IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

NICHOLAS ALSTON, etc., at ai. : CASE NO. 18-cv-247

Plaintiffs, : (Judge Walter Herbert Rice)

V. :

PLAINTIFFS' MOTION FOR

PHIL PLUMMER, Sheriff of : PRELIMINARY INJUNCTION

Montgomery County, Ohio

Defendant.

Now come the Plaintiffs on behalf of themselves and the inmate population of the

Montgomery County, Ohio Jail (the "Jail"), and move the Court for a preliminary injunction

instructing the Defendant to conform the inmate population of the Jail to the capacity standard of

443 individuals established by the State of Ohio and to adopt and implement policies and

procedures necessary for inmate and staff safety. The allegations of the Plaintiffs' complaint and

the exhibits attached thereto are incorporated by reference in this motion together with additional

media reports attached as Exhibits 10 through 13.

The Plaintiffs request that the Court in addressing this motion schedule (1) an in-person

Case Management Conference with counsel for the parties; (2) a hearing date for the presentation

of evidence with respect to this motion; and (3) a non-evidentiary Court inspection of the Jail as

an orientation to the evidence to be presented at the hearing.
Respectfully submitted,

/s/ Lawrence J. Greeer

Lawrence J. Greger (0002592)

GREGER LAW OFFICE

120 W. Second Street, Suite 1100

Dayton, OH 45402-1657

PHONE: (937)223-3153

FAX: (937) 223-3008

E-MAIL: larrv@gregerlawoffice.com

/s/ Anthony R. Cicero

Anthony R. Cicero (0065408)

CICERO ADAMS, LLC

500 East Fifth Street

Dayton, OH 45402-2914

PHONE: (937) 424-5390

FAX: (937) 424-5393

E-MAIL: tonvcicero@gocicero.com

/s/ David C. Greer

David C. Greer (0009090)

BIESER, GREER & LANDIS, LLP

6 North Main Street, Suite 400

Dayton, OH 45402-1908

PHONE: (937) 223-3277

FAX: (937) 223-6339

E-MAIL: dcg@.biesergreer.com

/s/ Ellis Jacobs

Ellis Jacobs (0017435)

ADVOCATES FOR BASIC LEGAL EQUALITY

130 West Second Street, Suite 700-E

Dayton, OH 45402-1501

PHONE: (937)228-8104

FAX: (937) 535-4600

E-MAIL: eiacobs@.ablelaw.org
/s/ Anthony S. VanNov

Anthony S. VanNoy (0067052)

ANTHONY S. VanNOY, INC.

130 West Second Street, Suite 1624

Dayton, OH 45402-1502

PHONE: (937) 952-5043

FAX: (937) 496-5393

E-MAIL: avannov@thevannovfirm.com

Attorneys for Plaintiffs

MEMORANDUM

I. The Problem

Unrest, volatility and violence among inmates. Excessive force employed in inmate

management. Mixing of non-violent inmates charged with first or minor offenses with violent

repeat offenders charged with or convicted of serious felonies. Gaps in provision of needed

medical care. Unreasonable infringement of inmate access to counsel or to contact with support

from family and friends. Continuing lock-downs resulting in unnecessary and unreasonably

punitive confinement of inmates. An increase in inmate tort claims with resulting public cost.

Inmate suicides.

These problems have triggered significant media attention and public concern in the

Dayton area. County Commissioners have established a committee and engaged an expert to

explore these problems. The problems should be a common concern of all parties to this lawsuit

and their respective public and private constituents. There are some remedial measures that can

be pursued by the legislative and executive branches of government and are unavailable to the

courts. There are also remedial measures that can be pursued by the courts and are unavailable

to the legislative and executive branches of government.
It is beyond dispute that the problems identified are impacted and exacerbated by

overcrowded prison conditions. They are also affected by the lack of proper staffing, and the

failure to implement proper policies addressing use of force, access to medical services, and the

use of lock-down. Appeals to reason can be effective when people interact on a one-to-one or

small group basis. Reason and its effects diminish as individuals turn into crowds. It disappears

as crowds become mobs which present a clear and present danger to individuals either within or

in contact with crowds.

II. The Constitutional Dimension

At some point policies and practices affected by overcrowding in jails impinge human

rights guaranteed by the United States Constitution. In such situations the courts have a

responsibility to remedy the resulting Eighth Amendment violations. The leading case on the

subject before this Court is Brown v. Plata, 563 U.S. 493 (2011). The Court noted that

overcrowding becomes a primary cause of violations of federal constitutional rights when it

overtakes the limited resources of prison staff and impacts the safety of both correctional

employees and inmates.

Prisoners retain the essence of human dignity inherent in all

persons. Respect for that dignity animates the Eighth Amendment

prohibition against cruel and unusual punishment.

563 U.S. at 510. Unconvicted inmates, who possess the presumption of innocence also enjoy

Fourteenth Amendment rights to be free from unconstitutional conditions of their confinement.

Cramped conditions promote unrest and violence, making it

difficult for prison officials to monitor and control the prison

population.

563 U.S. at 519. The constitutional dimensions are not unknown to the Defendant. The

Defendant was provided with the State Department of Rehabilitation and Corrections
recommended housing capacity of 443 for the Jail {Exhibit 3) as well as multiple recurring

reports of numbers dramatically in excess of that capacity, {e.g.. Exhibits 4 through 7). In the

Brown case "numerous experts testified that crowding is the primary cause of the constitutional

violations." 563 U.S. at 524. What experts opine is no more than what objective common sense

observes.

In this case, the jail is not only overcrowded. According to experts retained by

Montgomery County, it lacks an appropriate use of force policy, and there is evidence that it

lacks or fails to implement appropriate policies regarding access to medical services.

III. The Path to a Solution

There are two obvious ways to mitigate the serious problems created by prison

overcrowding: More space and staff or fewer bodies within the available space. Courts have no

power to order the construction or expansion of prisons, to raise taxes, or to allocate tax money

to increased staffing of jail facilities. On the other hand, the public entities that possess such

powers lack the power of the courts to alleviate overcrowded facilities by reducing the number of

individuals confined in such facilities. They also lack the power to order enforcement of Stateimposed policies and practices. Those tasks involve careful and focused judicial attention to

issues of public safety and the goals of the criminal justice system. But it is common knowledge

among lawyers and judges that many individuals confined in jails and prisons present little or no

risk to the public, while their confinement at public expense may be impeding the prospect of

returning them to useful roles as citizens who make positive contributions to society.
The procedural path by which a court like this Court can address the constitutional

problems created or impacted by overcrowding is set forth in § 3626 of Title 18 of the United

States Code. It is the path that was followed in the Northern District of Ohio in Roberts v.

County of Mahoning, 495 F.Supp.2d 694 (N.D. Ohio 2006).

If this Court, at the hearing requested by this motion, finds that the Plaintiffs are

entitled to relief, its obligation is to craft a preliminary injunction which provides the least

intrusive means necessary to correct the harm caused by overcrowding. That remedy shall not

provide any release of any current prisoner, and the Defendant shall be given a reasonable

amount of time to comply with the order. If it becomes apparent that the order has failed to

remedy the Plaintiffs' federal rights, it will then be appropriate for the Plaintiffs to seek a

prisoner release order and request the appointment of a three-judge panel to consider such an

order.

IV. Conclusion

The problem to be addressed has been widely and publicly acknowledged to be a

cause for public concern. It cannot be solved by simply stacking prisoners like cordwood in

available space. It is of constitutional proportions. The path to addressing and resolving the

problem is clearly delineated. This Court should hear and address the problem with due respect

for the rights of all persons, both those within and those without the confines of the Montgomery

County Jail.
Respectfully submitted,

/s/ Lawrence J. Greger

Lawrence J. Greger (0002592)

GREGER LAW OFFICE

120 W. Second Street, Suite 1100

Dayton, OH 45402-1657

PHONE: (937)223-3153

FAX: (937) 223-3008

E-MAIL: larrv@gregerlawoffice.com

/s/ Anthony R. Cicero

Anthony R. Cicero (0065408)

CICERO ADAMS, LLC

500 East Fifth Street

Dayton, OH 45402-2914

PHONE: (937) 424-5390

FAX: (937) 424-5393

E-MAIL: tonvcicero@gocicero.com

/s/ David C. Greer

David C. Greer (0009090)

BIESER, GREER & LANDIS, LLP

6 North Main Street, Suite 400

Dayton, OH 45402-1908

PHONE: (937) 223-3277

FAX: (937) 223-6339

E-MAIL: dcg@biesergreer.com

/s/ Ellis Jacobs

Ellis Jacobs (0017435)

ADVOCATES FOR BASIC LEGAL EQUALITY

130 West Second Street, Suite 700-E

Dayton, OH 45402-1501

PHONE: (937)228-8104

FAX: (937) 535-4600

E-MAIL: eiacobs@ablelaw.org
/s/ Anthony S. VanNov

Anthony S. VanNoy (0067052)

ANTHONY S. VanNOY, INC.

130 West Second Street, Suite 1624

Dayton, OH 45402-1502

PHONE: (937) 952-5043

FAX: (937) 496-5393

E-MAIL: avannov@thevannovFimi.com

Attomeys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on the 11^ day of September, 2018, I electronically filed the

foregoing document with the Clerk of Courts, United States District Court, Southern District of

Ohio, by way of the CM/ECF system which will send notification to all parties of record.

/s/ David C. Greer

David C. Greer (0009090)

4703.2I8I76.\ 685223.1