Krlich et al v. The City of Hubbard, Ohio et al

Filing 18

Order Adopting Report and Recommendation: The Court OVERRULES Plaintiffs' Objections (ECF No. 13 ), ADOPTS the Report and Recommendation (ECF No. 11 ), and DENIES Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 6 ). Judge J. Philip Calabrese on 1/7/2021. (Y,A)

Case: 4:20-cv-01190-JPC Doc #: 18 Filed: 01/07/21 1 of 14. PageID #: 406

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LUCINDA KRLICH, et al.,
Plaintiffs,
v.
CITY OF HUBBARD, et al.,
Defendants.

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Case No. 4:20-cv-1190
Judge J. Philip Calabrese
Magistrate Judge Kathleen B. Burke

OPINION AND ORDER
Plaintiffs Lucinda and Rick Krlich object to the Magistrate Judge’s report and
recommendation, which recommends that the Court deny Plaintiffs’ motion for a
temporary restraining order and preliminary injunction against Defendants the City
of Hubbard, Mark Villano (the City’s Law Director), and Sgt. William Fisher (an
officer in the City’s police department) because Plaintiffs fail to demonstrate either a
substantial likelihood of prevailing on the merits of their underlying suit or
irreparable harm.

For the reasons set forth below, the Court agrees with the

Magistrate Judge and, accordingly, OVERRULES the objections (ECF No. 13),
ADOPTS the report and recommendation (ECF No. 11), and DENIES Plaintiffs’
motion for a temporary restraining order and preliminary injunction (ECF No. 6).
STATEMENT OF FACTS
Plaintiffs’ claims relate to an ongoing feud between two families, the Krliches
and the Clementes, in Hubbard, Ohio, a small city outside of Youngstown on the
Pennsylvania border. (See generally ECF No. 1, PageID #5–6.) In 2007, after Mary

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Clemente passed away, Plaintiffs bid on real estate she owned adjacent to theirs. (Id.,
¶ 16, PageID #5.) John Clemente, Jr., Hubbard’s former fire chief, told Plaintiffs to
withdraw the bid or become “bitter enemies for life,” because the house had been in
the Clemente family since 1922. (Id., ¶ 17, PageID #5.) Plaintiffs did not withdraw
their bid, but did not acquire the property either. (Id., ¶ 18, PageID #6.)
Plaintiffs allege that their refusal to withdraw their bid on the Clemente
property gave rise to a campaign by members of the Clemente family and their friends
to “harass, intimidate, and terrorize” the Krliches. (Id., ¶ 19, PageID #6.) This
campaign includes “speeding down [the Krliches’] street, honking their horns and
revving their engines” and “peeling out” when they drove by the Krliches’ house,
“driving their cars onto” and “discarding trash on” the Krliches’ lawn, and “swearing”
at them—all of which, Plaintiffs claim, continues to this day. (Id.) Plaintiffs allege
thousands of incidents of harassment by members of the Hubbard police and fire
departments and their families, as well as by relatives of two local judges. (Id.,
¶¶ 21–22, PageID #6–7.)
In efforts to bring this unwanted harassment to an end, Plaintiffs called 911,
reported incidents to the Hubbard police, filed lawsuits against their harassers, and
occasionally obtained restraining orders. (Id., ¶ 20, PageID #6.) Since February 1,
2019, Plaintiffs claim Defendants have refused to take any action to investigate any
report they make (id., ¶¶ 22 & 24, PageID #7; see also ECF No. 13, ¶ 1, PageID #376),
even though those reports include violations of local ordinances (ECF No. 1, ¶ 30,
PageID #8).

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STATEMENT OF THE CASE
A.

Krlich I

Previously, the Krliches sued the City of Hubbard in federal court, raising
claims under 42 U.S.C. § 1983 based on similar factual allegations. See Krlich v.
Taafe, No. 4:17-cv-379 (“Krlich I”). In that case, the Court denied injunctive relief
and granted Defendants’ motion for judgment on the pleadings. See Krlich v. Taafe,
No. 4:17CV0379, 2018 WL 4510094, at *6 (N.D. Ohio Sept. 19, 2018); Krlich v. Taafe,
No. 4:17CV0379, 2018 WL 4537196, at *8 (N.D. Ohio Sept. 19, 2018). In dismissing
that lawsuit, the Court determined that Plaintiffs “simply failed to allege any viable
claim, including a class-of-one equal protection claim.” 2018 WL 4537196, at *8.
B.

Allegations in This Action

In this action, Plaintiffs pursue a claim under Section 1983, alleging that
Defendants violated the Equal Protection Clause of the Fourteenth Amendment.
(ECF No. 1, PageID #9–10.) Among other things, Plaintiffs make a “class of one”
argument that Defendants selectively deny them protective services. (Id., ¶ 38,
PageID #10; ECF No. 6, PageID #280.) They argue as well that Defendants enforce
a “special written policy” against them (ECF No. 13, PageID #376), although the
complaint also alleges no such policy exists (ECF No. 1, ¶ 39, PageID #10).
In addition to pursuing their claim on the merits, Plaintiffs seek a temporary
restraining order or a preliminary injunction to enjoin Defendants “from their current
practice of refusing to accept and investigate Plaintiffs’ complaints, . . . and refusing
to enforce Hubbard’s ordinances against residents who violate them.” (ECF No. 6,

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PageID #275.) At bottom, the Krliches seek to compel Defendants to stop “treating
them as a class of one,” to investigate “at least some of” their complaints, enforce
Hubbard ordinances, and prosecute violations. (ECF No. 6, PageID #280–81.)
C.

The Report and Recommendation

On referral of Plaintiffs’ motion for injunctive relief for a report and
recommendation, the Magistrate Judge promptly held a telephone conference, which
Plaintiffs’ counsel did not attend. (ECF No. 8, PageID #303.) In the subsequent
report and recommendation that the Court deny injunctive relief, the Magistrate
Judge primarily pointed to the fact that the Krliches failed “to present any argument
that they have a likelihood of success on the merits.” (ECF No. 11, PageID #351.)
Further, the Magistrate Judge determined the Krliches failed to provide any
“evidentiary support for their claims of irreparable harm.”

(ECF No. 11,

PageID #352.) Additionally, the Magistrate Judge noted that the Krliches offered no
argument why previous federal lawsuit would not likely bar, at least in part,
Plaintiffs’ claims in this action. (ECF No. 11, PageID #351–52.)
Plaintiffs objected to the report and recommendation. (ECF No. 13.) First,
Plaintiffs object that the report and recommendation “mischaracterizes” the
complaint by failing to appreciate that the Krliches argue “that Defendants treat
them as a class of one.” (ECF No. 13, PageID #376.) Second, Plaintiffs object that
their 2017 federal lawsuit “did not address, and could not have addressed,” the
current facts because the conduct of which they complain increased since then. (Id.,
PageID #376–77.) Finally, they object that the “R&R makes a gross generalization”

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regarding the nature of Krlich I compared to this matter. (Id., PageID #377.) In this
respect, Plaintiffs take issue with the report and recommendation because it focuses
on Defendants’ discretionary actions regarding municipal ordinances and ignores
Plaintiffs’ other claims and evidence of increased harassment since Krlich I. (Id.)
Plaintiffs request that the Court overrule the report and recommendation and grant
their request for an injunction.
LEGAL STANDARD
A district court judge may designate a magistrate judge to “hear or determine
any pretrial matter pending before the court,” with several exceptions, including
motions for injunctive relief. 28 U.S.C. § 636(b)(1)(A). But a district judge may refer
a motion for injunctive relief to a magistrate judge for “proposed findings of fact and
recommendations for the disposition, by a judge of the court, of any motion excepted”
by the preceding subsection. Id. § 636(b)(1)(B).
After the report and recommendation is filed, if a party objects within the
allotted time, the district court is required to “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed R. Civ. P. 72(b). Upon
review, the court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Importantly,
the Court’s job is not to conduct a free-wheeling examination of the entire report and
recommendation, but only to address any specific objections that a party has
advanced to some identified portion of it. Accordingly, it is the Court’s task in this

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matter to review the Magistrate Judge’s report and recommendation de novo, based
on the specific objections the Krliches raise.
ANALYSIS
Plaintiffs’ objections to the report and recommendation generally fall into two
categories: (1) how the Magistrate Judge construed Plaintiffs’ claims; and (2) the
applicability, if any, of Krlich I to the present action. (ECF No. 13, PageID #376–77.)
In the Court’s view, these objections broadly raise the merits of Plaintiffs’ motion for
an injunction in their entirety.
I.

Likelihood of Success on the Merits of Plaintiffs’ Equal Protection
Claim
When a party seeks a preliminary injunction, a district court balances the

following factors: the movant’s likelihood of success on the merits, whether the
movant would suffer irreparable injury without an injunction, whether the injunction
would cause “substantial harm” to others, and whether the public interest is served.
See Wilson v. Williams, 961 F.3d 829, 836 (6th Cir. 2020); see also Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

“And in the case of a potential

constitutional violation, ‘the likelihood of success on the merits often will be the
determinative factor.’” Doe v. University of Cincinnati, 872 F.3d 393, 399 (6th Cir.
2017) (quoting City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430
(6th Cir. 2014) (en banc) (per curiam)). As the movants, the Krliches bear “the burden
of justifying such relief.” Wilson, 961 F.3d at 837 (citing American Civ. Liberties
Union Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 642 (6th Cir. 2015)).

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In the report and recommendation, the Magistrate Judge determined that
Plaintiffs are not entitled to injunctive relief because they cannot demonstrate a
likelihood of success on the merits of their equal protection claim. In that claim,
Plaintiffs assert that “Defendants have violated [the Krliches’] right to equal
protection of the laws” by failing to investigate, issue citations, or take action against
the purported harassment and that “Defendants have failed, refused and continue to
fail and refuse to enforce various city ordinances[,]” resulting in Plaintiffs being
treated “as a class of one.”

(ECF No. 11, PageID #348.)

The report and

recommendation points out that Plaintiffs “fail to present any argument that they
have a likelihood of success on the merits[,]” instead only offering “a conclusory
assertion that Defendants are denying their due process rights.” (Id., PageID #351.)
Plaintiffs object that, in this regard, the report “mischaracterizes Plaintiffs’
Complaint as being based on Defendants” violating their equal protection rights by
failing to investigate their complaints. (ECF No. 13, PageID #376.) Instead, the
Krliches argue Defendants both treat them as a “class of one” and subject them to a
written policy that results in selective non-enforcement of municipal ordinances
warranting injunctive relief. (Id.)
I.A.

Plaintiffs’ “Class-Of-One” Claim

“[T]he Equal Protection Clause gives rise to a cause of action ‘for a class of
one.’” Klimik v. Kent Cnty. Sheriff’s Dep’t, 91 F. App’x 396, 400 (6th Cir. 2004) (citing
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). “To succeed
on this type of claim, a plaintiff must allege either disparate treatment from similarly
situated individuals and that the government actors had no rational basis for the
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difference” or that “the challenged government action was motivated by animus or
ill-will.” Paterek v. Village of Armada, 801 F.3d 630, 650 (6th Cir. 2015) (cleaned up);
see also Olech, 528 U.S. at 564. “Courts ‘generally view’ class-of-one claims with
skepticism given the potential to ‘provide a federal cause of action for review of almost
every executive and administrative decision made by state actors.’”

Shavers v.

Almont Twp., ___ F. App’x ___, No. 20-1291, 2020 WL 6156708, at *4 (6th Cir. Oct.
21, 2020) (cleaned up) (quoting Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th
Cir. 2012)). Prevailing on this theory presents a “heavy burden” for plaintiffs. Loesel,
692 F.3d at 462.
To succeed on this claim, the Krliches must not only identify similarly-situated
individuals to whom they can be compared, but also “‘(1) refute every conceivable
basis that might support the government action, or (2) demonstrate that the
challenged action was motivated by animus or ill-will.’” Kesterson v. Kent State Univ.,
No. 5:16-CV-298, 2017 WL 995222, at *8 (N.D. Ohio Mar. 15, 2017) (quoting Benjamin
v. Brachman, 246 F. App’x 905, 927 (6th Cir. 2007)); see also Krlich I, 2018 WL
4510094, at *3–4 (discussing the class-of-one claim under the Equal Protection
Clause). To be entitled to a preliminary injunction, however, Plaintiffs need not meet
their ultimate burden of proof, but must demonstrate that they are likely to succeed
at meeting it. They have not done so.
At bottom, the record contains no evidence of similarly situated individuals.
But assuming they could identify a similarly situated individual, Plaintiffs are
unlikely able to “refute every conceivable basis” Defendants have for enforcing local

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ordinances the way they have chosen. Supreme Court precedent routinely reiterates
a “deep-rooted nature of law-enforcement discretion, even in the presence of
seemingly mandatory legislative commands[,]” which includes enforcement of city
ordinances. Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005) (discussing
Chicago v. Morales, 527 U.S. 41, 47 (1999)). This precedent cuts against Plaintiffs’
likelihood of success on the merits.
Additionally, the Krliches face evidentiary hurdles. For example, Exhibit 1 to
their motion is a standard form police report. (ECF No. 6-1, PageID #286.) The
document appears to have been created after Mr. Krlich called to report tire marks
in his yard. (Id., PageID #288.) Not only did the officer respond to the call and report
the incident, but the written report notes Mr. Krlich only “wanted the incident
documented for a matter of record.” (Id.) Such a police response makes it unlikely
Plaintiffs can meet the high standard for a class-of-one equal protection claim.
Another exhibit is a letter from Mr. Villano, Hubbard’s law director, advising
Mr. Krlich that the police will investigate complaints of ongoing noise violations if he
calls the city’s non-emergency number.

(ECF No. 6-4, PageID #298–99.)

This

evidence does not indicate Defendants lack all rational bases for their actions, again
making it unlikely Plaintiffs will succeed on their claims. Nor does any of Plaintiffs’
other evidence alter this determination. For example, docket reports from several
state court civil matters involving the Krliches—the most recent of which closed some
two years ago—and a decade-old Facebook post involving non-parties to this action

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fail to make success on their claims likely. (ECF Nos. 6-2 & 6-3, PageID #289–91;
ECF No. 6-6, PageID #301.)
Alternatively, the Krliches could demonstrate a likelihood of success on the
merits by showing that Defendants acted with animus or ill will. The Sixth Circuit
“define[s] these terms as reflecting a ‘deep-seated and sometimes virulent’ act of
‘antagonism,’ ‘hostility,’ and ‘animosity.’” Shavers, 2020 WL 6156708, at *5 (quoting
Loesel, 692 F.3d at 466). “Put differently, ‘a plaintiff must prove that the challenged
government actions were motivated by personal malice unrelated to the defendant’s
official duties.’” Id. (quoting Taylor Acquisitions, LLC v. City of Taylor, 313 F. App’x
826, 838 (6th Cir. 2009)).
Considering the evidence provided, and even construing it and the allegations
in the complaint in Plaintiffs’ favor, it is unlikely the Krliches will be able to succeed
on this prong of their class-of-one claim either. Simply, the bar the Sixth Circuit sets
is too high for the Krliches to clear. Even where they might be able to do so, the
Krliches are unlikely to show that the actions at issue are unrelated to Defendants’
official duties.

For these reasons, the Court agrees with the report and

recommendation that Plaintiffs are unlikely to succeed on the merits of their equal
protection claim.
I.B.

The Krliches’ Claim Regarding the Written Policy Against Them

Arguing that the Magistrate Judge failed to address their claim that they are
subjected to a written policy encouraging or permitting the harassment against them,
the Krliches also object to the report and recommendation. (ECF No. 13, PageID
#376.) To be sure, an actual written policy directly encouraging the harassment of,
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or condoning non-responsiveness to Plaintiffs’ purported plight would raise serious
constitutional concern. But the record contains no evidence of such a policy. Contrary
to the objection to the report and recommendation, the complaint disclaims the
existence of such a written policy. (ECF No. 1, ¶ 39, PageID #10 (“[T]here is no
‘official’ City or County policy permitting this campaign against Plaintiff to
continue.”).) Instead, giving Plaintiffs the benefit of the doubt, the objection appears
to rest on faxes the Krliches send to the Hubbard police, which are not investigated
to their liking. (See id., ¶¶ 22 & 23, PageID #7.) Such a practice is a far cry from a
written policy that specifically targets the Krliches or condones harassment of them.
Instead, this objection—so construed—constitutes a complaint regarding how the
Hubbard police deal with faxes.

But the handling of faxes does not implicate

constitutional concerns here. Such claims fail to persuade the Court that Plaintiffs
are likely to succeed on the merits of this claim either.
Therefore, the Court overrules Plaintiffs’ objections directed at the report and
recommendation’s treatment of the merits of their claims.
II.

Claim or Issue Preclusion Based on Krlich I
The report and recommendation recites that “in 2017, Plaintiffs filed a

Section 1983 action in this Court invoking federal question jurisdiction and seeking
injunctive and monetary relief for a violation of their rights under the Equal
Protection Clause of the Fourteenth Amendment” related to Defendants’ “complicity
and active pursuit in a campaign to harass, intimidate, and terrorize Plaintiffs.”
(ECF No. 11, PageID #349 (internal quotation omitted).) It goes on to note that the

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Krliches “sought preliminary and permanent injunctive relief in the 2017 case[,]”
which the Court ultimately denied because they “failed to state a class-of-one claim
upon which relief could be granted.” (Id. (citing Krlich I, at p. 8–9 (cleaned up).)
Plaintiffs object to this characterization, arguing Krlich I “did not address, and
could not have addressed, many of the items/incidents/events/facts contained in
Plaintiffs’ current Complaint because they had not yet occurred.” (ECF No. 13,
PageID #376–77.) They also object that the report and recommendation “makes a
gross generalization” comparing the nature of the claims at issue in Krlich I and those
alleged here. (Id., PageID #377.)
Construing these objections as attacks on the report and recommendation for
relying on preclusion doctrines based on Krlich I, the Court has two responses. First,
the disposition of Plaintiffs’ constitutional claims in Krlich I may well have preclusive
effect for the Krliches claims here—just as a final judgment in this action will bind
the parties and preclude future claims or defenses. At this stage of the proceedings,
however, the Court need not plumb the depths of preclusion doctrine because
Plaintiffs’ claims arising since Krlich I are not likely to succeed on the merits for the
reasons explained above. Second, the report and recommendation expressly declined
to address the effect of Krlich I or base a decision on it. Instead, the Magistrate Judge
found Krlich I to be persuasive in its reasoning, not preclusive in its holding: “While
it is not necessary to determine at this juncture whether this action is barred by res
judicata or collateral estoppel as a result of the 2017 litigation, the [Magistrate Judge]

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finds persuasive the reasoning of and the opinions in that case[.]” (ECF No. 11,
PageID #353.) Accordingly, the Court also overrules these objections.
III.

Irreparable Harm, Balancing of the Equities, and Public Interest
Finally, the Court briefly considers the remaining factors for determining

whether injunctive relief is warranted. Notwithstanding the Court’s conclusion that
Plaintiffs’ claim is likely to fail on the merits, district courts must “weigh the strength
of the four factors against one another.” D.T. v. Sumner Cnty. Schs., 942 F.3d 324,
326 (6th Cir. 2019) (citations omitted). There are three remaining considerations—
irreparable injury, a balancing of the equities, and the public interest.
The report and recommendation determined that the Krliches failed to provide
“evidentiary support for their claims of irreparable harm” and that a Facebook post
“from over 10 years ago” is not enough to justify emergency relief. (ECF No. 11, Page
ID #352.) Further, the Magistrate Judge assumed that, even if the equities and
public interest favor an injunction, Plaintiffs’ failure on the other two factors—
likelihood of success on the merits and irreparable injury—was fatal. (ECF No. 11,
PageID# 352–53.) The Court agrees. Weighing all considerations for the issuance of
an injunction, the Court declines to do so.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiffs’ Objections
(ECF No. 13), ADOPTS the Report and Recommendation (ECF No. 11), and
DENIES Plaintiffs’ Motion for Temporary Restraining Order and Preliminary
Injunction (ECF No. 6).

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SO ORDERED.
Dated: January 7, 2021

J. Philip Calabrese
United States District Judge
Northern District of Ohio

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