraries, shopping malls and centers, or other spaces where more than ten (10) persons may be in transit.

b. Typical office environments.

c. Schools and University classes or officially sanctioned functions.

d. Factories, warehouses and distribution centers. e. Retail, grocery stores, restaurants and bars where large numbers of people are present, but it is unusual for them to be within arm's length of one another.

f. Athletic and sporting events, including recreational and club sports.

g. Notwithstanding this Ordinance, buildings and venues that traditionally host mass gatherings, whether indoors or outdoors, may continue to be used for sanctioned community events.

h. This Ordinance does not apply to and/or excludes members of the media.

i. This Ordinance does not apply to and/or excludes religious gatherings, gatherings for the purpose of the expression of First Amendment protected speech, weddings and funerals.

(Id. at PAGEID 31-32). Violators of the ordinance were subject to civil penalties of $500.00 for the first violation and $1,000 for each violation thereafter. (Id. at PAGEID 32). The mass gatherings ordinance was effective only, by its terms, “during the pendency of State of Ohio Executive Order 2020-01D[,]” which ended on June 18, 2021.^[3](Id. at PAGEID 33).

Plaintiff's complaint includes allegations of specific conduct by certain defendants. Chief Jones, Manager Elliott, and Councilor Prytherch expressed some hesitation about/disapproval of the mass-gatherings ordinance during August 4 and 18, 2020 City council meetings. (See Doc. 7, PAGEID 132 at ¶¶ 3-8; PAGEID 134 at ¶ 13; PAGEID 136 at ¶ 21; and PAGEID 149 at ¶ 67). Chief Jones enforced the mass-gatherings ordinance. (See Doc. 7, PAGEID 132, ¶ 6). Vice-Mayor Snavely stated that the mass-gatherings ordinance should have contained steeper fines during an interview with CNN after the mass-gatherings ordinance passed. (Id., PAGEID 134 at ¶ 15; PAGEID 147-48 at ¶ 60). Councilor Bracken advocated for steeper fines prior to the mass-gatherings ordinance's passage. (Id., PAGEID 133 at ¶ 10; PAGEID 149 at ¶ 66). Councilor Southard also advocated for associated punishments that “carried some weight” prior to the mass-gatherings ordinance's passage. (Id., PAGEID 131 at ¶ 2). Councilor Raghu inquired whether an exemption for extended families could be included prior to the mass-gatherings ordinance's passage. (Id., PAGEID 143 at ¶ 42). Plaintiff's amended complaint does not reference any specific conduct by Mayor Smith or Councilor Ellerbe.

Against the five City Councillors collectively, plaintiff alleges that they “h[e]ld the false belief that their ordinances carry the same weight as laws” (id., PAGEID 133 at ¶ 9) and voted to pass the mass-gatherings ordinance despite concerns raised by Chief Jones (id.; id., PAGEID 149 at ¶ 68). Plaintiff also generally alleges that the conduct of all defendants was wanton or reckless. (Id., PAGEID 125-26 and 130; PAGEID 150 at ¶ 72).

Plaintiff does not allege that the mass-gatherings ordinance was enforced (or threatened to be enforced) against him. Plaintiff alleges that he “was chilled and deterred from exercising his First Amendment right.” (Id., PAGEID 135 at ¶ 16). Plaintiff further alleges that he was unable to gather with his larger family during the “Holiday Season of 2020, due to fear of having armed police officers show up to his door, without a warrant” to enforce the mass-gatherings ordinance. (Id.). Plaintiff alleges that this resulted in “severe emotional trauma and anxiety which manifest itself in numerous physical symptomologies.” (Id.).

Counts I through III of plaintiff's amended complaint allege violations of plaintiff's First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendment rights. Count IV alleges conspiracy under 42 U.S.C. § 1985(3). Count V alleges a general civil conspiracy claim. Plaintiff withdrew his negligent infliction of emotional distress claim. (Doc. 33 at PAGEID 375). Plaintiff seeks relief including his “right to reasonable attorney's fees” pursuant to the “common law Writ of Qui Tam” (id., PAGEID 146 at ¶ 55); the impaneling of a federal grand jury (id., PAGEID 151-52 at ¶¶ 79-80); compensatory damages; attorney fees pursuant to 42 U.S.C. § 1988; and punitive damages from the individual defendants.^[4]

II. Standard of Review

“For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). However, the Court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. at 581-82 (quoting Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). Put differently, defendants are entitled to judgment under Rule 12(c) if “no material issue of fact exists and [they are] entitled to judgment as a matter of law.” Id. at 582 (quoting Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991)).

To withstand a Rule 12(c) motion for judgment on the pleadings, like a Rule 12(b)(6) motion, “a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007) (citation omitted). “The factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual matter' to render the legal claim plausible, i.e., more than merely possible.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A “legal conclusion couched as a factual allegation” need not be accepted as true; and “a formulaic recitation of the elements of a cause of action” is insufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'” to withstand a Rule 12(c) motion. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

III. Analysis

A. Standing

It is plaintiff's burden to establish Article III standing-i.e., that there is a case or controversy appropriate for judicial disposition under the Constitution. See U.S. CONST. art. III, § 2; Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 581 (6th Cir. 2016) (“Plaintiffs bear the burden of establishing standing.”). To do so, plaintiff must show:

“(1) [he] has

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