UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOSEPH PHILLIPS on Behalf of 

Himself and All Others Similarly 

Situated, 

Plaintiffs,

vs.

CITY OF CINCINNATI, et al.,

Defendants.

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Case No.: 1:18-cv-00541-TSB 

Judge Timothy S. Black

PLAINTIFF’S BRIEF IN 

OPPOSITION TO MOTION TO 

DISMISS BY DEFENDANTS 

HAMILTON COUNTY, HAMILTON 

COUNTY COURT OF COMMON 

PLEAS, AND JOSEPH T. DETERS 

PROSECUTING ATTORNEY

Plaintiff Joseph Phillips respectfully requests that this Court deny the Motion to 

Dismiss filed by Defendants Hamilton County (the “County”), the Hamilton County 

Court of Common Pleas, and Prosecuting Attorney Joseph T. Deters (“Prosecutor 

Deters”). (Doc. 26).

INTRODUCTION

In an approximately 400-square-mile area in Southern Ohio, Plaintiff Joseph 

Phillips and other chronically homeless people are subject to arrest merely because they 

are homeless. Certain officials in Cincinnati and Hamilton County, acting in their official 

capacities as government authorities, have effectively criminalized homelessness in all of 

the territory under their legal authority. 

In his Second Amended Class-Action Complaint for Injunctive Relief (the 

“Complaint”), Phillips pleads various constitutional and statutory causes of action 

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against Defendants the City of Cincinnati (the “City”), Hamilton County, Prosecutor 

Deters, the Hamilton County Court of Common Pleas, and Hamilton County Court of 

Common Pleas Judge Robert P. Ruehlman (“Judge Ruehlman”). (Doc. 16.) Specifically, 

Phillips’s Complaint alleges that after Phillips brought this lawsuit to enjoin the 

enforcement of City Policy 12.111 (the “Policy”) (Doc. 16-1) against the homeless people 

in Cincinnati, Prosecutor Deters improperly brought a civil action against the City in 

Hamilton County Common Pleas Case Number A1804285 before Judge Ruehlman (the 

“State Court Case”) seeking the Policy’s state court enforcement. (Doc. 16 at ¶¶23-28.) 

Phillips’s Complaint alleges that Prosecutor Deters brought the State Court Case 

even though the County and the City were not bona fide adversaries. (Id. at ¶¶28, 110.) 

Nonetheless, Prosecutor Deters agreed that Hamilton County would be bound by, and 

would enforce, Judge Ruehlman’s Order. (Doc. 26-1 at 12-17.) Judge Ruehlman then 

issued a series of temporary and permanent restraining orders in the State Court Case, 

including the Judgment Entry, Order and Permanent Injunction dated August 16, 2018 

(the “Order”) (Id. at 12-17), which have been used to threaten the homeless population in 

Cincinnati, and which underlie Phillips’s claims against Hamilton County. (Doc. 16 at 

¶¶28-29.) 

Phillips’s Complaint alleges that the actions of the City and County officials, acting 

in their official capacities, subjected the City and County to liability under 42 U.S.C. § 

1983 and Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) for violations of his civil rights. 

The Policy and Order challenged as unlawful in Phillips’s Complaint remain in effect. 

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Defendants’ actions, coupled with the County’s inadequate housing resources, place 

Phillips and other citizens experiencing homelessness in ongoing peril.

LAW AND ARGUMENT

I. Federal Rule of Civil Procedure 12(b)(6) standards

a. Plaintiff’s Second Amended Complaint states multiple valid claims. 

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) operates to test the 

sufficiency of the complaint and permits a Defendant to seek 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.” For the 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). In order “[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible where “plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant 

is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 

556). For the reasons detailed in this brief, Plaintiff’s Second Amended Complaint states 

multiple claims for which this Court can grant relief, and Defendant’s Motion to Dismiss 

should be denied. 

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b. This Court should disregard Defendants’ references to matters outside of the 

pleadings in considering the Motion to Dismiss. 

The Court should disregard the news articles (Doc. 26-1 at 1-11) and the references 

to the affidavits from the hearing on Phillips’s request for a temporary restraining order 

(Doc. 26 at 2, 5, 7, 10) in Defendants’ Motion to Dismiss. In considering a Rule 

12(b)(6) motion, a district court may not consider matters beyond the 

complaint. Mediacom Se. LLC v. BellSouth Telecomms., Inc., 672 F.3d 396, 399 (6th Cir. 2012). 

The news articles and affidavits referenced in Defendants’ Motion to Dismiss are not 

properly before this Court,1 and thus should not be considered in evaluating Phillips’s 

Complaint.

Moreover, temporary restraining order hearings are, by their nature, preliminary, 

and facts adduced at that stage should not be considered at later proceedings in the case, 

particularly in reviewing a 12(b)(6) motion. “The elaboration of these facts, contained in 

the affidavits supporting and objecting to the motion for temporary injunction, is not 

available for consideration, as these affidavits are a part of the record only for the purpose 

of determining the propriety of a temporary injunction.” Gibbs v. Buck, 307 U.S. 66, 76

 1 There are limited circumstances in which a court may consider certain information 

outside of the complaint without converting a motion to dismiss to a motion for summary 

judgment. For purposes of motions to dismiss, a court may consider “exhibits attached 

to the complaint, public records, items appearing in the record of the case and exhibits 

attached to defendant’s motion to dismiss as long as they are referred to in the complaint and 

are central to the claims therein.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th 

Cir. 2011) (emphasis added) (quoting Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008)).

The news articles and the evidence from the TRO hearings were not referenced in 

Phillips’s Complaint, and this Court should not consider those items in deciding 

Defendants’ motion.

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(1939) (citing Polk Company v. Glover, 305 U.S. 5, 9, (1938)); see also Auto Inspection Servs.,

Inc. v. Flint Auto Auction, Inc., No. 06-15100, 2007 WL 674312, at *3 (E.D. Mich. Feb. 28, 

2007) (Court not bound by factual determinations made while considering preliminary 

injunction); William G. Wilcox, D.O., P.C. Employees’ Defined Ben. Pension Tr. v. United

States, 888 F.2d 1111, 1113–14 (6th Cir. 1989) (collecting cases holding that facts developed 

at the TRO stage are not the “law of the case,” and those factual issues remain to be 

litigated by the parties). Phillips is entitled to have the factual allegations contained in his 

Complaint accepted as true when considering Defendants’ motion, and the Court should 

not consider evidence presented at the TRO hearings.

II. Phillips has standing to assert the claims in the Complaint.

Defendants assert that Phillips’s claims are “abstract,” and that this Court cannot 

provide redress for Phillips’s injuries. (Doc. 26 at 5). Phillips’s Complaint is anything but 

“abstract.” Phillips alleges specifically that he lived at the Third Street Camp because 

there was no space available to him in a homeless shelter and because the Third Street 

Camp “is the safest place he knows to shelter.” (Doc. 16 at ¶20). And, despite Defendants’ 

assertions, Phillips has pleaded that the Third Street Camp did not present a health or 

safety threat and that there was no evidence of illegal drug use. (Id. at ¶27). Despite this, 

Defendants sought to remove Phillips from Third Street Camp “through any lawful 

means including arrest.” (Doc. 26-1 at 15). These allegations present concrete injuries that 

Defendants caused, and Phillips suffered. Further, this Court can provide redress for 

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these injuries in the form of declaratory and injunctive relief to prevent further harm to 

Phillips and other chronically homeless people.

Phillips satisfies the three elements required for standing. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992). First, Phillips has suffered an “injury in fact”—an 

invasion of a legally protected interest which is (a) concrete and particularized; and 

(b) “actual or imminent.” Id. Second, there is a causal connection between the injury and 

the conduct complained of. Id. And third, it is “likely” that the injury will be “redressed 

by a favorable decision.” Id.

a. Phillips alleges sufficient injuries to confer standing.

Phillips suffered an injury sufficient to meet the requirements of Article III when 

Defendants forced Phillips to vacate public property. (Doc. 16 at ¶27). Moreover, 

Defendants continue to threaten Phillips, and other chronically homeless people, with 

criminal prosecution and deprivation of personal property so long as the order and policy 

are in effect. See Order and Policy.

i. The Defendants violated Phillips’s and others’ legally protected 

interests by ejecting them from public property.

Phillips enjoys constitutionally protected rights in his personal belongings, against 

unreasonable search and seizure, to engage in symbolic speech, to travel freely, equal 

protection of the laws, to be free from state created danger, against cruel and unusual 

punishment, and to due process when the state seeks to deprive him of those rights. See

Soldal v. Cook County, 506 U.S. 56, 63-4 (1992) (holding that allegations that deputy sheriffs 

and manager of mobile home park dispossessed owners of their mobile home by 

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physically tearing it from foundation and towing it to another lot supported “seizure” 

claim within meaning of Fourth Amendment); Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984) (assuming, but not deciding, that sleeping in connection 

with a demonstration is symbolic conduct protected by the First Amendment); Johnson v. 

City of Cincinnati, 310 F.3d 483 (6th Cir. 2002) (holding that city ordinance banning 

persons convicted of drug crimes from “drug exclusion zones” violated the Fourth 

Amendment); Rinaldi v. Yeager, 384 U.S. 305 (1966) (holding that New Jersey statute 

imposing on only indigents the duty to reimburse county for cost of transcript in case of 

an unsuccessful appeal out of any institutional wages and not imposing the same 

financial burden on persons who received a suspended sentence constitutes a 

discriminatory classification violative of the Equal Protection Clause); Kallstrom v. City of 

Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998) (holding that a state may not cause or greatly 

increase the risk of harm to its citizens without due process of law through its own 

affirmative acts or the state risks liability under a theory of state-created danger); Estelle 

v. Gamble, 429 U.S. 97, 104 (1976) (holding that “deliberate indifference” to a prisoner’s 

serious medical needs is cruel and unusual punishment). Phillips suffered concrete and

particularized injuries when Defendant violated each of these rights.

Phillips suffered concrete and particularized injuries when the City, Prosecutor 

Deters, and Judge Ruehlman, through the Order and Policy, unlawfully ejected Phillips 

from the Third Street Camp. (Doc. 26 at 6). Defendants’ actions harmed Phillips in one of 

the most personal ways imaginable—requiring him to gather all his personal belongings 

and move under the threat of criminal penalty. (Id. at 4).

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ii. Phillips and others are subject to imminent arrest and deprivation 

of property for any violation of the overbroad Order.

Defendants also incorrectly allege that Phillips lacks standing to seek injunctive 

relief because the Order is enforceable only when space is available in shelters. (Id. at 5). 

This assertion is meritless. Phillips alleges that no space was available to him and that he 

was “forced to live outside.” (Doc. 16 at ¶20). Phillips further stated in an affidavit that 

he was not able to return to the shelter house. (Doc. 17-1). In addition, Phillips alleges that 

he lived at the Third Street Camp because “it is the safest place he knows to shelter.” 

(Doc. 16 at ¶ 20). Thus, Philips alleges that the Order has gone into effect despite his 

having no adequate shelter available to him, thereby criminalizing his homelessness. 

Furthermore, the injuries suffered by Phillips are ongoing. (Id. at ¶31). Should 

Phillips or any other chronically homeless people return to or reconstitute one of the 

encampments, they face imminent criminal sanction under the Order and Policy. (Doc. 

26-1 at 11-17; Doc. 16-1). Thus, not only has Phillips suffered concrete and particularized 

injuries in the past, he continues to be subject to Defendants’ Order and Policy, which

chills and criminalizes protected activities.

b. Phillips’s injuries are a direct result of the challenged orders.

Defendants caused each and every injury suffered by Phillips and other 

chronically homeless people. All Defendants played roles in the issuance of the Order, 

the enforcement of the Policy, and the removal of putative class members from the Fort 

Washington Camp and the Third Street Camp. (Doc. 16. at ¶¶23-29). For example, 

Prosecutor Deters initiated an action in the Hamilton County Court of Common Pleas, 

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contending that the encampments had “a general reputation for felony drug use.” (Id. at 

¶28). The City issued and enforced the Policy which criminalizes homelessness. (Id. at 

¶1). The City enforced the Policy and issued copies of the Order in an effort to remove 

the homeless from their camps. (Id. at ¶25). Thus, Defendants are responsible for causing 

the injuries complained of in this lawsuit.

c. This Court can provide relief for Phillips’s past and future injuries. 

This Court can provide redress for Phillips and other chronically homeless people

in the form of declaratory and injunctive relief. Specifically, Phillips has requested relief 

in three distinct ways. (Doc. 16 at ¶21). First, Phillips has requested that the Court declare 

that the Policy violates the rights of citizens under the Privileges and Immunities Clause, 

as well as the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. 

Constitution. (Id.). Declaring the Policy unconstitutional would prevent Defendants from 

continuing to use the Policy to harass the homeless and violate their constitutional rights. 

Second, Phillips has requested that the Court permanently enjoin defendants from 

removing citizens from public property pursuant to the Order and Policy. (Id.) A 

permanent injunction would provide Phillips with redress by preventing further injuries, 

and would also prevent Defendants from continuing to use the Policy as means to harass 

and remove the homeless from public property. Finally, this Court could vacate Judge 

Ruehlman’s Order. Judge Ruehlman ordered that the homeless encampments be cleared. 

(Doc. 16 at ¶29). Vacating the Order would afford redress by permitting Phillips and 

others to return to the Third Street Camp and other encampments.

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d. The challenged Orders and Policy are still in effect, and Phillips has 

standing for a pre-enforcement challenge of those policies. 

Phillips also has standing for a pre-enforcement challenge of the Orders and Policy 

that are still in effect. Indeed, “in a pre-enforcement review case under the First 

Amendment, courts do not closely scrutinize the plaintiff’s complaint for standing when 

the plaintiff claims an interest in engaging in protected speech that implicates, if not 

violates, each provision of the law at issue.” Platt v. Board of Comm’rs on Grievances and 

Discipline of Ohio Supreme Court, 769 F.3d 447, 451 (6th Cir. 2014) (internal quotations 

omitted). See also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that 

petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a 

statute that he claims deters the exercise of his constitutional rights.”) 

In order to have standing for a pre-enforcement challenge, a plaintiff must allege 

(1) “an intention to engage in a course of conduct implicating the Constitution”; and that 

(2) “the threat of enforcement of the challenged law” against them is “credible.” Platt, 769 

F.3d at 451-52 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 

(1979)). First, Phillips alleges that he wants to remain at the Third Street Camp. (Doc. 17; 

Doc. 16 at ¶20). Second, the threat of enforcement for doing so is credible because Judge 

Ruehlman’s Order and the Policy remain in effect. Phillips is under an immediate, 

credible threat of criminal or civil penalties should he engage in protected activity which 

violates the Order or Policy. 

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IV. Phillips’s claims are not moot.

Defendants incorrectly argue that because the encampment at issue no longer 

exists, Phillips’s requests for injunctions are moot. Mootness occurs “when the issues 

presented are no longer ‘live’ or the parties lack a legally cognizable interest in the 

outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). A dispute remains live when a 

litigant can point to “governmental action or policy that has adversely affected and 

continues to affect a present interest,” Weinstein v. Bradford, 423 U.S. 147, 148 (1975);

Cleveland Nat. Air Show, Inc. v. U.S. Dept. of Transp., 430 F.3d 757, 761 (6th Cir. 2005). 

a. The challenged Order and Policy are still in effect.

The controversy is still live because the Order and Policy remain in effect, and 

cover constitutionally protected behavior. Any time someone sets up a tent anywhere in 

Hamilton County, they are at risk of arrest by the police. (Doc. 26-1 at 16). Phillips has 

not had permanent indoor shelter in ten years, and “[h]e has sheltered at upwards of 100 

different outside locations, but he has had to abandon those locations because police 

officers forced him to move or be arrested.” (Doc. 16 at ¶20). Defendants claim that the 

“encampment at issue no longer exists” (Doc. 26 at 6), but Defendants’ enforcement of 

the Policy and Order did not end homelessness. Defendants’ continuing threat of 

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enforcement of the Policy and Order put Phillips and other chronically homeless people 

in legal jeopardy due to their necessary and inevitable encampment.

b. An order requiring homeless people to vacate public property or face 

criminal penalties is not analogous to release from prison. 

Defendants contend that Phillips’s claims for injunctive relief are moot by 

comparing his claims to prisoners whose claims for injunctive relief were moot once they 

were transferred to a different facility. (Doc. 26 at 6). In each of the cases Defendants cite, 

however, the actual controversy ceased because the activity the plaintiffs sought to enjoin 

had ended. That contrasts with this case, where the Policy and Order remain in effect and 

currently threaten Phillips and any homeless person that violates them with arrest. 

Additionally, there is significant difference between an inmate’s release or transfer from 

prison, and a homeless person’s forcible removal by the police under threat of arrest from 

the one place they felt safe and at home. 

c. Phillips’s claims are not moot because Defendants’ enforcement of the 

Orders and Policy is capable of repetition and evading judicial review.

A dispute remains live for purposes of justiciability when it is “capable of 

repetition, yet evading review.” Weinstein, 423 U.S. 147 at 149. See also FEC v. Wisconsin 

Right to Life, 551 U.S. 449, 462 (2007) (First Amendment challenge to broadcast restrictions

not moot despite the passing of an election cycle). The “capable of repetition, yet evading 

review” exception applies when “(1) the challenged action was in its duration too short 

to be fully litigated prior to its cessation or expiration; and (2) there was a reasonable 

expectation that the same complaining party would be subjected to the same action 

again.” Cleveland Nat. Air Show, Inc., 430 F.3d 757 at 761. 

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The underlying dispute is capable of repetition because at any time Phillips or the 

other members of the putative class could be arrested under the Order or Policy as long 

as they are living on the street (Doc. 26-1 at 16). The City’s inability to provide shelter to 

all homeless makes criminal prosecution a very real possibility. (Doc. 16 at ¶¶15, 20). 

Every time a tent or some other form of shelter goes up, its inhabitant is subject to arrest. 

Dismissing Phillips’s claims for injunctive relief as moot would allow Defendants’ 

continuing unconstitutional conduct to evade review. This is especially true because the 

challenged action is too short in duration to be fully litigated before the camps are taken 

down: The Order states that the police officers must provide a copy of the order to anyone 

violating it, and if they do not immediately comply with the order, they can be arrested. 

(Doc. 26-1 at 16). If Phillips and the other homeless people had to file a lawsuit every time 

they were ordered to disperse under the Order, the Courts could never determine the 

constitutionality of Defendants’ conduct. For these reasons, Phillips’s claims are not 

moot. 

V. Phillips pleads sufficient facts that Defendants violated his First Amendment 

rights by ordering him to leave public property.

Defendants ask this Court to dismiss Phillips’s prayer to enjoin “the enforcement 

of Judge Ruehlman’s permanent injunction Order” based on their assertion that the 

Supreme Court in Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) ruled 

that there is no right to camp. (Doc. 26 at 7). Not only has Phillips pleaded sufficient 

allegations which, accepted as true for purposes of Defendants’ Motion to Dismiss, state 

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a plausible claim to relief, Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), but the 

Clark Court never decided that there is no constitutional right to camp.

a. Phillips alleges that he was engaged in symbolic speech entitled to First 

Amendment protection and that Defendants’ actions were directly related to 

suppressing that protected expression.

In his Complaint, Phillips states that he and the “putative class members are 

engaged in symbolic political speech calling attention to the City’s affordable housing 

crisis.” (Doc. 16 at ¶49). Symbolic speech is protected where there is “[a]n intent to convey 

a particularized message . . . and in the surrounding circumstances the likelihood [is] 

great that the message [will] be understood by those who vie[w] it.” Spence, 418 U.S. at

410-11. Phillips intended to convey his message through the encampment on Third Street 

because it was “open and obvious to other members of the public.” (Doc. 16 at ¶ 49). 

Because of the encampment’s prominent placement, Phillips’s message protesting the 

City’s affordable housing crisis was likely to be conveyed to, and understood by, the 

general public to “mak[e] the City look bad.” (Id. at ¶¶51-52). Phillips’s message was not 

only likely to be conveyed, but it was actually received, as the City characterized Phillips

and others as “activists” before removing them based on the content of their symbolic 

speech. (Id. at ¶¶ 24, 51). Phillips’s Complaint contains sufficient factual allegations to 

state a claim that Defendants impermissibly targeted the content of his expression in 

violation of his First Amendment rights. 

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b. Judge Ruehlman’s Order is unconstitutionally overbroad.

Phillips has sufficiently pleaded that the Order is overbroad and violates the First 

Amendment’s protections on symbolic speech. In United States v. O’Brien, 391 U.S. 367 

(1968), the Court laid out how a restriction on symbolic speech could be constitutional: 

a government regulation is sufficiently justified if it is within the 

constitutional power of the Government; if it furthers an important or 

substantial governmental interest; if the governmental interest is unrelated 

to the suppression of free expression; and if the incidental restriction on 

alleged First Amendment freedoms is no greater than is essential to the 

furtherance of that interest. 

Id. at 377. The Order does not further a government interest, the asserted government 

interest is directly related to the suppression of constitutionally-protected symbolic 

speech, and the restrictions imposed by the Order go well beyond what is essential to the 

furtherance of any government interest.

Courts do not assume that a nexus exists between a restriction on speech and the 

asserted state interest. Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) 

(quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n. 22 (1984)); 

Turner Broad. Sys. v. FCC, 512 U.S. 622, 664 (1994) (plurality). Judge Ruehlman cites “the 

health and safety of the community” as the government interest at issue. (Doc. 26-1 at 15). 

The Order does not connect this interest to any conduct in the encampments. The Order 

merely notes that “[i]n the last few months felony drug offenses involving the use of 

heroin have occurred . . .” (Id. at 13) (emphasis added). Nothing in the Order connects its

restrictions to overdoses, public sex acts, or anything related to community health and 

safety at all. The Order targets the encampments themselves, not any activities that 

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Defendants claim occurred therein. “[T]he health and safety of the community,” if it is an 

important or substantial government interest at all, see Preferred Communications, 476 U.S. 

at 496, is not implicated here. (Doc. 26-1 at 14-15). 

Furthermore, an outright ban on camping equipment such as tents in public areas 

burdens far more speech than would be necessary to further the government’s asserted 

interest—that is, it is far from narrowly-tailored and is overbroad. To be narrowlytailored, “[a] restriction must not burden substantially more speech than necessary to 

achieve the government’s asserted interests.” Lexington H-L Servs. v. Lexington-Fayatte 

Urban Cty. Gov’t, 879 F.3d 224, 229 (6th Cir. 2018) (quoting McCullen v. Coakley, 134 S. Ct. 

2518, 2535-37 (2014)) (internal quotation marks and punctuation omitted). In McCullen, 

the Court held that a statute effectively criminalizing the act of standing on a public 

sidewalk within 35 feet of an abortion facility was not narrowly-tailored and was 

overbroad and, thus, unconstitutional. McCullen, 134 S. Ct. at 2537.

The permanent injunction here subjects “any person found erecting tents or other 

shelter on . . . public grounds” to arrest, (Doc. 26-1 at 16) and in doing so goes far beyond 

what is necessary to achieve the government’s interests. An individual peacefully 

debating public issues, or distributing leaflets, or creating art on public property who 

erected a tent for relief from the sun is subject to arrest under the permanent injunction. 

(Id. at 15). The permanent injunction here is strikingly similar to—if not more offensive 

than—the “truly exceptional” statute at issue in McCullen. See McCullen, 134 S. Ct. at 2526. 

The permanent injunction is not narrowly-tailored and, as such, Defendants’ motion to 

dismiss fails on this front.

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Finally, Defendants’ contention “that there is no right to sleep or camp in a public 

space” (Doc. 26 at 6) is both incorrect and inapposite. To support this conclusion, 

Defendants cite Clark v. Community for Creative Non-Violence. In that case, however, the 

Court stated “that overnight sleeping in connection with the demonstration is expressive 

conduct protected to some extent by the First Amendment. We assume for present 

purposes, but do not decide, that such is the case.” Clark, 468 U.S. at 293. Moreover, 

numerous federal courts have found that erecting tents or other shelters as expressive 

conduct is protected expression. See Watters v. Otter, 955 F. Supp.2d 1178, 1185 (D. Idaho 

2013) (“Occupy Boise’s tent city and overnight camping constitute expressive conduct 

protected under the First Amendment”.); Occupy Fort Myers v. City of Fort Meyers, 882 F. 

Supp. 2d 1320, 1328 (M.D. Fla. 2011) ( “[T]he tenting and sleeping in the park as described 

by plaintiffs’ council is symbolic conduct which is protected by the First Amendment”.); 

Metropolitan Council, Inc. v. Safir, 99 F. Supp. 2d 438, 439 (S.D.N.Y. 2000) “[T]he First 

Amendment of the United States Constitution does not allow the City to prevent an 

orderly political protest from using public sleeping as a means of symbolic expression”.).

Even if there were no right to camp, it does not matter; Phillips engaged in 

symbolic speech to draw attention to Cincinnati’s affordable housing crisis. (Doc. 16 at 

¶49). Phillips’s Complaint alleges that Defendants violated his right to symbolic speech 

protected by the First Amendment, not that Defendants violated his right to camp.

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VI. Phillips alleges that the Hamilton County Prosecutor, acting in an official 

capacity, violated Phillips’s constitutional rights.

a. Prosecutor Deters does not enjoy absolute immunity for actions taken in his 

official capacity.

Defendants assert that Prosecutor Joseph T. Deters is protected by absolute 

immunity and therefore must be dismissed as a defendant. (Doc. 26 at 9-10) (citing Imbler 

v. Pachtman, 424 U.S. 409, 431 (1976)). Such immunity may apply to claims against 

Prosecutor Deters in his individual capacity. Phillips’s Complaint, however, asserts claims 

against Prosecutor Deters in his official capacity, alleging specifically that, as a County 

policymaker, Prosecutor Deters sought an order against Phillips and other class 

members. (Doc. 16 at ¶¶ 97-101).

Phillips alleges that Prosecutor Deters acted “under color of law when citing, 

arresting, or imprisoning its homeless citizens pursuant to The Policy and or Ohio law.” 

(Id. at ¶ 98). Further, the Complaint states, Deters “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.” (Id. at ¶ 99). All such conduct was taken 

in Prosecutor Deters’s official capacity. Accordingly, Phillips’s claims against Deters are 

not barred under absolute immunity.

b. Prosecutor Deters acted as a policymaker in creating a policy which threatens 

to cite, arrest, and imprison Phillips in violation of his constitutional rights, 

for which Hamilton County may be held liable.

“State law determines who has the final policymaking authority.” Stone v. 

Holzberger, 807 F. Supp. 1325, 1335 (S.D. Ohio 1992) (citing Jett v. Dallas Independent School 

Case: 1:18-cv-00541-TSB Doc #: 37 Filed: 11/27/18 Page: 18 of 21 PAGEID #: 885
19

District, 491 U.S. 701, 737 (1989)). “Under Ohio law,2 the Sheriff and the Prosecutor are 

the officials who make policy for [the County] with regard to the operation of their offices 

and discharge of their duties.” Id. (discussing Pembaur v. City of Cincinnati, 475 U.S. 469 

(1986)). As the County Prosecutor, Deters thus makes policy for the County.

Phillips’s claims regarding and against Prosecutor Deters in his official capacity 

establish the County’s liability. Courts regard “an official capacity suit as a suit against 

the municipality itself.” Jorg v. City of Cincinnati, 145 F. App’x 143, 146 (6th Cir. 2005) 

(discussing Leach v. Shelby County, 891 F.2d 1241, 1245 (6th Cir. 1989)). A local government 

may be sued “when execution of a government’s policy or custom . . . inflicts the injury 

that the government as an entity is responsible for under § 1983.” Monell, 436 U.S. at 694. 

Here, Hamilton County is liable for Prosecutor Deters’s actions taken in his official 

capacity.

Prosecutor Deters has final policymaking authority for the County, rendering the 

County liable for his unconstitutional actions causing Phillips’s injuries. As stated in 

Phillips’s Complaint, “[the Policy] allows police officers to search and or seize homeless 

citizens based solely on their presence in public space or on public property.” (Doc. 16 at 

¶57). Deters also initiated the action that resulted in the challenged Order, and signed the 

Order binding Hamilton County to the requirements of the Order. (Id. at ¶28; Doc. 26-1 

at 17). In sum, Hamilton County may be held liable for Prosecutor Deters’s action taken 

 

2 The Sixth Circuit Court of Appeals “concluded, based upon its examination of Ohio law, 

that both the County Sheriff and the County Prosecutor could establish county policy 

under appropriate circumstances, a conclusion that [the Supreme Court did not 

question].” Pembaur, 475 U.S. at 484.

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20

as policymaker that caused Phillips and other chronically homeless people their 

constitutional injuries.

CONCLUSION

For the foregoing reasons, Plaintiff Joseph Phillips respectfully requests that this 

Court deny the Motion to Dismiss filed by Defendants Hamilton County, the Hamilton 

County Court of Common Pleas, and Prosecuting Attorney Joseph T. Deters.

Respectfully submitted,

/s/ Andrew C. Geronimo

Andrew C. Geronimo (OH# 86630)

Attorney at Law

/s/ Avidan Y. Cover

Avidan Y. Cover (OH# 87534)

Attorney at Law (Admission Pending)

/s/ Jaclyn Cole

Jaclyn Cole*

/s/ Taylor Frank

Taylor Frank*

/s/ Samuel Ottinger

Samuel Ottinger*

/s/ Samuel Sheffield

Samuel Sheffield*

*Certified Legal Interns

(Admission pursuant to S.D. Ohio Civ. R. 

83.6 pending)

CASE WESTERN RESERVE UNIVERSITY 

SCHOOL OF LAW

MILTON A. KRAMER LAW CLINIC CENTER

11075 East Boulevard

Cleveland, Ohio 44106

(216)-368-2766

/s/ Bennett P. Allen

Bennett P. Allen (OH# 96031) 

COOK & LOGOTHETIS, LLC 

30 Garfield Place, Suite 540

Cincinnati, OH 45202

P: (513) 287-6992

F: (513) 721-1178 

ballen@econjustice.com

Trial Attorney for Plaintiff

Case: 1:18-cv-00541-TSB Doc #: 37 Filed: 11/27/18 Page: 20 of 21 PAGEID #: 887
21

PROOF OF SERVICE

The undersigned certifies that on November 27, 2018, I electronically filed the 

foregoing with the Clerk of Court using the CM/ECF system, which will send notification 

of the filing to all counsel of record. 

/s/ Andrew C. Geronimo

Andrew C. Geronimo (OH# 86630) 

Case Western Reserve University 

School of Law

Milton A. Kramer Law Clinic Center

11075 East Boulevard

Cleveland, OH 44106-7148

P: (216) 368-2766

F: (216) 368-5137

acg33@case.edu

One of the Attorneys for Plaintiff

Case: 1:18-cv-00541-TSB Doc #: 37 Filed: 11/27/18 Page: 21 of 21 PAGEID #: 888