The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Regina Jordan, et al., : Case No. 1:18-cv-53
:
Plaintiffs, : Judge Susan J. Dlott
:
v. : Order Granting in Part Defendants’
: Motion for Summary Judgment and
Union Township Board of Trustees, : Staying Case Pursuant to Younger
: Abstention
Defendants. :
Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. 38) only
insofar as Defendants have asked the Court to dismiss the case on the basis of Younger
abstention.1 For the reasons that follow, the Court concludes that abstention is appropriate. The
Court will GRANT IN PART the Motion for Summary Judgment to the extent the Court will
stay this case.
I. BACKGROUND
Plaintiff Regina Jordan owns and resides at the property located at 456 Old State Route
74 in Union Township, Clermont County, Ohio. (Doc. 1 at PageID 3.)2 The property is
approximately 0.5 acres, is located in a largely commercial area, and is located between State
Route 32 and Old State Route 74. (Id. at PageID 6.) Jordan was involved in a car accident in or
1 Younger v. Harris, 401 U.S. 37 (1971).
2 Plaintiffs purported to file a Verified Complaint, but only Plaintiff Jordan signed a sworn Verification that the
facts therein are true. The allegations in a verified complaint generally have the same force and effect as an affidavit
for the purpose of responding to a motion for summary judgment. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.
1993); Torba v. J.M. Smucker Co., 888 F. Supp. 851, 853 (N.D. Ohio 1995). However, here, Jordan testified in her
deposition that she did not remember reading the Verified Complaint and she testified differently as to certain facts.
(Compare Doc. 1 at PageID 6 with Doc. 30 PageID 566, 632–633; Doc. 30 at PageID 705.) There are no disputed
facts here relevant to the resolution of the abstention issue.
Moreover, to the extent that Plaintiff Housing Opportunities Made Equal, Inc. did not sign a verification, the
Verified Complaint allegations purportedly based on its information and belief will not be accepted as affidavit-like
evidence.
about 2015. (Id. at PageID 3–4.) She alleges that she suffered debilitating injuries and is
disabled as a result. (Id. at PageID 4.)
At some point after the accident, Jordan acquired a mixed-breed horse named Belle. (Id.)
Jordan keeps Belle on her property, along with a potbelly pig, two dogs, and a cat. (Jordan Dep.,
Doc. 30 at PageID 517, 550–551.) In or about June 2016, Jordan obtained a registration for
Belle as a “service animal” and an “emotional support animal” from a commercial entity entitled
Register My Service Animal, LLC. (Doc. 30-2 at PageID 763, 778.) Jordan wrongly identified
Belle as a miniature horse on the registration. (Id. at PageID 763.) Jordan did not consult with a
physician before having Belle registered as a service animal. (Jordan Dep. II, Doc. 31 at PageID
1077, 1080.) The certificate provided to Jordan for Belle states on its face that the registration is
“not a certification process” and that registration is based upon “assertions made by the animal
owner.” (Doc. 30-2 at PageID 750.)
On April 19, 2017, the Union Township Planning and Zoning Department (“UT Zoning
Department”) sent a letter to Jordan accusing her of violating the Union Township Zoning
Resolution (“UT Zoning Resolution”) and state zoning law by keeping a hog and a horse on her
property. (Doc. 38-2 at PageID 2993.) Union Township gave her a May 3, 2017 deadline to
respond. (Id.) Jordan responded in a letter dated May 2, 2017. She stated that Belle was a
“registered service animal for me and as such is protected under the American Disabilities Act
[sic] (ADA) for companionship and assistance.” (Id. at PageID 2994–2996.) She attached the
service animal registration certificate she obtained from Register My Service Animal, LLC that
wrongfully identified Belle as a miniature horse. (Id.) Jordan contends that this May 2, 2017
letter constituted a request for reasonable accommodation.
On May 8, 2017, Defendant Cory Wright, the director of the UT Zoning Department, sent
a second letter to Jordan stating that she was violating the UT Zoning Resolution. (Id. at PageID
3009–3011.) Wright stated in part that “[i]t is illegal for the horse & pig to be kept on this
property and the conditions of your rear yard are deplorable and must be cleaned up and all
debris must be removed.” (Id.) Wright did not acknowledge or address Jordan’s May 2, 2017
purported request for reasonable accommodation in this letter. He gave Jordan a June 8, 2017
deadline to correct the violations or face legal action. (Id.) Thereafter, as set forth below in the
next subsection, Defendant Union Township Board of Trustees (“Union Township”) filed a suit
for injunctive relief against Jordan in state court on June 19, 2017.
On or about July 27, 2017, Jordan obtained a letter from her primary physician, Dr.
Roger Chang with HealthSource of Ohio, stating that “Ms. Jordan has a horse that she needs for
ambulation and companionship” and that it was “medically necessary for her to have this service
animal.” (Doc. 38-3 at PageID 3045.)
Finally, on September 14, 2017, Jordan and Plaintiff Housing Opportunities Made Equal
(“HOME”), through their attorney, sent a second written request for a reasonable
accommodation to Defendant Kenneth Geis, the administrator for Union Township, this time
under the Fair Housing Amendments Act (“FHAA”). (Doc. 37-1 at PageID 2902–2905.) The
attorney repeatedly, and incorrectly, referred to Belle as a miniature horse again in the letter.
(Id.) The attorney attached in support a copy of Jordan’s May 2, 2017 letter, the service animal
registration certificate from Register My Service Animal, LLC, and the July 27, 2017 letter from
Dr. Chang stating that Jordan had a medical need for her horse as a service animal. (Id. at 2906–
2916.)3
B. Procedural Posture
1. State Action
On June 19, 2017, Union Township filed a Complaint for Preliminary and Permanent
Injunction against Jordan in the Clermont County, Ohio Court of Common Pleas, Union
Township Board of Trustees v. Jordan, 2017 CVH 00748 (Clermont Cty., Ohio C.P.) (“State
Action”). (Doc. 38-2 at PageID 2976–3030.) Union Township alleged that Jordan had violated
nine provisions of the UT Zoning Resolution. (Id. at PageID 2979.) It sought an injunction
enjoining her from violating the UT Zoning Resolution and directing remediation of the
property. (Id.) It also prayed for damages in the amount of $500 per day, per violation, from
April 19, 2017 through the future date of compliance. (Id. at PageID 2980.)
On September 20, 2018, Jordan filed her Answer and Counterclaim in the State Action,
(Doc. 38–3 at PageID 3031–3045), approximately one week after sending Union Township the
September 14, 2017 second written request for reasonable accommodation. Once again, Jordan,
through her attorney, mistakenly referred to Belle as a miniature horse. (Id. passim.) She
alleged that she had submitted the second request for reasonable accommodation to Union
Township on September 14, 2017, and she attached Dr. Chang’s July 27, 2017 letter stating that
she required Belle as a service animal for ambulation and companionship. (Id. at PageID 3038,
3045.) Jordan asserted counterclaims for discrimination under Ohio law and the FHAA. (Id. at
PageID 3038–3039.) She sought declaratory and injunctive relief barring Union Township from
3 The Court notes that the copy of the September 14, 2017 letter that Plaintiffs attached as an exhibit to their
Verified Complaint did not include the July 27, 2017 Dr. Chang letter. Instead, they attached a June 19, 2017 letter
stating that Jordan’s handicap placard would expire on June 9, 2020. (Doc. 1-1 at PageID 24.)
enforcing the UT Zoning Resolution against Belle or the potbelly pig. (Id. at PageID 3041–
3042.)
Finally, on October 20, 2017, Jordan filed an Agreed Amended Answer and
Counterclaim clarifying that Belle is not a miniature horse. Union Twp. Bd of Trustees v.
Jordan, No. 2017 CVH 00748 (Clermont Cty., Ohio C.P. Oct. 20, 2017). She again alleged that
she had submitted a second request for reasonable accommodation to Union Township on
September 14, 2017, and she asserted counterclaims for discrimination under Ohio law and the
FHAA. Id., Agreed Amended Answer and Counterclaim, at 8–9 & Ex. G.
2. Federal Action
On January 25, 2018, Jordan and HOME filed the Verified Complaint for Declaratory
Relief against the Union Township Board of Trustees, Kenneth Geis, and Cory Wright in this
Federal Action. In it, they complain that Union Township failed to respond to Jordan’s
September 14, 2017 second request for reasonable accommodation. (Doc. 1 at PageID 7, 16–
19.) They assert claims for violations of the FHAA and Ohio Revised Code § 4112.02(H)(1),
and they seek equitable relief and compensatory and punitive damages. (Id. at PageID 10–12.)
On February 12, 2018, Defendants filed an Answer in which they raised abstention as an
affirmative defense. (Doc. 9 at PageID 89.)
Following discovery, both parties moved for summary judgment. (Docs. 37, 38.) The
Court struck Plaintiffs’ Motion for Summary Judgment for failing to comply with the
requirements of the Court’s Standing Order on Civil Procedures. (Doc. 39 at PageID 3046.) The
Court also suspended briefing on the Motions for Summary Judgment except for the threshold
issue of Younger abstention. (Id. at PageID 3046–3047.) The parties now have fully briefed the
Younger abstention issue.
II. STANDARDS ON MOTION FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary
judgment is appropriate if “there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden to
show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d
806, 811 (6th Cir. 2011).
III. ANALYSIS
Defendants assert that the Younger abstention doctrine applies and that the Court should
dismiss this action because of the pending State Action. The Sixth Circuit has explained
Younger abstention as follows:
Younger abstention requires a federal court to abstain from granting injunctive or
declaratory relief that would interfere with pending state judicial proceedings.
We look to three factors to determine whether a court should abstain from hearing
a case under the Younger doctrine: “(1) there must be on-going state judicial
proceedings; (2) those proceedings must implicate important state interests; and
(3) there must be an adequate opportunity in the state proceedings to raise
constitutional challenges.”
O'Neill v. Coughlan, 511 F.3d 638, 643 (6th Cir. 2008) (internal citations omitted). Upon initial
examination, this case appears to fit within the strictures of a “typical Younger case” in which
Jordan, a federal plaintiff, is the defendant in ongoing state court proceedings, and she is using
the same factual basis to support her claim in the federal court proceedings and her defense in the
state court proceedings. Crawley v. Hamilton Cty. Comm’rs, 744 F.2d 28, 30 (6th Cir. 1984).
The Court will proceed to examine each factor of the Younger abstention test.
First, the State Action is on-going. Pursuant to the records available on the Clermont
County Clerk of Court’s website, www.clermontclerk.org, the case is set for trial on March 23–
24, 2020. Union Township Bd. of Trustees v. Jordan, 2017-CVH-00748, Expedited Civil Pretrial
Order (Clermont Cty., Ohio C.P., July 30, 2019).
Second, the on-going State Action concerns matters which implicate important state
interests. Union Township seeks to enforce its Zoning Resolution against Jordan, and she
contends that its Zoning Resolution is inapplicable or that she should be granted an exemption
from it as a reasonable accommodation for her purported disability. The Sixth Circuit has called
a challenge to a zoning ordinance a “textbook candidate for abstention” and stated that the
enforcement and application of zoning ordinances “implicate important state and local interests.”
Ken-N.K., Inc. v. Vernon Township, 18 F. App’x 319, 324 (6th Cir. 2001); see also Fontain v.
Lane, No. 1:19-cv-304, 2019 WL 2051941, at *3 (S.D. Ohio May 9, 2019) (stating that
“regulating zoning and land use” is an important state interest), report and recommendation
adopted, 2019 WL 2341565 (S.D. Ohio June 3, 2019).
Third, Jordan has had an adequate opportunity in the State Action to raise her federal law
concerns. Jordan alleges in a counterclaim in the State Action that Union Township has
discriminated against her in housing in violation of the FHAA. She specifically alleges that
Union Township failed to accommodate her disability by allowing Belle to remain on her
property as a service animal. There is no meaningful distinction between Jordan’s federal
housing discrimination allegations in the Agreed Amended Answer and Counterclaim in the
State Action and her federal housing discrimination allegations in this Federal Action.
Nonetheless, Jordan argues in her brief opposing abstention that she cannot assert the
September 14, 2017 second request for reasonable accommodation as a defense in the State
Action to the purported zoning violations because that request was made approximately two
months after Union Township initiated the State Action on April 19, 2017. Jordan may be
correct that the September 14, 2017 second written request for a reasonable accommodation
could not provide a retroactive defense for the purported zoning violations that occurred between
April 19, 2017 and September 14, 2017. However, the second request for reasonable
accommodation was asserted as a defense to the purported zoning violations that were on-going
after September 14, 2017. Jordan’s argument ignores the fact that she specifically pleaded
allegations about the second request for reasonable accommodation in the initial Answer and
Counterclaim and in the Agreed Amended Answer and Counterclaim in the State Action. The
state court should have the first opportunity to address whether Jordan is entitled to relief from
application of the UT Zoning Resolution as a reasonable accommodation for her purported
disability. The Court concludes that the requirements for Younger abstention are satisfied.
All that remains is to determine whether Plaintiffs’ claims in this Federal Action should
be dismissed or stayed during the pendency of the State Action. The Sixth Circuit has instructed
that a district court should examine the type of relief sought by the plaintiff to determine whether
to dismiss or stay a case pursuant to Younger abstention:
[T]he United States Supreme Court has held that “[u]nder our precedents, federal
courts have the power to dismiss or remand cases based on abstention principles
only where the relief being sought is equitable or otherwise discretionary.”
Quackenbush, 517 U.S. at 731, 116 S.Ct. 1712 (emphasis added). See also
Carroll, 139 F.3d at 1079 (Moore, J., concurring in part) (“While Quackenbush
involved Burford abstention, its reasoning applies with equal force to Younger
abstention.”). Whether the plaintiffs seek a legal versus an equitable remedy
controls how the district court disposes of the case after holding that the Younger
doctrine applies to it. If the plaintiffs seek equitable relief, such as an injunction,
then the district court may exercise its discretion and decide whether to dismiss
the case, and we would then review its decision for abuse of discretion. Coles,
448 F.3d at 865. But where, as here, the plaintiffs seek purely legal relief, in the
form of damages, Quackenbush prevents the district court from even exercising
its discretion and deciding to dismiss the case.
Nimer v. Litchfield Twp. Bd. of Trustees, 707 F.3d 699, 702 (6th Cir. 2013). Plaintiffs seek both
equitable relief, in the form of a declaratory judgment and an injunction, and legal relief, in the
form of damages, in this Federal Action. The Court will stay the case pending resolution of the
State Action. See Huth v. Hubble, No. 5:14-cv-1215, 2016 WL 966307, at *10 (N.D. Ohio Mar.
4, 2015) (staying case when the plaintiff sought both equitable and legal relief).
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED
IN PART. This Federal Action is hereby STAYED during the pendency of Union Township
Board of Trustees v. Jordan, 2017 CVH 00748 (Clermont Cty., Ohio C.P.). The parties are
directed to jointly file a status report at the conclusion of the State Action apprising the Court
whether any issues remain for adjudication here or whether dismissal is appropriate. The parties
should attach a copy of the final judgment and any dispositive orders from the State Action as
exhibits to the joint status report.
IT IS SO ORDERED.
Dated this 29th day of October, 2019.
BY THE COURT:
S/Susan J. Dlott
Susan J. Dlott
United States District Judge