Acosta et al v. City of Salinas

Filing 91

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER. Re: Dkt. No. 72 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 4/13/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RITA ACOSTA, et al.,

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Plaintiffs,
v.

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United States District Court
Northern District of California

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CITY OF SALINAS,
Defendant.

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Case No. 15-cv-05415 NC
ORDER DENYING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER
Re: Dkt. No. 72

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In this putative class action, Plaintiffs move for a temporary restraining order to

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enjoin the City of Salinas from enforcing City Ordinance 2567 and Resolution 20908

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authorizing the City to conduct cleanup sweeps of a homeless encampment in its

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Chinatown neighborhood. The Court DENIES Plaintiffs’ motion for a temporary

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restraining order with prejudice because Plaintiffs have not shown a threat of immediate

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and irreparable injury to themselves in the absence of an injunction.

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I.

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FACTUAL HISTORY
This motion is about Ordinance 2567, which empowers the City of Salinas to

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conduct a cleanup of its Chinatown neighborhood pursuant to the administrative

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procedures outlined in Resolution 20908 on March 29, 2016. Ordinance 2567 is a

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successor to Ordinance 2564, which was the subject of Plaintiffs’ complaint and contained

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many of the same provisions and regulations. The City has attached Ordinance 2567 at

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docket number 36-1 and Resolution 20908 at docket number 36-2. Ordinance 2567 was

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passed by the Salinas City Counsel with the “intent of preventing the misappropriation of

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City property for personal use and the proliferation of encampments on public property
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that have a significant adverse effect on public health, safety, and welfare and impede or

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entirely obstruct access by emergency responders when responding to emergencies.” Dkt.

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No. 36-1 at 2. Ordinance 2567 states that “[n]o person shall fail to remove personal

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property stored on City Property by the date of scheduled removal provided on the written

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notice posted in accordance with the Administrative Procedure” in Resolution 20908. Dkt.

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No. 36-1 at 6. It authorizes the City to store or dispose of personal property which is not

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removed by the date of the scheduled removal posted in the notice. Id.

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Resolution 20908’s Administrative Procedure “requires outreach to affected
individuals, referral of individuals to supportive services, reasonable advance notice to
affected individuals of the deadlines by which they are to remove their personal property

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Northern District of California

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from public property, the City’s storage of personal property that has been removed by the

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City-established deadline, and an exception to permit the temporary use of tents, sleeping

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bags, and the like overnight between 6:00 p.m. and 6:00 a.m. the next morning.” Dkt. No.

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36-2 at 5.

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The “reasonable advance notice” includes a requirement that the City post notices
with information, stated in both English and Spanish, including:
1. The title “Notice of Clean-Up;”
2. The posting date;
3. A general description of the personal property to be removed
and the location from which the personal property will be
removed;
4. A statement that the personal property on the job site is
currently being stored in violation of the Salinas City Code;
5. The location where the removed personal property will be
stored, if not removed by the deadline listed in the notice;
6. Dates of scheduled removal of personal property (can be a
range of dates);
7. Starting time of the first day of the cleanup;
8. A statement that personal property found at the site and not
removed by its owner will be stored by the City for 90-days
and that if such personal property is not recovered within that
period it will be deemed abandoned and that the personal
property will be destroyed.
9. Storage bags will be provided prior to the removal or
personal property for storage upon request; and
10. Homeless Service Provider Hotline to call (to be
considered by the County and Coalition of Homeless Service
Providers- if or when this becomes available).
Dkt. No. 36-2 at 8. These notices must be posted at least fifteen days prior to any
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proposed cleanup, “absent circumstances at the site requiring shorter notice or where the

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individual has previously received notice under this procedure and had personal property

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removed and has reestablished the encampment at the same or other location.” Id.

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In addition to its notice requirement, the Administrative Procedure in Resolution

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20908 requires the City to provide “bags and tags” both before and during the cleanup.

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Pre-cleanup, “[b]ags and tags will be handed out to individuals present at the site to assist

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them with the storage of their personal property.” Dkt. No. 36-2 at 8. Then, on the day of

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the cleanup, “[o]nce again, bags and tags will be provided to individuals to help them sort

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and remove their personal items in the event they remain on-site. They are also able to
contact the Homeless Services Hotline or City staff on-site who will be available to answer

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questions about the cleanup.” Id.

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Plaintiffs are “seven homeless individuals living in the City of Salinas” who have

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filed a Complaint alleging that their personal property has been seized and destroyed or

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will be seized and destroyed by the City in violation of their constitutional rights. Dkt. No.

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1 at ¶ 11. The named Plaintiffs are Rita Acosta, Van Gresham, Cherie Hernandez, William

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Silas, Bessie Taylor, Joseph Blains, and John Lerma. Id. at ¶¶ 16–22. Plaintiffs have not

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received class certification.

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Plaintiffs allege that, “[o]ver the past two years, their personal possessions [have

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been] confiscated and presumably destroyed by [City] employees . . . as part of an ongoing

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practice targeting the homeless in the city.” Id. Plaintiffs allege that the implementation

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of Ordinance 2567 and Resolution 20908 “only augments the danger that the personal

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property of the homeless residents of the City of Salinas will [be] seized” in violation of

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federal and state law. Id. at ¶ 14.

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Therefore, Plaintiffs move “for entry of a Temporary Restraining Order against the

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enforcement of City of Salinas Ordinance No. 2567 . . . [to] enjoin the City from otherwise

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seizing, storing, discarding or destroying property belonging to homeless persons and

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forcibly dispersing the residents of this encampment into the streets where they are now

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suffering lack of access to food, medical care, their possessions and shelter all of which
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they had ready access to in the Chinatown area.” Dkt. No. 72 at 3.
The City conducted a cleanup sweep of the Chinatown neighborhood on the

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morning of March 29, 2016. Dkt. No. 82 at 7. Neither Plaintiffs nor Defendant have

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stated that there are more cleanup sweeps planned for the area, but Ordinance 2567 and

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Resolution 20908 permit the City to continue planning and executing sweeps as needed to

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clear personal property that is being stored on city property. See Dkt. No. 36-1.

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II.

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PROCEDURAL HISTORY
This is the fourth motion by Plaintiffs to enjoin the City from conducting a cleanup

sweep of Chinatown.
Plaintiffs’ complaint, filed on November 24, 2015, included an ex parte application

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Northern District of California

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for a temporary restraining order. Dkt. No. 1-12. The ex parte application sought to “bar

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the City of Salinas . . . from seizing, storing and/or immediately and/or subsequently

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destroying the personal property including so-called ‘bulky items’ belonging to homeless

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individuals living without shelter in the City of Salinas” under Ordinance 2564. Id. at 8.

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On November 25, 2015, Judge Koh denied Plaintiffs’ ex parte application because it

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“fail[ed] to comply with the requirements of Federal Rule of Civil Procedure 65(b)(1) and

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Civil Local Rule 5-1.” Dkt. No. 5 at 2.

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Plaintiffs then moved for a preliminary injunction against Ordinance 2564 on

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grounds of facial invalidity on December 22, 2015. Judge Koh denied the motion as moot

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in light of the City’s action replacing Ordinance 2564 with Ordinance 2567, which no

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longer contained the provisions that were challenged as unconstitutional in Plaintiffs’

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motion. Dkt. No. 45 at 6.

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On March 3, 2016, Judge Koh held a case management conference with the parties

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and set an abridged briefing schedule for Plaintiffs to file an as-applied challenge to

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Ordinance 2567 before the City’s scheduled implementation of Ordinance 2567 and

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Resolution 20908 on March 23, 2016. Dkt. No. 53.

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The case was reassigned to this Court on March 9, 2016. 1 Plaintiffs filed a motion

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for a temporary restraining order, which this Court denied on March 16, 2016, for failure

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to allege an as-applied challenge to Ordinance 2567 as required by Judge Koh’s case

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management order. Dkt. No. 70. This Court instructed Plaintiffs to confer with the City

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before filing any additional motions challenging Ordinance 2567.
Currently before the Court is Plaintiffs’ fourth ex parte motion to enjoin the City

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from conducting a Chinatown sweep, which Plaintiffs filed on March 25, 2016. Dkt. No.

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72. Finding this matter suitable for decision without oral argument under Civil Local Rule

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7-1(b), the Court vacated the hearing set for March 30, 2016.

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III. LEGAL STANDARD
A.

United States District Court
Northern District of California

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Temporary Restraining Order

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Under Federal Rule of Civil Procedure 65, a district court may issue a temporary

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restraining order to prevent “immediate and irreparable injury, loss, or damage [] to the

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movant.” Fed. R. Civ. P. 65(b), (d).
The standard for issuing a temporary restraining order is identical to the standard

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for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240

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F.3d 832, 839 n.7 (9th Cir. 2001). Plaintiffs seeking a temporary restraining order must

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establish:
(1) a likelihood of success on the merits;
(2) a likelihood of irreparable harm in the absence of the
restraining order;
(3) that the balance of equities tips in favor of issuing the
restraining order; and,
(4) that issuing the restraining order is in the public interest.

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Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); DISH Network Corp. v.

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F.C.C., 653 F.3d 771, 776 (9th Cir. 2011). The party seeking the injunction bears the

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burden of proving the requisite elements. Klein v. City of San Clemente, 584 F.3d 1196,

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1201 (9th Cir. 2009).

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Both Plaintiffs and the City have consented to the jurisdiction of a magistrate judge under
28 U.S.C. § 636(c). Dkt. Nos. 64, 65.
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B.

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As-Applied Constitutional Challenge

“An as applied challenge may seek (1) relief from a specific application of a facially
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valid statute or ordinance to an individual or class of individuals who are under allegedly
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impermissible present restraint or disability as a result of the manner or circumstances in
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which the statute or ordinance has been applied, or (2) an injunction against future
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application of the statute or ordinance in the allegedly impermissible manner it is shown to
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have been applied in the past. It contemplates analysis of the facts of a particular case or
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cases to determine the circumstances in which the statute or ordinance has been applied
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and to consider whether in those particular circumstances the application deprived the
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individual to whom it was applied of a protected right.” Tobe v. City of Santa Ana, 9
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Cal.4th 1069, 1084 (1995).
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Northern District of California

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IV. EX PARTE APPLICATION

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Civil Local Rule 7-10 states that “a party may file an ex parte motion . . . only if a
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statute, Federal Rule, local rule or Standing Order authorizes the filing of an ex parte
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motion in the circumstances and the party has complied with the applicable provisions
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allowing the party to approach the Court on an ex parte basis.” Civil L.R. 7-10. In
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addition, any ex parte motion “must include a citation to the statute, rule or order which
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permits the use of an ex parte motion to obtain the relief sought.” Id.
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Plaintiffs’ current ex parte motion fails to comply with Civil Local Rule 7-10. 2 The

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City at docket 82 has responded to Plaintiffs’ motion and has therefore had a chance to be
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heard on the motion. However, the City alleges that Plaintiffs did not give the City any
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prior notice before filing the motion. Dkt. No. 82 at 3. Judge Koh has denied multiple
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requests to file documents in this case because Plaintiffs failed to comply with Civil Local
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Rule 7-10. See Dkt. No. 59. When denying a motion for administrative relief because it
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failed to comply with Local Rule 7-10, Judge Koh stated, “During the March 3, 2016 case
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It also fails to comply with Local Civil Rule 65-1, which requires that an ex parte motion
for a temporary restraining order be accompanied by a separate memorandum of points
and authorities in support of the motion.
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management conference, the Court emphasized that too many documents were being filed

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on an ex parte basis in this action, and that, given the gravity of the issues presented, the

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Court would like to hear from both parties going forward. The parties agreed with the

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Court’s assessment. Accordingly, the Court again emphasizes that ex parte filings in this

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action are strongly discouraged.” Id. (internal citations omitted).
Because the City has responded to Plaintiffs’ motion, it is not truly ex parte as both

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parties have had the opportunity to be heard. Granny Goose Inc. v. Teamsters, 415 U.S.

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423, 435 (1974) (noting Rule 65’s “stringent” requirements for granting a temporary

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restraining order because there has not been “reasonable notice and an opportunity to be
heard [for] both sides of a dispute.”) However, Plaintiffs’ failure to provide the City with

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Northern District of California

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notice of the motion violates the Court’s previous order. Plaintiffs are warned that future

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ex parte filings will not be considered if they do not comply with the Local Rules and the

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Court’s orders.

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V.

DENIAL OF TEMPORARY RESTRAINING ORDER
C.

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Likelihood of Success On The Merits

To prevail on their motion, Plaintiffs must make a showing that the application of

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Ordinance 2567 as to them in specified circumstances violates the United States

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Constitution. Tobe, 9 Cal.4th at 1084. To do so, Plaintiffs must provide specific facts to

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show how the City’s implementation of Ordinance 2567 has denied them a protected right.

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Id.

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Other plaintiffs have succeeded in as-applied challenges to city ordinances where

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they showed that the city failed to follow the procedural safeguards in the ordinance or

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failed to provide sufficient notice to the plaintiffs before seizing property. For example, in

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Russell v. City and County of Honolulu, No. 13-cv-00475 LEK (RLP), 2013 WL 6222714,

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*6-*7, (D. Haw. Nov. 29, 2013), the district court denied a facial challenge to a Sidewalk

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Nuisance Ordinance but found that the plaintiffs had demonstrated a likelihood of success

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on the merits of their “as-applied” challenge and issued a preliminary injunction on that

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basis. Id. at *14-*18. The court was concerned that the City and County of Honolulu had
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not complied with the procedures set forth in the Sidewalk Nuisance Ordinance and had

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not provided sufficient notice to individuals whose property was seized. Id. at *15.
In Russell, the City and County had provided Summary Removal Notices to the

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plaintiffs but the court found that the “Summary Removal Notices that [the plaintiffs]

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received after the removal of their property . . . did not inform them that they could reclaim

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their necessities without paying the fee and without a hearing, nor did the notices inform

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them that they could seek a waiver of the fee from the hearings officer if the fee was

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onerous for them.” Id. at *14.
The court concluded that the City’s enforcement of the Sidewalk Nuisance

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Ordinance was likely unconstitutional as it was applied to the plaintiffs because of the

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deficiencies in the Summary Removal Notices provided. Id. at *15.
In contrast, the temporary application presented here is more like the one denied in

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Martin v. City & Cty. of Honolulu, No. 15-cv-00363 HG-KSC, 2015 WL 5826822, at *8

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(D. Haw. Oct. 1, 2015). There, the district court found that homeless plaintiffs had not

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presented enough information to justify the court granting a temporary restraining order.

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Martin, No. 15-cv-00363 HG-KSC, 2015 WL 5826822 at *8. Here, as in Martin,

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Plaintiffs have not shown that they have been deprived of their property by the City

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without notice or procedure.

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In fact, Plaintiffs’ submitted declarations are less substantive than the request

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presented in Martin; here, no declarant states that his or her own property has been seized

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or destroyed, or that the declarant saw evidence of harm to someone who is a party to the

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case.

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Instead, Plaintiffs’ motion makes broad statements about harm to third parties. It

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alleges that “harm includes the dispersal of seriously mentally ill persons—including

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persons at risk for suicide who had access to crisis intervention treatment by professionals

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in Chinatown—such that their treaters cannot locate these clients at all. This harm

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includes separation of homeless persons from sources of food previously provided . . . to

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homeless persons in Chinatown.” Dkt. No. 72 at 2 (internal citations omitted). Plaintiffs’
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motion goes on to describe the City’s alleged “seizure of vital items of personal property

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from homeless persons who today were forced to dump necessities including blankets,

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bedding, shoes and clothing into 96-gallon garbage cans that were then carted away by the

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City.” Id.

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However, the declarations attached to the motion fail to show imminent harm to any
party in the case. Only one of the declarations comes from a plaintiff in the case. Rita

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Acosta’s declaration details her observations of the cleanup efforts on March 24, 2016.

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Dkt. No. 73 at 1. She also disputes the need for the cleanup, stating that “[c]ontrary to

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what the City said, the streets were never impassible, and the sidewalks in front of the

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handful of open establishments that are there to serve the homeless . . . were clear and

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unobstructed.” Id. at 2. Her dispute with Ordinance 2567 on its face is not applicable to

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an as-applied challenge.

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Moreover, the declaration of Don Reynolds in opposition to Plaintiffs’ ex parte

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application states as follows: “Rita Acosta lives in a shelter and does not live in a tent or

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other structure in the Chinatown area and is not otherwise living on the street or the

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sidewalk. Rita Acosta is an employee of the shelter in which she resides.” Dkt. No. 86 at

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2. Acosta’s declaration does not state any involvement in the sweep or contact with any

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City official, or show that any of her personal possessions were seized or destroyed in the

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sweep. Therefore, her declaration has not presented facts showing that she has or will

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suffer injury by implementation of Ordinance 2567.

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Similarly, the other attached declarations do not satisfy Rule 65’s requirement to

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show that any plaintiff has suffered an irreparable injury as a result of an unconstitutional

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application of Ordinance 2567. Tony Castillo, another declarant, is a business owner who

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resides in Salinas and provides food to homeless persons living in the Chinatown area.

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Dkt. No. 74. Castillo is not homeless, does not reside in Chinatown, and would not be

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subject to the ordinance. Id. at 1. Castillo states that “[s]ince the City announced

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implementation of the plan to bulldoze the Chinatown camp two weeks ago, the number of

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homeless persons I am able to feed has dropped from approximately 105 to about 75. I
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learned that many of those who were previously able to obtain food from me in Chinatown

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fled the area fearful of losing their tents, shelter and possessions.” Id. at 2. Castillo

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believes that “[w]ith the destruction of this camp and the scattering of homeless persons

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onto the streets, underpasses and other areas across the city, it will be extremely difficult if

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not impossible for me to find and feed the men, women and children I have been able to

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assist in Chinatown.” Id. However, this declaration does not describe the unlawful seizure

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of any property owned by a named plaintiff or other homeless person. It does not state that

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the City did not provide notice; in fact, Castillo’s declaration describes homeless

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individuals reacting to the notices posted in the weeks prior to the cleanup. It also does not
describe City officials seizing and destroying personal property without providing “bags

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and tags” as required by Resolution 20908. See Dkt. No. 36-2 at 8.

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Likewise, Plaintiffs’ attorney Anthony Prince’s declaration fails to demonstrate an

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injury in fact to any plaintiff sufficient for the issuance of a temporary restraining order.

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Dkt. No. 76. The majority of Prince’s declaration consists of statements from Dr. Paul

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Wright, who filed a separate declaration stating the facts with personal knowledge. Id. at

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1-2. The remainder of Prince’s declaration consists of other statements alleged to have

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been made by Jill Allen, a homeless services provider in the Chinatown area, and a

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description of Prince’s efforts to communicate with Defendants about Plaintiffs’ intent to

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file the instant motion. Id. at 2-3.

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In addition to his declaration stating his efforts to communicate with Defendants,

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Prince attaches at docket 80 an image of a message stating, “This is to inform you that

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today Plaintiffs will be filing an Ex Parte Application for a Temporary Restraining Order

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to halt the Chinatown sweeps.” Dkt. No. 80 at 1. However, the message is not dated and it

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is not clear that the message is an email or that it was received by the City. The City states

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that it did not receive notice of Plaintiffs’ motion before it was filed. See Dkt. No. 82 at 2.

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The declaration by Dr. Paul Wright contains no facts or evidence to demonstrate

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any impact on any of the named plaintiffs. Dkt. No. 81. Dr. Wright describes his inability

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to locate patients in the weeks leading up to the sweeps and his concerns regarding
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unidentified individuals’ psychiatric condition. The harm alleged in Dr. Wright’s

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declaration is a general fear of dispersal of mentally ill persons. Because he is not

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describing harm to any plaintiff, his declaration does not provide grounds to issue a

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temporary restraining order.

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The declarations attached to Plaintiffs’ reply to the City’s response to the motion
are equally unpersuasive. Miriam Smith’s declaration states that she is a “longtime

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community activist who has provided support and assistance to the homeless in Salinas for

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many years.” Dkt. No. 88-1 at 1. Smith states that she was present during the “recent

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destruction of the Chinatown homeless encampment” and that the City’s declarations

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describing the sweep are untrue. Id. at 1-2. Smith states that she heard police yelling

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Northern District of California

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“You have two minutes to get out,” and observed “most of the homeless” unable to store

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“much of anything in the 96-gallon garbage cans that the city provided.” Id. at 2. She also

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states that homeless individuals told her that most of their possessions were destroyed in

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the sweep and that they were told that they could not store possessions such as tents and

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small pieces of furniture. Id. Smith states that a woman named Antonia Rodriguez “had a

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mental breakdown and was taken to Natividad Hospital when the City seized and

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destroyed her possessions.” Id.

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However, Smith’s declaration does not state that she observed City workers failing

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to hand out the 96-gallon containers for people to put their personal possessions in, or a

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sweep with no prior notice in violation of the terms of Resolution 20908. As such, her

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declaration does not provide grounds for an as-applied challenge because it does not show

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that the City’s implementation violated the administrative protections of Ordinance 2567

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and Resolution 20908. Martin, No. 15-cv-00363 HG-KSC, 2015 WL 5826822 at *8.

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Jessica Marie Medina states in her declaration that she is a part time worker at “Ord

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[sic] Commissary in Seaside, C.A.” who volunteers at the Salinas foodbank. Dkt. No. 89

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at 1. However, she does not declare that she is homeless. She does not identify any ties

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with any of the named plaintiffs or describe any harm to them. The only person whose

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name she mentions in her declaration is someone named Diane whose recreational vehicle,
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in which Diane lives, was towed. Ordinance 2567 does not apply to persons living in their

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recreational vehicles. Medina states that she saw City officials handing out storage bins

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but that they ran out of bins before all the homeless individuals received two bins to put

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their possessions in. Id. at 4. However, she does not identify any specific person who did

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not get the allotted storage bins or describe misconduct by City officials that would

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provide grounds for an as-applied challenge on the basis that the City was not following

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the notice requirements of Ordinance 2567 and Resolution 20908.

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In fact, the City officials’ declarations submitted with its response to the motion
establish that the City has enforced the ordinance consistent with the procedural
protections built into Ordinance 2567 and Resolution 20908. Dkt. No. 84. This is unlike

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Northern District of California

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Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012) because there, the City of Los

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Angeles did not dispute the plaintiffs’ allegations and admitted that it had a policy and

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practice of seizing and destroying homeless persons’ possessions when they had not been

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abandoned. Lavan, 693 F.3d at 1025. The City of Los Angeles also conceded that it did

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not provide any notice or an opportunity to be heard to the plaintiffs either before or after

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seizing their property. Id. at 1032.

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In contrast, the City here states that it has provided notice and followed the

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procedural safeguards in Resolution 20908. Greg Knowles, the Assistant Redevelopment

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Project Manager for the City, has submitted a declaration attesting to the process by which

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the City conducted the cleanup. Dkt. No. 86 at 2. Knowles states that City work crews

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and crews from the City’s contractor, Smith & Enright, provided 96-gallon storage bins to

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individuals to store their personal property and that no one was charged for the storage

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bins. Id. at 2.

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Knowles declares that “City workers and Smith & Enright crews went tent-by-tent

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to ensure no individuals were present in the tents before the area was cleaned up and to

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ensure that the individuals had removed all their personal property they wanted to keep and

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to have the City store and ensure that before the cleanup occurred the individual indicated

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their intent to abandon whatever remained at their campsite.” Id. He goes on, “[i]n those
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circumstances where no individual was identified with a particular campsite, the personal

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property at that campsite was removed by Smith & Enright and stored consistent with the

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ordinance and Administrative Procedure.” Id.

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In addition to the storage bins provided by the City, “personal property items

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removed by the City and too large to be placed into a storage bin are being stored at 312

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East Alisal Street, property under the control of the City.” Id. Finally, the storage bins

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“and other property are being stored in a covered area and are behind a locked gate to

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prevent their being stolen or lost.” Id. The City therefore has presented evidence that it

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has observed the procedural requirements of Ordinance 2567 and the Administrative
Procedure in Resolution 20908, most notably the notice requirement and the requirement

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to provide individuals with “bags and tags” to store their personal property so it is not

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destroyed. See Dkt. No. 36-2 at 8.

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Therefore, the Court finds that Plaintiffs have not satisfied their burden to show a
high likelihood of success on the merits.
D.

Likelihood of Irreparable Harm

Plaintiffs seeking a temporary restraining order must demonstrate that irreparable

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injury is likely in the absence of a restraining order. Alliance for the Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

19

Plaintiffs have not established a likelihood of irreparable harm in the absence of a

20

temporary restraining order. The City has represented that it complies with the procedures

21

set forth in the Ordinance and Administrative Procedure and does not seize and

22

immediately destroy personal property. Dkt. No. 84. For the same reasons that the

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Plaintiffs’ declarations fail to show a high likelihood of success on the merits, they fail to

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demonstrate the threat of personal irreparable injury.

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26

E.

Balance of Equities

“To determine which way the balance of the hardships tips, a court must identify

27

the possible harm caused by the preliminary injunction against the possibility of the harm

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caused by not issuing it.” Univ. of Hawai’i Prof’l Assembly v. Cayetano, 183 F.3d 1096,
Case No. 15-cv-05415 NC

13

1

1108 (9th Cir. 1999) (citing Los Angeles Memorial Coliseum Comm’n v. NFL, 634 F.2d

2

1197, 1203 (9th Cir. 1980)). The Court recognizes that Plaintiffs have a compelling

3

ownership interest in their personal property, especially “given the vulnerability of []

4

homeless residents: For many of us, the loss of our personal effects may pose a minor

5

inconvenience. However, the loss can be devastating for the homeless.” Lavan, 693 F.3d

6

at 1032 (citing Pottinger v. City of Miami, 810 F. Supp. 1551, 1559 (S.D. Fla. 1992))

7

(internal citations and quotations omitted).

8
9

However, Ordinance 2567 and Resolution 20908 are not confronting a facial
challenge. The City has presented declarations stating that it has followed Resolution
20908’s procedures requiring notice and “bags and tags” provided for storage. As such,

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United States District Court
Northern District of California

10

the balance of equities weighs in favor of denial of the temporary restraining order because

12

the City of Salinas has an interest in enforcing its ordinances in order to prevent health and

13

safety hazards and the blockage of public spaces and thoroughfares. Martin, No. CV 15-

14

00363 HG-KSC, 2015 WL 5826822, at *8 (balance of equities weighed in favor of

15

denying temporary restraining order because if granted, temporary restraining order would

16

have prevented City of Honolulu’s ability to enforce its own ordinances, leading to

17

obstructed sidewalks and public spaces as well as potential health and safety hazards).

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19
20
21

Therefore, the balance of equities here, while involving important rights on both
sides, weighs against Plaintiffs’ proposed temporary restraining order.
F.

Public Interest

The Supreme Court has made clear the “the importance of assessing . . . the public

22

interest in determining whether to grant a preliminary injunction” or temporary restraining

23

order. Winter, 555 U.S. at 26. Here, the City proffers the public interest in having safe

24

and unobstructed public spaces and thoroughfares, as well as preventing health and safety

25

hazards to the general public as well as the homeless individuals living in the Chinatown

26

encampment. Dkt. Nos. 17, 82. Plaintiffs do not explicitly address the public interest in

27

their current motion, but make statements about the general societal harms threatened by

28

the cleanup, including the stigmatization of homelessness. Plaintiffs also state that the
Case No. 15-cv-05415 NC

14

1

harms facing homeless persons in Salinas after the cleanup, including lack of access to

2

food, medical care, their possessions and shelter, are “not conditions endemic to the status

3

of being homeless: these are state-created dangers.” Dkt. No. 72 at 3.
Both stated public interests are weighty. However, because Plaintiffs have not

4
5

shown that, as-applied, Ordinance 2567 and Resolution 20908 abrogate their constitutional

6

rights, this factor tips in favor of denying the temporary restraining order.

7

VI. CASE MANAGEMENT

8

A.

Amended Complaint
Plaintiffs were instructed to provide to the City a proposed amended complaint by

10

April 7, 2016. Dkt. 53 at 2. The City has until April 14, 2016, to respond to Plaintiffs as

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United States District Court
Northern District of California

9

to whether Defendant will stipulate to the filing of Plaintiffs’ proposed amended

12

complaint. If Defendant declines to so stipulate, Plaintiffs must file a motion for leave to

13

amend the complaint by April 21, 2016. However, in its response to Plaintiffs’ motion for

14

a temporary restraining order, the City stated that Plaintiffs had not provided a proposed

15

amended complaint as of March 29, 2016. Dkt. No. 82 at 3.

16

Plaintiffs have until April 21, 2016, to file a motion for leave to amend the

17

complaint, but they are warned that they must either show that they provided the City a

18

proposed amended complaint by April 7, 2016, or show good cause to amend given their

19

apparent failure to follow the procedure for the parties to agree on an amended complaint.

20

VII. CONCLUSION

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For the reasons stated above, Plaintiffs’ request for a temporary restraining order to

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enjoin the City from conducting the Chinatown cleanup sweep under Ordinance 2567 and

23

Resolution 20908 on March 29, 2016, is DENIED with prejudice.

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25

IT IS SO ORDERED.

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Dated: April 13, 2016

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Case No. 15-cv-05415 NC

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
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