Lu v. Hulme et al

Filing 8

First Opposition re 2 MOTION for Temporary Restraining Order filed by George Hulme, Trustees of Boston Public Library. (Driscoll, Caroline)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-11117-MLW

FRIEDRICH LU,
Plaintiff,
v.
GEORGE HULME, in his individual
capacity and in his official capacity,
TRUSTEES OF THE BOSTON PUBLIC
LIBRARY,
Defendants.

DEFENDANTS GEORGE HULME AND THE TRUSTEES OF THE
BOSTON PUBLIC LIBRARY’S OPPOSITION TO PLAINTIFF’S
MOTION FOR TEMPORARY RESTRAINING ORDER
Defendants George Hulme (“Hulme”) and the Trustees of the Boston Public
Library (“Trustees”) hereby submit this Opposition to Plaintiff’s Motion for Temporary
Restraining Order (“TRO”). Plaintiff’s TRO and accompanying Complaint fail to
demonstrate a likelihood of success on the merit, fail to demonstrate any kind of
irreparable harm, and are contrary to the general public’s interest.
As set forth in greater detail in Defendants’ concurrently filed Motion to Dismiss,
Plaintiff’s complaint does not set forth any facts that establish the basic elements of any
constitutional claims.1 Assuming, arguendo, that this court finds a reason to deny the
Defendants’ Motion to Dismiss, Plaintiff’s TRO should be denied. Plaintiff’s TRO
requests that this Court provide him with the right “to enter [the Boston Public Library]
unencumbered.” See TRO, ¶ 5. If granted, such a request would provide Plaintiff with an

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For purposes of this Opposition, Defendants refer to the facts as described in Defendants’ Memorandum
in Support of Motion to Dismiss and relies on the arguments set forth therein.

advantage over all other patrons who are subject to the Boston Public Library’s
Appropriate Library Use Policy (the “Policy”).2
To succeed on his TRO the Plaintiff must demonstrate: (1) a substantial likelihood
of success on the merits, (2) a significant risk of irreparable harm if the injunction is
withheld, (3) a balancing of the equities, and (4) whether granting such relief is in the
public interest. Bear Republic Brewing v. Central City Brewing, 716 F.Supp. 2d 134, 139
(D.Mass. 2010) citing Weaver v. Henderson 984 F.2d 11, 12 & n.3 (1st Cir. 1993).
Injunctive relief is a “‘drastic remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of persuasion.’” Id. citing Mazurek v. Armstrong,
520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller & M. Kane, Fed. Prac. &
Proc. § 2948, pp. 129-130 (2d ed. 1995) (emphasis added; footnotes omitted)).
As to the first element, Plaintiff must demonstrate a substantial likelihood of
success on the merits. Plaintiff, however, has failed to plead factual allegations that even
suggest a violation of any of his constitutional rights. Count I is highly unlikely to
succeed because the libraries may maintain restrictions on use, which enable the general
public to use and enjoy the facilities. Additionally, Count II is unlikely to succeed
because Plaintiff has failed to describe any behavior by the Trustees or Mr. Hulme that
would be construed as “threats, intimidation, or coercion” per M.G.L. c. 12 § 11I. Absent
any facts that would provide a basis for viable claims, Plaintiff has not demonstrated a
likelihood of success on the merits.
Regarding the second element, Plaintiff cannot demonstrate a significant risk of
irreparable harm. Plaintiff was not banned from the BPL, but only prohibited from
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In paragraph 11 of his complaint, Plaintiff alleges his belief that the Boston Public Library (“BPL”) does
not have any kind of library usage policy. The BPL’s Appropriate Library Usage Policy is posted on its
web site, which is publicly available at http://www.bpl.org/general/policies/acceptableuse.htm.

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entering with his belongings in an open grocery cart. Plaintiff may enter as any other
patron may, so long as his use of the BPL’s facilities is consistent with the BPL’s Policy.
Compliance with reasonable regulations does not constitute irreparable harm. Indeed, as
discussed above, Courts reviewing such policies have found that reasonable restrictions
are consistent with a library’s obligation to provide access to information to all patrons.
See Neinast v. Board of Trustees of Columbus Metropolitan Library, 346 F.3d 585, 592
(6th Cir. 2003); Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242,
1262-63 (3rd Cir. 1992).
Moreover, Plaintiff has failed to demonstrate that his alleged need to enter the
public library with his personal belongings outweighs the library’s obligation to ensure
that all patrons enjoy the facility without undue disturbance. Granting Plaintiff’s
temporary restraining order would have the practical effect of taking away the BPL’s
ability to enforce its Policy and give Plaintiff an advantage over all other patrons because
he would be allowed to enter “unencumbered.” Unlike other patrons, who are not
permitted to bring in excessive amounts of baggage or other personal items, Plaintiff’s
relief would merely frustrate the BPL’s ability to safeguard the cleanliness and security
of its facilities.
Finally, granting this TRO is not in the public’s interest, but merely provides
Plaintiff with advantages over others. The general public has an overriding interest in
enjoying the BPL without interference or disturbance from other patrons. Thus, in order
to safeguard the general public’s interest in accessing information and using the library’s
services, Plaintiff’s TRO should be denied.

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CONCLUSION
For the reasons stated above, Defendants, the Trustees of the Boston Public
Library and George Hulme, respectfully request that this Court deny Plaintiff’s Motion
for Temporary Restraining Order.

Respectfully submitted,
DEFENDANTS GEORGE HULME, in his
individual capacity and in his official capacity
and TRUSTEES OF THE BOSTON PUBLIC
LIBRARY

Date: July 5, 2012

William Sinnott
Corporation Counsel
By their attorneys:

/s/Caroline O. Driscoll_________
Caroline O. Driscoll, BBO# 647916
Assistant Corporation Counsel
City of Boston Law Department
City Hall, Room 615
Boston, MA 02201
[phone]
LOCAL RULE 7.1 CERTIFICATION
I hereby certify that on July 3, 2012 I emailed Plaintiff regarding the Defendants’
intention to file this Motion and attempted to resolve or narrow the issues raised in this
case. As of the time of filing, I have not received a response from Plaintiff.
I also certify that on July 5, 2012, I filed this document through the Court’s
CM/ECF system and that an electronic copy will be sent via email to those identified as
non-registered participants per agreement with Plaintiff.

/s/Caroline O. Driscoll
Caroline O. Driscoll

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