Harris et al v. Texarkana, Arkansas, City of et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 13 Report and Recommendations; denying 3 Motion for TRO; denying 3 Motion for Preliminary Injunction. Signed by Honorable Susan O. Hickey on December 5, 2012. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

LANEY HARRIS and
KEITH BURSEY

vs.

PLAINTIFFS

Civil No. 4:12-cv-04050

CITY OF TEXARKANA, ARKANSAS et al.

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed October 16, 2012 by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 13). Judge Bryant has reviewed Plaintiffs’ Motion for Temporary Restraining Order,
and in the alternative, Motion for Preliminary Injunction. (ECF No. 3). Judge Bryant
recommends denying the motion. Plaintiffs have filed an objection to Judge Bryant’s Report.
(ECF No. 14). The matter is ripe for the Court’s consideration.
Plaintiffs seek to enjoin the City of Texarkana, Arkansas from towing vehicles from their
private property pursuant to a city ordinance. Plaintiffs claim that Defendants’ actions violate
their Fourth, Fifth, and Fourteenth Amendment rights. Judge Bryant recommends denying
Plaintiffs’ motion because they failed to show the threat of irreparable harm required to receive
injunctive relief. Plaintiffs object to Judge Bryant’s report on what appears to be three grounds. 1
First, Plaintiffs argue that Judge Bryant failed to consider all four factors of injunctive
relief in recommending their motion be denied. Second, Plaintiffs maintain that they face

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Plaintiffs appeared before Judge Bryant in this matter as pro se plaintiffs. In their objection to Judge Bryant’s
report, Plaintiffs primarily reassert the merits of their case. As to the threat of irreparable harm issue, the Court
construes Plaintiff’s objection to include three arguments.

irreparable harm because the average person is incapable of paying the fee necessary to retrieve
his vehicle once it has been towed. Third, Plaintiffs contend that when a constitutional right is
involved, most courts hold that no further showing of irreparable injury is necessary. Because
none these objections overcome the absence of irreparable harm to Plaintiffs, the Court adopts
Judge Bryant’s report as its own.
First, there are four factors that must be shown before injunctive relief may be granted:
“(1) the likelihood of the movant's success on the merits; (2) the threat of irreparable harm to the
movant in the absence of relief; (3) the balance between that harm and the harm that the relief
would cause to the other litigants; and (4) the public interest.” Watkins Inc. v. Lewis, 346 F.3d
841, 844 (8th Cir. 2003). Plaintiff is correct to argue that all four of these factors are required.
Failure to show irreparable harm by itself, however, “is an independently sufficient ground upon
which to deny a preliminary injunction.” Id. Therefore, Judge Bryant was not required to address
the other three factors once he concluded that Plaintiffs presented no irreparable harm. For that
reason, Plaintiffs’ first objection lacks merit.
Second, Plaintiffs’ argument that the average person lacks the ability to pay a towing fee
is misplaced. The “average person” is not the standard by which the Court measures irreparable
harm. Rather, it is the movant’s potential harm that establishes whether injunctive relief is
proper. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981). Here, the Court
has not certified a class of plaintiffs that would somehow implicate harm to the average person.
More importantly, Plaintiffs’ own conduct demonstrates the absence of irreparable harm.
Plaintiff Bursey testified that, after his vehicle was towed, he paid the fee to retake possession of
his vehicle. That circumstance does not establish irreparable harm, but instead, suggests that
Plaintiffs may have a remedy at law. See Packard Elevator v. I.C.C., 782 F.2d 112, 115 (8th Cir.

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1986) (finding injunctive relief improper when a remedy at law is otherwise available). Plaintiffs
can recover damages for any towing fees they have paid if the Texarkana city ordinance is later
found unlawful when this case is decided on the merits.
Third, the mere fact that Plaintiffs allege a constitutional deprivation does not dispense
with the irreparable harm requirement for granting injunctive relief. Plaintiffs cite two out of
circuit cases that purportedly stand for the proposition that a showing of irreparable harm is not
necessary when constitutional violations are at stake. See Cambell v. Miller, 373 F.3d 834, 840
(7th Cir. 2004) (J. Williams, dissenting); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984).
The Eighth Circuit has not adopted such a rule. But even so, the rule has no application in this
case where Plaintiffs appear to have an adequate remedy at law. See Cambell, 373 F.3d at 835
(holding that damages are a “normal, and adequate, response to an improper search or seizure” in
violation of the Fourth Amendment). Therefore, Plaintiffs’ third objection also lacks merit.
Accordingly, the Court finds that Plaintiffs have failed to demonstrate a threat of
irreparable harm. The Court therefore adopts Judge Bryant’s Report and Recommendation in its
entirety. Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction should
be and hereby is DENIED.
IT IS SO ORDERED, this 5th day of December, 2012.

/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge

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