Ohio City Prevails in Discrimination Lawsuit Over Handling of Outdoor Cooking Incident

The City of Lyndhurst, Ohio has prevailed in a lawsuit brought by an immigrant couple who were ordered by police and firefighters to stop cooking outside because the smoke was bothering their neighbors. Emad Alabasi and Yana Alabasi filed suit last October in US District Court for the Northern District of Ohio claiming national origin discrimination and various civil rights violations.

In a decision handed down today, Judge Sara Lioi granted the city’s motion to dismiss the suit and ordered the case closed. As explained by Judge Lioi:

  • Plaintiffs, Emad Alabasi, an Iraqi immigrant, and Yana Alabasi, a Russian immigrant are residents of Lyndhurst.
  • On or about January 4, 2018, Plaintiffs and their family were cooking on an outdoor grill at their home.
  • While Plaintiffs’ were cooking outside, a John Doe Police Officer employed by the Defendant City of Lyndhurst and Defendant City of Lyndhurst Police Department arrived at Plaintiffs’ home regarding a neighbor’s complaint about Plaintiffs’ cooking outdoors.
  • John Doe Police Officer observed the Plaintiffs cooking outdoors, made a brief inquiry with Plaintiffs, then left Plaintiffs’ residence.
  • Shortly thereafter, numerous John Doe Police Officers employed by the Defendant City of Lyndhurst and Defendant City of Lyndhurst Police Department arrived at Plaintiffs’ residence, along with numerous John Doe Firefighters employed by the Defendant City of Lyndhurst and Defendant City of Lyndhurst Fire Department.
  • John Doe Police Officer at the scene told Plaintiffs that their food looked to be finished cooking.
  • One or more John Doe Firefighters then extinguished Plaintiffs’ outdoor grill.
  • Plaintiffs’ audio and video-recorded the incident.
  • Plaintiffs were threatened by one or more John Doe Police Officers that, if they cooked outdoors again, they would be charged with a violation of City of Lyndhurst Municipal Code Section 642.12, Criminal Trespass.
  • These factual allegations serve as the basis for two federal claims: (1) a claim under 42 U.S.C. § 1983; and (2) a national origin discrimination claim under Monell.
  • Here, even after amending the pleadings outside the limitations period, plaintiffs still have not identified the John Doe defendants by name.
  • Their failure to ascertain their names within the limitations period means that they failed to initiate a § 1983 action against any qualifying individual within the limitations period.
  • Plaintiffs’ § 1983 action, therefore, is time-barred and is dismissed.
  • Because plaintiffs’ Monell claim cannot survive without the underlying § 1983 claim, it, too, is subject to dismissal.
  • With respect to plaintiffs’ federal claims, defendants argue that the amended complaint fails to identify which constitutional rights defendants are alleged to have infringed. Further, defendants argue that the factual allegations-relating to the extinguishment of an outdoor grill and the threat of future criminal charges-fail to plausibly support either of their federal claims.
  • To successfully assert a Monell claim, plaintiffs must adequately allege facts sufficient to establish: (1) “a clear and persistent” pattern of unconstitutional conduct by municipal employees; (2) the municipality’s “notice or constructive notice” of the unconstitutional conduct; (3) the municipality’s “tacit approval of the unconstitutional conduct, such that [its] deliberate indifference in [its] failure to act can be said to amount to an official policy of inaction”; and (4) that the policy of inaction was the “moving force” of the constitutional deprivation, such that the plaintiff’s constitutional injury was directly caused by the conduct of the municipality rather than simply by the conduct of the municipal employee.
  • Plaintiffs’ allegation of a single instance of misconduct by a non-policy maker, even if it rose to the level of a constitutional violation, which it did not, would have been insufficient to support a Monell claim.
  • The remaining cause of action purports to raise a claim for intentional infliction of emotional distress under Ohio law.
  • Defendants maintain that this claim must be dismissed because defendants are entitled to tort immunity under Ohio Rev. Code § 2744 and because it fails to state a claim upon which relief can be granted.
  • Because the Court finds that the allegations fail to state a cause of action, it need not consider whether defendants would be entitled to immunity under Ohio law. [Editing brackets removed to make reading easier].

Here is a copy of the decision.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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