United States District Court, S.D. Ohio, Eastern Division
ORDER GRANTING PLAINTIFF'S MOTION FOR TEMPORARY
ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Madeleine Entine's Motion
for Temporary Restraining Order (ECF No. 2) against Defendant
Scott Lissner, ADA coordinator at the Ohio State University.
Entine seeks an order enjoining Lissner and all those acting
in concert with him, including the University, from removing
her from the Chi Omega sorority house or taking any adverse
action against her if she remains in the house. Having
considered the Motion, and all papers in support of and in
opposition to the Motion, as well as the arguments of counsel
at the S.D. Ohio Civ. R. 65.1 conference, the Court hereby
GRANTS the Motion.
has shown the immediacy and irreparability of harm necessary
to warrant the extraordinary relief of a TRO. See
Women's Med. Prof I Corp. v. Baird, No. 03-CV-162,
2008 WL 545015, at *l-2 (S.D. Ohio Feb. 27, 2008) (Marbley,
J.) (noting that, when deciding whether to grant a motion for
TRO, focusing on the "irreparability and immediacy of
harm" remains consistent with the commands of Rule
65(b)). The immediacy factor is easily satisfied here.
Without the Court's intervention, Entine would be
required to make the following choice by Monday,
October 30, 2017: move out of the Chi Omega sorority
house, or continue living in the house without her service
animal, Cory. With regard to irreparability, where, as here,
a plaintiff seeks injunctive relief to prevent the violation
of a federal statute that specifically provides for
injunctive relief, she need not even show irreparable harm.
Jordan v. Greater Dayton Premier Mgmt., 9 F.Supp.3d
847, 862 (S.D. Ohio 2014) (citation omitted). But even so,
Entine has shown that she will suffer irreparable harm if the
TRO is not granted. In the absence of a TRO, Entine will
either be forced to move out of the Chi Omega house or live
in the house without Cory. And if she does choose to move out
of the house and her room is re-rented to another sorority
member, she will not be able to return to the house if the
Court ultimately rules in her favor. See Chapp v.
Bowman, 750 F.Supp. 274, 277 (W.D. Mich. 1990) (finding
that plaintiffs demonstrated they would suffer irreparable
injury if they sold property to an innocent purchaser in the
absence of a preliminary injunction, because they could not
undo the sale). Moreover, as Vice President of the Chi Omega
sorority, Entine is required to live in the sorority house.
Thus, if Entine moves out of the house, she could lose her
position as an officer in the Chi Omega sorority.
addition, the Court notes that Lissner apparently considered
Cory to be an "emotional support animal" rather
than a service animal as defined by the ADA regulations.
See 28 C.F.R. § 35.104. Under these
regulations, the University must generally permit the use of
a service animal, id. § 35.136(a), subject to
several narrow exceptions: (1) if Cory's presence would
fundamentally alter the nature of the University's
services, programs, or activities; (2) if Cory would pose a
direct threat to the health or safety of others; or (3) if
Cory was out of control or not housebroken. See Id.
§§ 35.130(b)(7)(i); 35.139; 35.136(b). Further, the
Department of Justice's guidance interpreting the ADA
regulations clearly states that allergies and fear of dogs
are not valid reasons for denying access to people using
service animals. (See ECF No. 2 at 9.) Because
Lissner did not consider Cory a service animal, his inquiry
was not rigorous enough to determine whether one of the
exceptions to the ADA's requirement that public entities
allow the use of service animals applied to Cory.
the University's position that Lissner had to make a
"disability-neutral" determination as to which Chi
Omega member should be accommodated-which resulted in Lissner
accommodating the member that signed her lease first-nowhere
in the University's written policies or procedures is
there legal authority supporting this position. Nor is this
"policy" recorded anywhere. It appears to be a
completely arbitrary practice of Lissner's that may not
even be consistent with the University's policies,
practices, and procedures.
questions remain about Ms. Goldman's health condition. It
is unclear from the record before the Court whether Ms.
Goldman has requested an accommodation from the University
for the allergies which purportedly exacerbate her
Crohn's disease. Also troubling to the Court is the
uncontroverted evidence that members of the Chi Omega
sorority informed Lissner that Ms. Goldman "disclosed
that her father suggested she enter [Entine's] room when
[Entine] was away and rub her face in [Entine's] things
to worsen her allergic reaction." (Verified Compl., Doc.
1, Ex. 3, at 6.) This evidence calls into question both me
severity of Ms. Goldman's condition, the veracity of Ms.
Goldman's assertions, and the depth of Lissner's
Entine's Motion for Temporary Restraining Order is
GRANTED. Pursuant to Fed.R.Civ.P. 65,
Lissner and all others in active concert with him who receive
actual notice of this Temporary Restraining Order by personal
service or otherwise, are enjoined from removing Entine from
the Chi Omega sorority house or taking any adverse action
against her if she remains in the house.
must post a bond of $1.00 by 12:00
p.m. on Tuesday, October 31, 2017. This Temporary
Restraining Order will remain in effect until adjournment of
the Preliminary Injunction hearing. The Preliminary
Injunction hearing will be held on Wednesday,
November 8, 2017, at 9:30 a.m., before the Honorable
Algenon L. Marbley, United States District Court, 85 Marconi
Boulevard, Columbus, Ohio, Court Room 1, Room 331. The Court
will not continue the hearing date except upon written motion
supported by an affidavit demonstrating exceptional
circumstances, made immediately upon the party's or
counsel's receipt of notice of the existence of the
must file her Motion for Preliminary Injunction by
Wednesday, November 1, 2017. Defendant's
response in opposition to the Motion for Preliminary
Injunction must be filed on or before Monday,
November 6, 2017. Plaintiff must file any reply in
support of her Motion by 5:00 p.m. on
Tuesday, November 7, 2017. The focus of the
parties' briefing should be the four factors the Court
will consider in determining whether a Preliminary Injunction
is warranted: (1) whether the movant has a strong likelihood
of success on the merits; (2) whether the movant would suffer
irreparable injury absent the injunction; (3) whether
issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served
by the issuance of the injunction.
appendix outlining the briefing schedule and procedures to be
followed at the Preliminary Injunction hearing ...