Harris v. City of Clearlake

Filing 12

ORDER by Judge Yvonne Gonzalez Rogers denying 2 Motion for Preliminary Injunction. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 10/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SMILEY JAMES HARRIS, et al.,
Plaintiffs,

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v.

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CITY OF CLEARLAKE, et al.,

ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION
Re: Dkt. No. 2

Defendants.

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Now before the Court is pro se plaintiff Smiley James Harris’ and plaintiff Church of the

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United States District Court
Northern District of California

Case No.17-cv-05126-YGR

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Greater Faith & Redemption d.b.a. Harris Enterprises, LLC.’s motion for a preliminary injunction

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to prevent the City of Clearlake from “unlawfully restricting the religious activities of the Church

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of the Greater Faith and Redemption.”1 (Dkt. No. 2.) Although the motion does not specify

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precisely the conduct to be enjoined, it appears from the Complaint, (Dkt. No. 1, Complaint), and

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motion for preliminary injunction that plaintiff seeks to prevent defendants from obtaining a

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warrant to eradicate several marijuana plants growing on the property of non-party Dwayne

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Yiggins, Jr. (the “Property”). Having carefully considered the pleadings, the papers submitted on

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this motion, and for the reasons set forth below, the Court DENIES the motion.2

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I.

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BACKGROUND
Plaintiff Smiley Harris is the founder, administrator, and senior right reverend for the

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As organizations cannot be represented by non-lawyers, In re America West Airlines, 40
F.3d 1058, 1059 (9th Cir. 1994) (per curiam), the Court considers this petition only on behalf of
Mr. Smiley himself. See Section II.A herein.
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Defendants filed a request for judicial notice of City of Clearlake Ordinance No. 1972017 and the summons documents served on the City of Clearlake in this case. (Dkt. No. 7.) In
light of the non-opposition to either, the Court GRANTS the request but does not accept the truth of
any matters asserted in the documents. The Court gives such documents their proper evidentiary
weight.

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Church of the Greater Faith & Redemption (the “Church”). (Complaint ¶¶ 7-8.) According to the

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Complaint, the Church is a religious organization which operates under the name Harris

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Enterprises, LLC. (Id. ¶ 6.) Plaintiff avers that the Church “cultivate[s] cannabis for sacrament.”

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(Id. ¶ 14).
In March 2017, “Plaintiff entered into a contract with Dwayne L. Yiggins, Jr. so that the

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Church could make sure of Mr. Yiggins’ land for Church activities, which apparently include the

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cultivation of cannabis. (Id. ¶ 23.) On July 18, 2017, Yiggins became aware of an administrative

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citation on the Property for “ordinance violations pertaining to the restrictions placed on the

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cultivation of Medical marijuana,” namely City Municipal Code subsections 18-9.070(a) (failure

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to obtain a permit for personal marijuana cultivation), (b) (illegal outdoor cultivation of marijuana

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United States District Court
Northern District of California

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in an areas larger than 100 square feet), (d) (lack of enclosed cultivation site), and (g) (cultivation

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of more than six living marijuana plants). (Id. ¶ 25.) Harris alleges that he attempted to contact

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defendants City Manager Greg Folsom and Code Enforcement Officer Steve Felder via telephone

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that same day, but was informed that both were unavailable. (Id. ¶ 26.) The following day, Felder

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allegedly returned the call and stated that “he intended to seek a warrant to suspend the Church’s

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activities [destroy its plants] if the Church did not comply with the “Administrative Citation,

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Illegal Cultivation of Marijuana” notice.” (Id. ¶ 28 (emphasis and brackets in original).) In

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response, this lawsuit ensued on September 1, 2017.

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II.

DISCUSSION

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A.

Church of the Greater Faith & Redemption

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Pursuant to 28 U.S.C. 1654, “parties may plead and conduct their own cases personally.”

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However, “[c]orporations and other unincorporated associations must appear in court through an

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attorney.” In re America West Airlines, 40 F.3d at 1059; Church of the New Testament v United

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States, 783 F. 2d 771, 773 (9th Cir. 1986) (finding that plaintiff Church was an “unincorporated

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association which must appear though an attorney”); Lattanzio v. COMTA, 481F.3d137, 139-40

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(2d Cir. 2007) (applying rule to Limited Liability Corporations). Similarly, Civil Local Rule 3-

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9(b) provides that a “corporation, unincorporated association, partnership, or other such entity may

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appear only through a member of the bar of this court.”
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Here, the Church of The Greater Faith & Redemption is a trade name for Harris

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Enterprises LLC, a Limited Liability Corporation. Smiley Harris, who is not a licensed attorney

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and acting pro se, purports to represent the Church in this matter. This is improper under Ninth

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Circuit case law and the local rules of this district. For this reason, the motion is DENIED as to the

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Church.

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B.

Claims of Smiley Harris

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A preliminary injunction is an extraordinary remedy, which should be granted only in

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limited circumstances and where the merits of the case plainly favor one party over the other.

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Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The Court assess four factors when
considering motions for a preliminary injunction, namely whether: (1) the moving party has

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United States District Court
Northern District of California

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demonstrated that it is likely to succeed on the merits; (2) the moving party will suffer irreparable

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injury if the relief is denied; (3) the balance of the hardships favor the moving party; and (4) the

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public interest favors granting relief. See Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124

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(9th Cir. 2014) (citing Winter, 555 U.S. at 20). The plaintiff must make a threshold showing of

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likelihood of success on the merits and irreparable harm, but a stronger showing on one element

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may offset a weaker showing on another. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,

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1131–33 (9th Cir. 2011). The Court addresses each.

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Likelihood of Success on the Merits

The burden of showing a likelihood of success on the merits is “placed on the party

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seeking to demonstrate entitlement to the extraordinary remedy of a preliminary injunction at an

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early stage of the litigation, before the defendant has had the opportunity to undertake extensive

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discovery or develop its defenses.” Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 714

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opinion amended on reh’g, 508 F.3d 1146 (9th Cir. 2007). The Court finds that Harris has not

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satisfied this burden.

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Harris alleges four causes of action for religious discrimination against the City of

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Clearlake, Greg Folsom, Steve Felder, and an unspecified number of DOE defendants.

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(Complaint ¶¶ 33-44.) “The Free Exercise Clause of the First Amendment, which has been made

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applicable to the States by incorporation into the Fourteenth Amendment, provides that ‘Congress
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shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

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. . . .’” Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 876–77 (1990)

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(quoting U.S. Const., Amdt. 1). Under the Free Exercise Clause, the “government may not

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compel affirmation of religious belief, punish the expression of religious doctrines it believes to be

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false, impose special disabilities on the basis of religious views or religious status, or lend its

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power to one or the other side in controversies over religious authority or dogma.” Id. (Internal

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citations omitted). However, the Supreme Court has “consistently held that the right of free

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exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of

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general applicability.’” Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n.3; see also
Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 595 (collecting cases)). The only

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United States District Court
Northern District of California

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“decisions in which [the Supreme Court has] held that the First Amendment bars application of a

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neutral, generally applicable law to religiously motivated action have involved not the Free

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Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional

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protections, such as freedom of speech and of the press.” Id. at 880. (Internal citations omitted).

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Here, Harris avers that his free exercise of religion is being violated by (i) defendants’

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serving of an administrative citation for “ordinance violations pertaining to the restrictions placed

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on the cultivation of Medical marijuana,” and (ii) Felder’s representation that he intends to seek a

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warrant to suspend certain Church activities if the Church did not comply with Section 18-9.070.

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(Id. ¶¶ 25, 28.) However, the Complaint fails to indicate how defendants’ conduct “unduly

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burdens the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 220 (1972). Put

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differently, Harris fails to allege how defendants’ conduct infringes on his right to use marijuana

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in religious sacrament. For example, he does not allege that the challenged conduct prevents him

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from using marijuana in sacrament, or that Harris has been prohibited from cultivating marijuana

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for such use in a manner that satisfies the requirements of Section 18-9.070.

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Further, defendants’ conduct arises from plaintiff’s failure to comply with Section 18-

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9.070 which is a “neutral law of general applicability” that sets various permitting, enclosure and

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spatial restrictions on the cultivation of marijuana. See Smith, 494 U.S. at 879. As discussed

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above, “the right of free exercise does not relieve [Harris] of the obligation to comply with” such a
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statute. Id. Therefore, the Court finds that plaintiff has not shown a likelihood of success on the

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merits.
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Likelihood of Irreparable Injury

To obtain a preliminary injunction, Harris must “demonstrate a likelihood of irreparable

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injury,” more than a mere possibility. Winter, 555 U.S. at 21. To establish a likelihood of

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irreparable harm, conclusory or speculative allegations are not sufficient. Herb Reed, 736 F.3d at

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1250 (holding that pronouncements “grounded in platitudes rather than evidence” are insufficient);

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Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) (holding that

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“[s]peculative injury does not constitute irreparable injury sufficient to warrant granting a
preliminary injunction” and adding that a “plaintiff must demonstrate immediate threatened injury

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United States District Court
Northern District of California

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as a prerequisite to preliminary injunctive relief” (emphasis in original)).
Here, Harris has not demonstrated that absent an injunction he will suffer irreparable

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injury. As an initial matter, most of the harm alleged in the Complaint appears to pertain to the

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Church which is not properly represented in this matter, rather than to Smiley Harris. (See e.g.,

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Complaint ¶ 28 (“Felder stated that he intended to seek a warrant to suspend the Church’s

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activities . . . .”) Additionally, as discussed above, Harris has not shown that defendants’

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enforcement of Section 18-9.070 will prevent Harris from using marijuana in sacrament. For

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example, the ordinance permits Harris to cultivate six living marijuana plants subject to

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permitting, enclosure and spatial restrictions. Harris has not shown that six plants are insufficient

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to meet his personal religious needs, or that he cannot obtain marijuana plants to satisfy his

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religious needs through other means. Therefore, plaintiff has not shown a likelihood of irreparable

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harm.
Given that plaintiff cannot satisfy even two of the four prongs required for relief, the Court

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need not address the remaining two. Accordingly, the motion for a preliminary injunction is

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DENIED.

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III.

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CONCLUSION
As discussed above, the Court DENIES the motion on the grounds that (i) the Church is not

properly represented, and Harris has not shown a likelihood of (ii) success on the merits or (iii)
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irreparable injury.

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This terminates Dkt. No. 2.

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IT IS SO ORDERED.

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Dated: October 10, 2017

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YVONNE GONZALEZ ROGERS
United States District Judge

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United States District Court
Northern District of California

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