Cleveland Police Patrolmen's Association et al v. City of Cleveland et al

Filing 4

Opinion and Order. Plaintiffs' Motion for Temporary Restraining Order/Preliminary Injunction (Related doc # 3 ) is denied. Judge Christopher A. Boyko on 4/17/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CLEVELAND POLICE
PATROLMEN’S ASSOCIATION, ET
AL.,
Plaintiffs,
vs.
CITY OF CLEVELAND, ET AL.,
Defendants.

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CASE NO. 1:18CV863

JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Plaintiffs Cleveland Police Patrolmen’s Association
and Jeffrey Follmer’s Motion for Temporary Restraining Order/Preliminary Injunction. (ECF
# 3). For the following reasons, the Court denies Plaintiffs’ Motion.
According to Plaintiffs’ Verified Complaint, Defendants City of Cleveland, Michael
McGrath and Calvin Williams are pursuing disciplinary actions against members of the
Cleveland Police Patrolmen’s Association (“CPPA”) for conduct that violates the members’
constitutional rights to privacy and free speech. Plaintiffs seek a declaration from the Court
prohibiting Defendants from pursuing such discipline and further requests any and all
documentation concerning the alleged disciplinary charges be removed from the members’
personnel files. Plaintiffs contend that City of Cleveland Codified Ordinance § 171.49
ensures the right to free expression of all officers and employees of the City of Cleveland
with the exception of speech that is disruptive of the work of the officer or employee or
constitutes insubordination. Plaintiffs contend, with no factual support, the exceptions do not

apply to the speech at issue. Furthermore, the speech they seek to protect occurred on the
officers’ private cell phones, outside the workplace. As such, the officers had a reasonable
expectation of privacy and the unlawful intrusion into the officers’ private cell phones
violated their constitutional rights.
Plaintiffs argue that by conducting a hearing, Plaintiffs could be subject to discipline
and/or public disclosure of the charges against them which would cause them irreparable
personal and professional harm. Furthermore, Defendants’ pursuit of disciplinary charges
violates the City of Cleveland Ordinances as well as the officers’ constitutional rights.
Plaintiffs’ also seek injunctive relief to include enjoining Defendants from administering any
discipline against the officers.
Standard of Review
Injunctive relief is an extraordinary remedy and is issued cautiously and sparingly.
See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-313 (1982).
Four factors must be considered when deciding whether to grant an injunction: (1)
whether the movant has a strong likelihood of success on the merits; (2) whether there is a
threat of irreparable harm to the movant; (3) whether others will suffer substantial harm as a
result of the injunction, should it issue; and (4) whether the public interest will be served by
the injunction. See Rock & Roll Hall of Fame and Museum, Inc. v. Gentile Prods., 134 F. 3d
749, 753 (6th Cir. 1998); Vittitow v. Upper Arlington, 43 F. 3d 1100, 1109 (6th Cir. 1995)
(the four factors are “not prerequisites to be met, but factors to be balanced.”); D.B. v. Lafon,
2007 U.S. App. LEXIS 3886 (6th Cir. 2007). While no single factor will be determinative as
to the appropriateness of the equitable relief sought, (In re DeLorean Motor Co., 755 F. 2d

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1223, 1229 (6th Cir. 1985)), “ a finding that there is simply no likelihood of success on the
merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F. 3d 620, 625 (6th Cir.
2000).
The moving party must establish its case by clear and convincing evidence. See Deck
v. City of Toledo, 29 F. Supp. 2d 431, 433 (N.D. Ohio 1998), citing Garlock, Inc., v. United
Seal, Inc., 404 F. 2d 256, 257 (6th Cir. 1968).
The Court may issue a temporary restraining order only if the movant gives security in
an amount that the Court considers proper to pay the costs and damages sustained by any
party found to have been wrongfully enjoined or restrained. (Fed. R. Civ. P. 65c). The Court
notes that Plaintiffs have not offered to post any appropriate security.
The Court finds that Plaintiffs cannot show by clear and convincing evidence a strong
likelihood of success on the merits because they have not apprised the Court of sufficient
facts to make such a showing. Whether an employee engaged in constitutionally protected
speech is a question of law. Farhat v. Jopke, 370 F.3d 580, 593 (6th Cir. 2004). The court
must decide first whether the employee spoke as a “citizen on a matter of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If so, the court then must “balance the
employee’s free speech interest against the employer’s justifications for restricting the
employee’s speech.” Stinebaugh v. City of Wapakoneta, 630 F.App’x 522, 526 (6th Cir.
2015); Garcetti, id. The First Amendment will protect the public employee only if he was
speaking as a citizen and not in his official capacity as a government worker. Garcetti. The
Supreme Court has held that public employees should be able to speak out freely on questions
of public concern without fear of retaliation. Pickering v. Bd. of Ed. of Twp. High Sch. Dist.,

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391 U.S. 563, 571-72 (1968). However, the public employer is not required to “tolerate action
which he reasonably believed would disrupt the office, undermine his authority, and destroy
close working relationships.” Connick v. Myers, 461 U.S.138, 154 (1983).
The only facts the Court has before it is that the speech at issue was made on
Plaintiffs’ personal cell phones. The Court considers “the impetus for h[is] speech, the setting
of h[is] speech, the speech’s audience, and its general subject matter.” Weisbarth v. Geauga
Park Dist., 499 F.3d 538, 546 (6th Cir. 2007). The Court has not been provided with the
content of the speech at issue and, as such, cannot make any determination whether it is
protected or not. The Court has no facts as to how the texts were obtained and thus, cannot
determine whether any invasion of privacy occurred. Therefore, Plaintiffs cannot meet their
burden to show by clear and convincing evidence that they have a strong likelihood of success
on the merits. In light of Gonzales, the Court finds this failure to demonstrate a likelihood of
success on the merits is fatal to Plaintiffs’ Motion.
Therefore, for the foregoing reasons, the Court denies Plaintiffs’ Motion.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: April 17, 2018

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