Wendt v. Denison, City of et al

Filing 51

ORDER denying 19 Motion for Preliminary Injunction. Signed by Chief Judge Leonard T Strand on 6/8/17. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BRADLEY WENDT,
No. C16-4130-LTS

Plaintiff,

ORDER ON MOTION FOR
PRELIMINARY INJUNCTION

vs.
CITY OF DENISON, IOWA,
Defendants.

____________________
I.

INTRODUCTION

This case is before me on plaintiff Bradley Wendt’s motion (Doc. No. 19) for
preliminary injunction.

Defendant, the City of Denison, Iowa (the City), filed a

resistance (Doc. No. 27). Wendt filed a reply (Doc. No. 30) and the City filed a reply
to Wendt’s reply (Doc. No. 32). On May 3 and 4, 2017, I held an evidentiary hearing.
The motion is now fully submitted and ready for decision.
II.

PROCEDURAL HISTORY

Wendt commenced this action on November 7, 2016, by filing a two-count petition
in the Iowa District Court for Crawford County. Doc. No. 4. Wendt alleges (1)
retaliation in violation of Iowa Code § 70A.29 (the Whistleblower Act) and (2) retaliation
in violation of the First Amendment to the United States Constitution.1 On November
23, 2016, the City removed the action to this court on the basis of federal question
jurisdiction.

Doc. No. 3.

Wendt filed his motion for preliminary injunction on

February 15, 2017.
1

The petition names a second defendant, John Emswiler. Wendt has dismissed Emswiler from
this action without prejudice. Doc. No. 23.

III.

FACTUAL BACKGROUND

Wendt, a former police officer for the City, contends that he was retaliated against
for actions protected by the Whistleblower Act and for exercising his First Amendment
rights.
The Cast. Wendt was a police officer for the City from December 29, 2008,
until his discharge on February 14, 2017. Emswiler was the City’s Deputy Chief of
Police prior to becoming Chief of Police in April 2015. He served as Chief until June
23, 2016, when he resigned. Dan Schaffer became Chief of Police in September 2016.
Brad Bonner was the City’s Mayor from January 2014 until December 2015 and
continued to serve on the City Council after his term as Mayor ended. Dan Leinen
succeeded Bonner as Mayor effective January 1, 2016.
Ray Ohl worked as a police officer for the City but was discharged before Wendt.
Tony Trejo and Douglas Peters are both Sergeants with the City’s police department.
The Claims. Count 1 alleges retaliation for (1) Wendt’s report to the Iowa
Ombudsman’s Office about Emswiler allegedly illegally entering a home (the Entry) and
(2) Wendt’s disclosures to the City Council and Mayor about a directory of inappropriate
images (the Directory) that Emswiler maintained on a police department computer.
Count 2 alleges retaliation for Wendt’s exercise of his First Amendment rights.
The Evidentiary Hearing.

During the evidentiary hearing, Wendt, Leinen,

Schaffer, Bradley, Emswiler, Bonner, Trejo and Peters testified.

Wendt submitted

Exhibits 1 through 65, including a recording of a Denison Police Department meeting
that was played during the hearing. The City submitted Exhibits A through TT. I will
discuss relevant testimony and exhibits as it pertains to the analysis below.
The Entry. In September 2015, Emswiler and Ohl were executing an arrest
warrant at a residence in Denison. After no one answered the door, Emswiler used a
knife to pry open a window and unlock the door in order to enter the apartment. Ohl
2

informed Wendt about the incident and sent him a video of the event. The video was
sent over Snapchat, which deletes the video after it is viewed. Ohl told Wendt that
Emswiler had stated: “It’s not breaking and entering if you don’t break anything.”
Wendt, allegedly believing that the Entry was illegal, reported it to the Iowa
Ombudsman’s Office.
Charges Against Wendt. On December 8, 2015, Wendt was cited by the Iowa
Department of Natural Resources (DNR) with several infractions, the most serious being
an aggravated misdemeanor charge of intentionally discharging a firearm in a reckless
manner causing property damage in violation of Iowa Code § 724.30(3). Initially,
Wendt was placed on paid administrative leave pending the outcome of the charges and
pending an internal investigation conducted by Emswiler. Exhibit 32. However, after
Emswiler reviewed the matter and determined that the charges were not baseless, Wendt
was placed on unpaid administrative leave.
The City now maintains that the decision to place Wendt on unpaid leave was
based on the fact that he was facing a weapons-related charge. However, the first email
message concerning that decision did not mention this as the reason. In a message from
Emswiler to then-Mayor Bonner, Emswiler stated that he could not “have [Wendt]
arresting people on Simple and Serious Misdemeanors and throwing them in jail while
he is under indictment for an aggravated misdemeanor.” Exhibit 32. Similarly, Wendt
contends he was told that he was placed on unpaid status because he was charged with an
aggravated misdemeanor, not because the charge involved a firearm. However, Bonner
testified that Wendt’s unpaid status was due to the fact that he faced a firearms charge.
Leinen testified that when he became Mayor, Bonner told him Wendt was on unpaid
administrative leave because he had a firearms charge pending.
The Directory. In late 2015, one or more police department employees located
the Directory on the police department’s shared computer server. The Directory was
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accessible by all police department employees and contained various images and
photographs with text (memes), with some being of an offensive racial or sexual nature.
A review of the Directory revealed that it was maintained by Emswiler. Indeed, it turns
out that the Directory was stored on Emswiler’s own work computer, accessible only to
him, but had somehow been copied to the shared server as well. Once the Directory
was discovered on the shared server, it was copied by someone who then provided at
least some portions of it to Wendt while Wendt was on administrative leave.
On December 18, 2015, Emswiler directed an email message to all police
department staff in which he stated that he knew his Directory had been accessed and
copied. Emswiler further stated that he knew who had accessed the Directory but would
give those employees an opportunity to “come clean.” Further, Emswiler stated that if
they did not come forward, it would show “who has morals and ethics and who probably
needs to go elsewhere.” He stated that if they came to see him no action would be taken,
but failing to do so “would only hurt [their] career.” Exhibit FF.
On January 5, 2016, Wendt contacted Bonner, who was acting as Mayor pro tem
while Leinen was out of town, to report that he had information about images Emswiler
stored on police department computer equipment. After Bonner asked to see the images
at issue, Wendt provided Bonner’s assistant with a USB drive containing a PowerPoint
presentation that included approximately 50 images from the Directory. In response,
Bonner asked Wendt to provide him with whatever additional information he had.
Bonner was concerned that the Directory might contain confidential information
regarding police department investigations. While Wendt told Bonner that he would
attempt to obtain the rest of the Directory, he was unable to do so.
Emswiler’s Fate. Emswiler ultimately admitted that the Directory was his and
received a letter of reprimand from Leinen based on his use of police department
computers to store inappropriate materials. Exhibit QQ. Wendt, however, believed
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that Emswiler should be fired. After various communications with Bonner and the City
Council did not achieve that result, Wendt went to the media. For example, on March
4, 2016, Wendt sent an email message to a reporter for the Des Moines Register in which
he addressed issues relating to both the Entry and the Directory. Exhibit HH. Wendt’s
efforts resulted in media coverage of the Directory which, in turn, sparked public protests
against Emswiler. See, e.g., Exhibit 65.
In addition, Wendt was openly involved in a petition drive seeking Emswiler’s
removal from office. Among other things, Wendt displayed a copy of the petition at his
place of business.2 Ultimately, about 420 individuals signed the petition (Denison’s
population is approximately 8,000). Moreover, public disclosure of the Directory led to
greater attendance at City Council meetings.
On March 23, 2016, Emswiler sent an email message to Leinen requesting copies
of text messages and “the other document” exchanged between Wendt and Bonner “so
we can go to the county attorney and pursue criminal charges.” Exhibit 38. Leinen
then emailed that information from his City account to his personal email account before
forwarding it to Emswiler. Exhibit 39. Leinen provided the information to Emswiler
about an hour after receiving Emswiler’s request.
On March 25, 2016, the Iowa Department of Public Safety, Division of Criminal
Investigation (DCI) determined there was no basis for pressing charges against Emswiler
based on the Entry. Exhibit 47. Emswiler was not placed on suspension during the
DCI investigation. Leinen testified that Emswiler was not suspended because the City
believed the investigation would reveal that his Entry was lawful.
The City Council conducted an evaluation of Emswiler’s job performance during
a closed session on May 3, 2016. Emswiler received overall ratings of average or above

2

Wendt operates a business in Denison called BW Outfitters.

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average from each Council member. Exhibit 22. In June 2016, however, multiple
members of the Council advised Leinen that they no longer had confidence in Emswiler
and asked Leinen to tell Emswiler that he could resign or would be fired. Leinen testified
that this development arose from Emswiler’s practice of responding to public criticism
via social media despite being directed not to. On June 23, 2016, Emswiler submitted
his letter of resignation.

Exhibit 23.

Emswiler testified that his resignation was

tendered at Leinen’s request and that he understood he would be fired if he did not resign.
Dismissal of the Charges Against Wendt. On September 12, 2016, the charge
against Wendt for reckless use of a weapon was amended from an aggravated
misdemeanor to a simple misdemeanor.

Shortly thereafter, Wendt contacted Rod

Bradley, who was serving as the City’s interim Director of Public Safety, to inform him
that the charge had been reduced. Wendt advised Bradley that he had been told his
unpaid leave status was due to the aggravated nature of the initial charge and requested
information about his employment status as soon as possible. Exhibit 29. Bradley
responded by telling Wendt he would confer with other City officials and get back to
him. Two days later, Bradley informed Wendt that the City had decided not to change
his employment status. Exhibit 30. Bradley stated that Wendt was on unpaid leave
because he faced a weapons charge, not because the charge had been an aggravated
misdemeanor.
On October 14, 2016, Wendt requested permission for secondary employment,
per City policy, when he was offered a part-time position with the Adair Police
Department. The City denied this request and Wendt filed a grievance, which was also
denied.
On November 22, 2016, the firearms charge against Wendt was dismissed, leaving
only two simple misdemeanor charges for trial – neither of which involved a firearm.
Wendt sent an email message to Dan Schaffer, the City’s new Chief of Police, to advise
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him of this development. Exhibit 41. Schaffer forwarded the message to Leinen and
to the City Attorney. Wendt’s job status was not changed.
Wendt’s remaining charges were scheduled for trial on November 28, 2016.
Leinen testified that the City had not devised any plan for addressing Wendt’s
employment status once the charges against him were resolved. On November 29, 2016,
all of the remaining charges were dismissed.

Based on this development, Wendt

requested immediate reinstatement. However, he was not reinstated at that time. No
reason was provided as to why his unpaid leave status was being maintained.
Post-Dismissal Events. On November 29, 2016, Lisa Koch, the City Clerk/City
Manager, sent an email message to Leinen and the City Council stating that a special
council meeting was needed “to discuss Brad Wendt’s pending lawsuit.”3 Exhibit 51.
The message did not make reference to any need to discuss Wendt’s employment status,
nor did it address the fact that all charges against Wendt had been dismissed. Koch sent
another email message the next day stating that she “[j]ust wanted to let everyone know,
in case you are hearing ‘rumors,’ all the charges from the DNR against Brad Wendt were
dropped yesterday.” Exhibit 52. Koch then wrote: “That is the reason for the closed
session at Tuesday night’s council meeting and the special meeting on Thursday next
week [December 6, 2016].” Id. However, Leinen testified that the reason for the
special meeting on December 6, 2016, was to discuss Wendt’s lawsuit. Moreover, on
December 5, 2016, Koch sent another email message to Leinen and the City Council in
which she asked that they review the lawsuits filed by Ohl 4 and Wendt prior to the
following day’s closed session, and another closed session that would take place the

3

As noted above, Wendt filed this action on November 7, 2016.

4

Like Wendt, Ohl filed a lawsuit against the City on November 7, 2016. That action has been
removed to this court.

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following week, because those matters would be discussed. Exhibit 42.
On December 5, 2016, Schaffer sent Leinen a letter concerning both (1) a
Facebook post created by Wendt and (2) a complaint by two Denison residents, Tim and
Brandon Johnston, that Wendt had harassed them. Exhibit 6. Schaffer explained that
he had received the information about the Facebook post from an anonymous individual
who dropped off a USB drive at the police department on December 5, 2016. Schaffer
also stated that that he received the complaint about alleged harassment on December 4,
2016. Exhibit 6. Schaffer recommended keeping Wendt on unpaid administrative leave
pending investigation into both matters. Id. On December 6, 2016, Shaffer requested
that the DCI investigate the Johnstons’ harassment complaint.
The City discussed the lawsuits filed by Wendt and Ohl in a closed session on
December 6, 2016. Leinen testified that the City kept Wendt on unpaid administrative
leave pending the investigations of Wendt’s Facebook posts and the alleged harassment
because he was already on that status and the City wanted to wait for the results of the
DCI investigation before making any decisions. Ultimately, the DCI issued a report in
which it concluded that there was not sufficient evidence to support criminal charges
against Wendt arising from the Johnstons’ harassment complaint. Exhibit 60.
Wendt’s Fate. On February 14, 2017, the City issued an Order of Removal
terminating Wendt’s employment as a police officer. Exhibit B. The Order made
reference to both (a) Wendt’s Facebook posts, including one in which he criticized the
DNR officer who had initiated the criminal charges against him, and (b) the Johnstons’
harassment complaint.

The Order stated that Wendt’s conduct was in violation of

“numerous rules of the Denison Police Department” and itemized those rules. Id.

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IV.

ANALYSIS

Wendt seeks entry of “a preliminary injunction requiring Defendant City of
Denison to immediately restore Plaintiff Bradley Wendt to active status with the Denison
Police Department, and enjoining and restraining Defendants from terminating Plaintiff’s
employment, placing Plaintiff on unpaid administrative leave, or otherwise interfering
with his ability to work as a Denison Police Officer, without the advance approval of this
Court.” Doc. No. 19 at 4.
A.

Preliminary Injunction Standards
The Eighth Circuit Court of Appeals has stated:
When evaluating whether to issue a preliminary injunction, a district court
should consider four factors: (1) the threat of irreparable harm to the
movant; (2) the state of the balance between this harm and the injury that
granting the injunction will inflict on other parties; (3) the probability that
the movant will succeed on the merits; and (4) the public interest.

Roudachevski v. All–American Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011)
(citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en
banc)).

In this circuit, these are often referred to as the “Dataphase” factors.

In

applying these factors, the court must keep in mind that a preliminary injunction is “an
extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 24 (2008). As such, the party seeking injunctive relief bears
the burden of proving that it is appropriate. Roudachevski, 648 F.3d at 705.
B.

Application of the Dataphase Factors
1.

Success on the Merits

For the reasons set forth in the following section, I find that Wendt’s request for
a preliminary injunction turns on the issue of irreparable harm. Thus, I will not address
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the probability of success on the merits in detail.

In short, based on the evidence

summarized above I cannot say that Wendt has failed to demonstrate a probability of
success. This is particularly true with regard to his First Amendment retaliation claim
as it relates to his disclosure of the Directory. I find that this Dataphase factor weighs
in favor of injunctive relief.
2.

Irreparable Harm

A party seeking a preliminary injunction must establish that he or she will suffer
irreparable harm absent such relief. See, e.g., Dataphase, 640 F.2d at 114. “Failure
to show irreparable harm is an independently sufficient ground upon which to deny a
preliminary injunction.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003)
(citing Adam–Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996);
Gelco Corp. v. Coniston Partners, 811 F.2d 414, 420 (8th Cir. 1987)); see also
Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991)
(irreparable harm is “threshold inquiry” in granting or denying preliminary injunction).
“In order to demonstrate such harm, the moving party must show ‘that the harm is certain
and great and of such imminence that there is a clear and present need for equitable
relief.’” Zhou v. International Business Machines Corporation, No. 15-CV-1027-LRR,
2015 WL 7756152, at *3 (N.D. Iowa 2015) (citing Novus Franchising, Inc. v. Dawson,
725 F.3d 885, 895 (8th Cir. 2013) (internal quotation marks omitted) (quoting Iowa Utils.
Bd. v. Fed. Commc’ns Comm’n, 109 F.3d 418, 425 (8th Cir. 1996)). When there is an
adequate remedy at law, a preliminary injunction is not appropriate. Watkins, 346 F.3d
at 844 (citing Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734,
738 (8th Cir. 1989)).
The City argues that Wendt can be fully compensated by a monetary judgment and
therefore cannot establish irreparable harm. Wendt argues that because he is likely to
10

succeed on the merits of his constitutional retaliation claim, he has established irreparable
harm. I find that even if Wendt establishes a likelihood of success on the merits, he has
failed to establish that irreparable harm will occur if he is not immediately reinstated as
a Denison Police Officer.
a.

The Whistleblower Claim

With regard to Wendt’s claims under Iowa’s Whistleblower Act, he can be fully
compensated for any injuries with monetary damages. Federal law is very clear on this
issue – lost earnings do not constitute irreparable harm.

See, e.g., Sampson v. Murray,

415 U.S. 61, 90-92 (1974); Sharp v. Parents in Community Action, Inc., 172 F.3d 1034,
1040 (8th Cir. 1999); Roberts v. Van Buren Pub. Schs., 731 F.2d 523, 526 (8th Cir.
1984).

As such, I find that Wendt has failed to demonstrate irreparable harm with

regard to his Whistleblower Act claims.
b.

The First Amendment Claims

Wendt argues that his First Amendment claims are different.

He notes that

federal courts have recognized that irreparable harm is presumed with regard to First
Amendment violations, as “[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.”

Lowry ex rel. Crow v.

Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) (quoting Elrod v. Burns,
427 U.S. 347, 373 (1976) (plurality)). While this theory of automatic irreparable harm
in First Amendment cases has some superficial appeal, it does not stand up to scrutiny
under the circumstances present here.
“To succeed in demonstrating a threat of irreparable harm, a party must show that
the harm is certain and great and of such imminence that there is a clear and present need
for equitable relief.” S.J.W. ex rel. Wilson v. Lee's Summit R–7 Sch. Dist., 696 F.3d
11

771, 778 (8th Cir. 2012) (quotation marks and citations omitted)). Moreover, “[t]he
irreparable harm factor weighs against issuing a preliminary injunction when a harm has
already occurred and can be remedied through damages.”

CDI Energy Servs. v. W.

River Pumps, Inc., 567 F.3d 398, 403 (8th Cir. 2009). Applying these principles, the
Southern District of Iowa recently found proof of irreparable harm lacking in a First
Amendment case involving the alleged censorship of a student newspaper.

See Gomez

v. Allbee, 134 F. Supp. 3d 1159, 1180-81 (S.D. Iowa 2015). Among other things, the
court noted the lack of evidence concerning a threat of future harm in the absence of
injunctive relief. Id.
I find the analysis set forth in Gomez to be persuasive and, as applied to the record
here, fatal to Wendt’s request for a preliminary injunction.

The evidence does not

suggest that the City either (a) interfered with his past efforts to exercise his First
Amendment rights or, more importantly, (b) is threatening to restrain his future efforts
to exercise those rights. With regard to the past, Wendt exercised his free speech rights
prodigiously, making his views about Emswiler and the Directory known to seemingly
anyone who would listen – both within the City government and to the public and the
press. Indeed, Wendt even openly supported a petition drive to remove Emswiler as
Chief of Police while still a member of the police force. There is simply no evidence
that the City restrained, or attempted to restrain, Wendt’s exercise of First Amendment
rights. Instead, Wendt claims that the City punished him in various ways, after the fact,
for exercising those rights.
As for the future, Wendt has identified no specific First Amendment activity with
which the City is actively interfering on an ongoing basis. At best, he testified that now
he has experienced the City’s alleged retaliation, he might think twice before engaging
in similar First Amendment conduct in the future. However, he identified no specific
free speech activities in which he would like to engage but is being prevented by the City
12

from doing so.

“A mere ‘theoretical possibility’ of future harm is not sufficient to

warrant injunctive relief; Plaintiff must show it is a ‘demonstrated probability.’”

Gomez

v. Allbee, 134 F. Supp. 3d 1159, 1181 (S.D. Iowa 2015) (quoting McFarlin v. Newport
Special Sch. Dist., 980 F.2d 1208, 1211 (8th Cir. 1992) (citations omitted); S.J.W., 696
F.3d at 778; CDI Energy Servs., 567 F.3d at 403)). The record here reflects no such
“demonstrated probability.”
Cases in which irreparable harm has been presumed with regard to First
Amendment violations involve the ongoing restraint of free speech activities. See, e.g.,
Elrod, 427 U.S. at 373 (injunctive relief affirmed due to ongoing threat that county
employees would be discharged if they failed to provide support for the Democratic
Party); Child Evangelism Fellowship of Minnesota v. Minneapolis Special School Dist.
No. 1, 690 F.3d 996, (8th Cir. 2012) (granting injunctive relief to prevent the ongoing,
viewpoint-based exclusion of an organization from an after-school program); Marcus v.
Iowa Public Television, 97 F.3d 1137, 1140-41 (8th Cir. 1996) (irreparable harm
established with regard to the exclusion of two political candidates from upcoming
television forums).
I had occasion to address the presumption of irreparable harm in Xcentric
Ventures, L.L.C. v. Smith, No. C15-4008-MWB, 2015 WL 4940812 (N.D. Iowa Aug.
19, 2015).5

In that case, a website hosting company and its owner claimed that an

elected county attorney was engaged in ongoing First Amendment retaliation by issuing
subpoenas, disclosing confidential information and threatening criminal charges in
response to criticism of the county attorney that was being posted on the website. After
conducting an evidentiary hearing, I found that the plaintiffs had established a likelihood
5

My analysis in Xcentric was in the form of a Report and Recommendation issued while I was
a United States Magistrate Judge. The District Judge accepted the Report and Recommendation
without modification. See Xcentric Ventures, L.L.C. v. Smith, No. C15-4008-MWB, 2015 WL
5184114 (N.D. Iowa Sept. 4, 2015).

13

of success on the merits of their First Amendment retaliation claim. Id. at *20. With
regard to irreparable harm, I wrote:
A party seeking a preliminary injunction typically must establish that
it will suffer irreparable harm absent such relief. See, e.g., Dataphase,
640 F.2d at 114. However, such harm is presumed with regard to First
Amendment violations, as “[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable
injury.” Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752,
762 (8th Cir. 2008) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality)). Even without this presumption, I find that irreparable harm
would continue to occur if Smith is not enjoined from continuing with his
seemingly-retaliatory conduct. In particular, the continued receipt, review
and disclosure by Smith of privileged communications and confidential
financial information would likely cause harm that could not be cured or
remedied by a mere award of money damages. Based on the legal
presumption of irreparable harm and the evidentiary record, I find that this
factor weighs in favor of injunctive relief.
Id. at *21. Thus, Xcentric presented a situation in which both (a) the plaintiffs were
engaged in ongoing First Amendment conduct and (b) the defendant was engaged in
ongoing adverse conduct of a “seemingly-retaliatory” nature. I found that injunctive
relief was appropriate to prevent further injury to the plaintiffs’ First Amendment rights
pending trial.
Wendt’s situation is different.

He complains of past adverse action that was

allegedly motivated by past free speech activities. If he prevails, his damages will arise
from the loss of his employment and, perhaps, other economic harm that resulted from
past retaliatory conduct.6 He has not shown that he faces the risk of future, irreparable

Wendt alleges that his continued absence from the police department damages his reputation.
Reputational damage can pose a threat of irreparable harm. See Roudachevski v. All-Am. Care
Centers, Inc., 648 F.3d 701, 707 (8th Cir. 2011) (citing Med. Shoppe Int'l, Inc. v. S.B.S. Pill
Dr., Inc., 336 F.3d 801, 805 (8th Cir. 2003)). However, Wendt did not present evidence
supporting a finding that he is likely to suffer irreparable damage to his reputation absent
injunctive relief.
6

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harm absent the injunctive relief he requests.

As such, his request for a preliminary

injunction must be denied. See, e.g., Watkins, 346 F.3d at 844.
c.

Remaining Dataphase factors

Because Wendt did not meet his burden of demonstrating irreparable harm, I need
not address the remaining Dataphase factors in detail. For the record, I find that based
on the record before me, (1) forcing the City to reinstate Wendt as a police officer would
not be in the public interest and (2) the balance of the respective harms is roughly equal.
V.

CONCLUSION

For the reasons set forth herein, plaintiff Bradley Wendt’s motion (Doc. No. 19)
for preliminary injunction is denied.
IT IS SO ORDERED.
DATED this 8th day of June, 2017.

__________________________
Leonard T. Strand, Chief Judge

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