Mcloud v. County of Sonoma et.al.

Filing 29

ORDER by Hon. Haywood S. Gilliam, Jr. VACATING the July 25, 2022 temporary restraining order and SETTING a telephonic hearing to discuss Dkt. No. 1 Plaintiffs' request for preliminary injunction on August 18, 2022, at 2:00 p.m. All counse l and parties shall use the following dial-in information to access the call: Dial-In: 888-808-6929;Passcode: 6064255 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties shall use landlines. (hsglc1, COURT STAFF) (Filed on 7/29/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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Case 4:22-cv-04284-HSG Document 29 Filed 07/29/22 Page 1 of 6 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DENISE MCLOUD, et al., Plaintiffs, 8 v. 9 ORDER VACATING TEMPORARY RESTRAINING ORDER Re: Dkt. Nos. 1, 6 10 COUNTY OF SONOMA, et al., Defendants. 11 United States District Court Northern District of California Case No. 22-cv-04284-HSG 12 13 I. FACTUAL AND PROCEDURAL BACKGROUND 14 On July 25, 2022, seven pro se Plaintiffs filed this action against Defendants County of 15 Sonoma and City of Santa Rosa, as well as several individual employees of these entities.1 See 16 Dkt. No. 1. Plaintiffs allege that they are unhoused residents of a portion of the Joe Rodota 17 Regional Trail in Santa Rosa, California. Dkt. No. 1 at ¶¶ 1–6, 16. They allege that on Friday, 18 July 22, 2022, they were served eviction notices by Sonoma County Regional Park Rangers, 19 which indicated that they had to relocate by Tuesday, July 26, 2022, at 8:00 a.m., or they could be 20 cited, arrested, or face criminal prosecution. See id. at ¶¶ 19, 25; see also Dkt. No. 6-1, Ex. C at A 21 (“Notice to Vacate”). The Notice to Vacate stated that Plaintiffs “were provided an opportunity 22 for assessment and an opportunity to be placed in adequate shelter by the County IMDT Team 23 and/or other service providers.” See Notice to Vacate. However, Plaintiffs allege that they were 24 not offered alternative shelter, and do not believe Defendants have “genuine plan[s]” to “stor[e] 25 people’s property . . . .” See Dkt. No. 1 at ¶¶ 19, 23–24, 26–27, 32. To the contrary, Plaintiffs 26 allege that regional park rangers “have been destroying people’s property . . . .” Id. at ¶ 24. 27 28 1 Plaintiffs include Denise McCloud, Brian Baran, Kristopher Anderson Francois, Mercedes Juanita Flores, Tim Rucker, Wilbert Ray Fields, and John Clay. Case 4:22-cv-04284-HSG Document 29 Filed 07/29/22 Page 2 of 6 On the morning of July 25, 2022, Plaintiffs filed a complaint, motion for temporary United States District Court Northern District of California 1 2 restraining order, and motion for preliminary injunction enjoining Defendants from removing 3 Plaintiffs from a section of the Joe Rodota Trail. Dkt. No. 1. They also filed a standalone 4 document, styled as a motion for temporary restraining order. Dkt. No. 6. That same afternoon, 5 the Court granted Plaintiffs’ request for a temporary restraining order (“TRO”) pending a hearing 6 on July 27, the earliest available date. Dkt. No. 15. The Court explained that the TRO was 7 necessary “solely to maintain the status quo until the earliest possible hearing on the merits of the 8 TRO request.” See id. at 2. At the July 27 hearing, Defendants indicated that they had filed a 9 brief response to Plaintiffs’ filings that morning. Dkt. No. 17. The Court directed Defendants to 10 file a comprehensive response, including supporting declarations and evidence. See Dkt. No. 23. 11 As of the date of this order, the TRO remains in place. Defendants urge that the TRO should be 12 dissolved, and they should be allowed to resume clearing the remaining individuals from the Joe 13 Rodota Trail so they may reopen the trail to the public as planned. See Dkt. No. 27. Plaintiffs 14 respond that the TRO remains necessary for their protection. See Dkt. No. 28. 15 16 II. LEGAL STANDARD Under Federal Rule of Civil Procedure 65, a temporary restraining order may enjoin 17 conduct pending a hearing on a preliminary injunction. See Fed. R. Civ. P. 65(b). The standard 18 for issuing a temporary restraining order and issuing a preliminary injunction are substantially 19 identical. See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839, n.7 (9th 20 Cir. 2001). A plaintiff seeking preliminary relief must establish: (1) that she is likely to succeed 21 on the merits; (2) that she is likely to suffer irreparable harm in the absence of preliminary relief; 22 (3) that the balance of equities tips in her favor; and (4) that an injunction is in the public interest. 23 See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). Preliminary relief is “an 24 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 25 to such relief.” Id. at 22. A court must find that “a certain threshold showing” is made on each of 26 the four required elements. Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011). Under the 27 Ninth Circuit's sliding scale approach, a preliminary injunction may issue if there are “serious 28 questions going to the merits” if “a hardship balance [also] tips sharply towards the [movant],” 2 Case 4:22-cv-04284-HSG Document 29 Filed 07/29/22 Page 3 of 6 1 and “so long as the [movant] also shows that there is a likelihood of irreparable injury and that the 2 injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th 3 Cir. 2011). 4 III. 5 6 United States District Court Northern District of California 7 DISCUSSION Having considered Defendants’ supplemental opposition to Plaintiffs’ TRO request, Dkt. No. 17, the Court finds that a TRO is no longer warranted under the circumstances. First, Plaintiffs can no longer show that they are likely to suffer irreparable harm absent 8 the TRO. At the July 27 hearing, Plaintiffs Denise McCloud and Brian Baran—the only two 9 Plaintiffs who appeared at the hearing—acknowledged that since the TRO was issued, Defendants 10 had offered them various shelter options. Defendants have similarly confirmed that as of the date 11 of this order, all seven Plaintiffs have been offered and accepted placement in shelters in the form 12 of hotel rooms; trailers at the Sonoma County Fairgrounds; or pallet homes at Los Guillocos 13 Village. See Dkt. No. 27 at 8–9; see also Dkt. No. 27-2 (“Gayowski Decl.”) at ¶¶ 8–12, 16–17; 14 Dkt. No. 27-3 (“Stoelting Decl.”) at ¶¶ 5–6. Defendants explain that they have been able to place 15 over 60 people from the encampment into one of these forms of shelter. See Gayowski Decl. at 16 ¶¶ 11–12. The amount of time a person can stay in these accommodations varies, but ranges from 17 30 days to six months. See id. at ¶ 13. County social workers are also continuing outreach to 18 individuals at these temporary housing locations to assist them in obtaining more permanent 19 housing and access to other social services. See id. at ¶ 14. In short, Plaintiffs are no longer 20 residing in the encampment and have alternative shelter for at least the next 30 days. In light of 21 this development, the Court cannot find that Plaintiffs would suffer any harm if Defendants 22 continued with their plans to clear the encampment. 23 Second, Plaintiffs have not shown a likelihood of success on the merits, or serious 24 questions going to the merits, of their claims. Plaintiffs have asserted several different claims 25 challenging Defendants’ plans to clear the encampment on the Joe Rodota Trail. See Dkt. No. 1 at 26 ¶¶ 35–69. 27 28 Plaintiffs contend, based on the Ninth Circuit’s holding in Martin v. City of Boise, that Defendants’ attempt to remove them from the encampment location on public land is a violation 3 Case 4:22-cv-04284-HSG Document 29 Filed 07/29/22 Page 4 of 6 1 of their Eighth Amendment rights. This appears to be their strongest cause of action. In Martin, 2 the Ninth Circuit held that “the Eighth Amendment’s prohibition on cruel and unusual punishment 3 bars a city from prosecuting people criminally for sleeping outside on public property when those 4 people have no home or other shelter to go to.” 920 F.3d 584, 603 (9th Cir. 2019). The Court 5 concluded that “so long as there is a greater number of homeless individuals in [a jurisdiction] 6 than the number of available beds [in shelters], the jurisdiction cannot prosecute homeless 7 individuals for ‘involuntarily sitting, lying, and sleeping in public.” Id. at 617 (quotation omitted) 8 (alteration in original). In other words, the Ninth Circuit held that the government cannot 9 criminalize homelessness “on the false premise [individuals] had a choice in the matter.” Id. United States District Court Northern District of California 10 Here, Plaintiffs allege that they were told they would be arrested if they did not leave the 11 trail. See Dkt. No. 1 at ¶¶ 19, 25. The Notice to Vacate similarly warned that individuals who did 12 not leave the trail by the deadline could be cited, arrested, or face criminal prosecution. See 13 Notice to Vacate. However, the record developed so far reflects that none of the Plaintiffs were 14 cited or arrested, suggests that Defendants have made adequate shelter options available to all 15 encampment residents, and establishes that in fact all seven Plaintiffs have accepted these 16 temporary placements. The record further indicates that Defendants have been following a 17 protocol for clearing the encampment put in place in a prior case involving the County of Sonoma, 18 and intended to ensure compliance with constitutional requirements. See Vannucci v. County of 19 Sonoma, Case No. 18-cv-01955-VC; see also Dkt. No. Dkt. No. 27-1 (“Myers Decl.”), Ex. A. For 20 example, County social workers reached out to make individual assessments of the needs of the 21 individuals residing on the Joe Rodota Trail and offered shelter placements to each of them before 22 any enforcement action was taken. See, e.g., Gayowski Decl. at ¶¶ 1–14, & Exs. 1–4; Stoelting 23 Decl. at ¶¶ 3–9. The County also provided written notice of the plans to clear the encampment, 24 the removal of property, and individuals’ legal rights and opportunity to relocate. See Stoelting 25 Decl., Exs. A–C. 26 To the extent Plaintiffs are concerned that their possessions will be taken during the 27 clearing and either destroyed or lost, see Dkt. No. 1 at ¶¶ 45–48, Defendants have explained the 28 protocol in place for storing individuals’ property, including how they can retrieve it. See 4 Case 4:22-cv-04284-HSG Document 29 Filed 07/29/22 Page 5 of 6 1 Gayowski Decl. at ¶ 15. The County has contracted with FS Global Solutions to provide personal 2 property storage for a period of 90 days. Id. In addition to informing people in person about how 3 to retrieve their property, the County also will post a post-removal notice where the property is 4 collected with this information. See id.; see also Stoelting Decl., Ex. D. These procedures appear 5 to comply with legal requirements. See Lavan v. City of Los Angeles, 693 F.3d 1022, 1032–33 6 (9th Cir. 2012). Plaintiffs have not explained why they believe they are likely to succeed on any of their United States District Court Northern District of California 7 8 other claims. For example, Plaintiffs challenge Defendants’ actions as a violation of their First 9 Amendment right to free assembly. The Court understands that Plaintiffs have created a sense of 10 community on the trail, but they have not cited any authority supporting their contention that 11 freedom of assembly somehow empowers them to congregate anywhere without restriction. The 12 Court has examined Plaintiffs’ claims and does not believe that they have made a showing of 13 likelihood of success on the merits sufficient to justify extending the TRO. Third, the Court finds that the balance of the equities does not tip in Plaintiffs’ favor. The 14 15 question before the Court is not whether Defendants’ approach is the ideal policy approach. 16 Instead, the Court’s narrow inquiry is whether the Constitution forbids Defendants from 17 implementing a policy that they believe appropriately balances the important individual and 18 community rights implicated by encampments on public land. See Lavan, 693 F.3d at 1033 (“This 19 appeal does not concern the power of the federal courts to constrain municipal governments from 20 addressing the deep and pressing problem of mass homelessness or to otherwise fulfill their 21 obligations to maintain public health and safety.”). The Court sees no compelling basis on the 22 record presented for supplanting Defendants’ judgments regarding the difficult question of how 23 best to balance Plaintiffs’ important legal rights with the rights of the public at large with respect 24 to access and use of the Joe Rodota Trail. This is especially true now that Plaintiffs have been 25 offered and accepted shelter. 26 IV. 27 28 CONCLUSION Accordingly, the temporary restraining order entered on July 25, 2022, is VACATED. The Court understands that Plaintiffs are concerned that at least some of the shelters offered by the 5 Case 4:22-cv-04284-HSG Document 29 Filed 07/29/22 Page 6 of 6 1 County may only be temporary. During the hearing, Plaintiff McCloud, for example, stated that 2 the hotel placements are only for 30 days. And in their filings, Defendants appear to acknowledge 3 that the hotel vouchers “are good for up to 30 days.” See Dkt. No. Gayowski Decl. at ¶ 13. 4 5 request for a preliminary injunction before the expiration of this 30 days. At this point, the Court 6 does not believe further briefing is necessary. Because the Court understands that Plaintiffs may 7 have some logistical difficulty appearing in person, the hearing will take place telephonically. All 8 counsel and parties shall use the following dial-in information to access the call: 9 United States District Court Northern District of California The Court therefore SETS a hearing on August 18, 2022, at 2:00 p.m. to discuss Plaintiffs’ Dial-In: 888-808-6929; 10 Passcode: 6064255 11 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where 12 at all possible, parties shall use landlines. The Court cautions that because Plaintiffs are not 13 represented by counsel, this is not a class action and they may only pursue this case individually. 14 See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (holding that pro se 15 litigant may not appear as an attorney for others). Therefore, each Plaintiff is responsible for 16 pursuing his or her own case, and appearing at the August hearing date. 17 To ensure Plaintiffs receive this order as quickly as practicable, the Clerk is DIRECTED to 18 serve this order on the Plaintiffs by email at bbarnardknowledge@gmail.com; 19 kandersonfrancois@gmail.com; and timr9725@gmail.com. 20 21 22 23 IT IS SO ORDERED. Dated: July 29, 2022 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 24 25 26 27 28 6

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