Perry et al v. Clackamas County Sheriff's Office

Filing 8

OPINION & ORDER: Plaintiffs' motion for a temporary restraining order 1 is DENIED. Signed on 6/19/2018 by Judge Marco A. Hernandez. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMANDA PERRY; MICHAEL ALLEN;
TRINO LOPEZ; and ANDREA LOPEZ,

No. 3:18-cv-01042-HZ

Plaintiffs,
v.
CLACKAMAS COUNTY SHERIFF'S
OFFICE, a political subdivision of
Clackamas County, Oregon,

OPINION & ORDER

Defendant.
HERNANDEZ, District Judge:
Plaintiffs, occupants of real property located in Oregon City, Oregon, bring this 42 U.S.C.
§ 1983 action against Defendant Clackamas County Sheriff's Office. Compl. ¶ 6, ECF 2.
Plaintiffs contend that Defendant violated Plaintiffs' constitutional rights by selling the real
property pursuant to an writ of execution which, under Oregon law, had expired. Id. ¶¶ 10, 17.
Plaintiffs contend that as a result, Defendant had no authority to sell property. Id. ¶ 18. Plaintiffs
assert that Defendant's actions deprived them of their property rights without due process in
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violation of the Fourteenth Amendment, and violated their Fourth Amendment rights by
unreasonably seizing the property and their home. Id. ¶¶ 18, 25-30. As detailed more fully
below, Plaintiffs were evicted from the property on May 30, 2018. Id. ¶ 19. However, they have
now returned to the property. Nonetheless, they move for a temporary restraining order (TRO)
preventing "Defendant from removing them once again" and restraining Defendant from
reentering the premises. TRO Mot. at 2, ECF 1. For the reasons explained below, I deny the
TRO motion.
STANDARDS
The standard for a TRO is "essentially identical" to the standard for a preliminary
injunction. Chandler v. Williams, No. CV 08-962-ST, 2010 WL 3394675, at *1 (D. Or. Aug. 26,
2010) (citing Stuhlbarg Int'l Sales Co, v. John D. Brushy & Co., 240 F.3d 832, 839 n. 7 (9th Cir.
2001)); see also Daritech, Inc. v. Ward, No. CV–11-570–BR, 2011 WL 2150137, at * 1 (D. Or.
May 26, 2011) (applying preliminary injunction standard to motion for TRO).
"A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest."
Am. Trucking Ass'ns Inc. v. City of L. A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v.
Nat. Res. Defense Council, Inc., 555 U.S. 7, 21 (2008)).
DISCUSSION
Plaintiff alleges that the property at issue was the subject of a foreclosure action in
Clackamas County, Oregon. Compl. ¶ 13 (citing Clack. Cty. Case No. CV12100184). A
General Judgment of Foreclosure was entered in that case on September 21, 2016. Id. ¶ 14; see

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also Leonard June 14, 2018 Decl., Ex. 3, ECF 1-2 at 38-46 (Corrected Gen'l Judgmt. of
Foreclosure in favor of Wells Fargo Bank against Timothy K. Mathes, Elisea R. Call, State of
Oregon, and Occupants of the Premises dated September 21, 2016). Under that Judgment, a
Deed of Trust executed by Mathes in favor of Wells Fargo's predecessor in interest was adjudged
to be a valid lien against the property. Id. As a result of that Judgment, the defendants in that
proceeding, including the "Occupants" were "forever barred and foreclosed of all interest, lien, or
claim in the Property and every portion thereof excepting only any statutory right of redemption
provided by the laws of the State of Oregon." Id.
On May 4, 2017, a writ of execution was issued by the Clerk of the Clackamas County
Circuit Court. Compl. ¶ 14; see also Leonard Decl., Ex. 1, ECF 1-2 at 5-19. Plaintiff alleges
that the writ was "duly delivered" to Defendant. Compl. ¶ 14. The documents themselves show
that Defendant received the writ on June 13, 2017. Leonard Decl., Ex. 1 at 5 (Return of Writ in
which Clackamas County Sheriff's Department Adrianna Dominguez certifies she received the
writ on June 13, 2017); Id. at 8 (Writ of Execution stamped "Received" by Defendant on June 13,
2017). Pursuant to the writ, the property was sold on July 25, 2017. Compl. ¶ 15; Leonard
Decl., Ex. 1, ECF 1-2 at 5-19. The writ was returned to the Clackamas County Circuit Court on
that date. Id.
In April 2018, the bank, the judgment creditor in the general judgment of foreclosure,
filed a motion in the state court civil action in Clackamas County, for a writ of assistance.
Leonard Decl., Ex. 4, ECF 1-2 at 47-54. The Clackamas County Circuit Court granted the
motion and the writ of assistance was filed on April 12, 2018. Id. Defendant was ordered to
enforce the writ. Id. Defendant did so on May 30, 2018 and removed Plaintiffs from the
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property. Id.
On June 7, 2018, the Clackamas County Circuit Court issued an order in the same civil
case number CV12100184, vacating the April 12, 2018 writ of assistance and quashing the writ.
Leonard Decl., Ex. 6, ECF 1-2 at 85-86. The Court did so based on the motion of the
"Occupants." Id. According to assertions made by Plaintiffs in their TRO motion, they moved to
vacate the writ of assistance based on invalid notice. TRO Mot. at 5. The Court ordered that the
Occupants be allowed to return to and occupy the property pending the outcome of a hearing to
be held within two weeks. Id.
One week later, Plaintiffs filed this action. In their Complaint, they assert that they have
not been allowed to return to the property to gather the necessary medication for their disabled
children. Compl. ¶ 23. They further contend that they have been forced to pay to stay at a motel
and board their dogs, all to their detrimental expense. Id. They also allege that the
developmentally disabled children have reacted poorly to the sudden and abrupt change in living
situation and will require therapy at a cost of $10,000. Id. In the TRO motion, Plaintiffs
acknowledge that they were allowed to return to their home as of June 7, 2018. TRO Mot. at 5.
The basis of Plaintiffs' § 1983 claims is that under Oregon Revised Statute § (O.R.S.)
18.872, the Sheriff must return a writ of execution to the court administrator within sixty days
after the sheriff receives the writ. O.R.S. 18.872(1). A longer time, but no more than 150 days,
may be allowed if authorized by the person who requested the writ of execution. Id. The court
that issued the writ may extend the time for return of the writ. Id. Plaintiffs allege that
Defendant has an unlawful policy of placing writs of execution received from the circuit court in
a filing cabinet. Compl. ¶ 11. When Defendant "has the time and inclination to act on the writ,"
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the writ is retrieved and then stamped with the date received, which starts the sixty-day clock
provided for in O.R.S. 18.872(1). Because, however, in this case, the writ is dated by the circuit
court on May 4, 2017, Plaintiffs allege that the sale which occurred on July 25, 2017, is more
than sixty days after the issuance of the writ and thus, as of the date of the sale, the writ had been
expired for twenty-two days. Id. This, according to Plaintiffs, voids the sale because Defendant
had no authority to conduct the sale. Id.
Plaintiffs' allegations and the fact that they are currently occupying the property (or have
the right to) and are in active litigation in a state court regarding their right to continue to occupy
the property, all indicate that the TRO motion must be denied. First, no allegation indicates that
any of the four Plaintiffs was ever a property owner or party to the Deed of Trust. Therefore,
Plaintiffs were either tenants or squatters on the property. Although Plaintiffs allege that they had
a right to possess the property up and until a valid sheriff's sale was concluded, that is a
conclusory allegation of law and does not establish those rights for the purpose of showing a
likelihood of success on the merits of the claims asserted here. Plaintiffs provide no law
indicating that as tenants or squatters, they have the right to challenge the legality of a foreclosure
sale. They also provide no law indicating that they have the right to challenge an allegedly
untimely return of a writ of execution under O.R.S. 18.872(1). Additionally, to the extent
Plaintiffs ever had any rights other than as tenants or squatters, those rights were extinguished as
a result of the General Judgment of Foreclosure. And, as that Judgment makes clear, any rights
that Plaintiffs ever had were terminated with that Judgment. Thus, both before and after the
Judgment of Foreclosure, Plaintiffs were either tenants or squatters. They fail to establish a right
to possession. As a result, they fail to establish that they have standing to bring claims based on
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a right to possess the property. As a result, they fail to show that they have a likelihood of
success on the merits.
Second, the TRO motion seeks an order prohibiting Defendant from removing Plaintiffs
"again" from the property and prohibiting Defendant from reentering the property. But,
Defendant, in evicting Plaintiffs on May 30, 2018, acted pursuant to an Order from the
Clackamas County Circuit Court. Presumably, Defendant would return to the property to remove
Plaintiffs only pursuant to another similar order. This raises serious questions of abstention.
Under principles of comity and federalism, a federal court should not interfere with ongoing state
proceedings by granting declaratory or injunctive relief absent extraordinary circumstances.
Younger v. Harris, 401 U.S. 37, 43–54 (1971); see also Kleenwell Biohazard Waste & Gen.
Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 393 (9th Cir.1995) ("Under Younger and its
progeny, federal courts should abstain from intervening in pending state judicial proceedings out
of deference to the interests of comity and federalism."). Because granting the requested relief in
the TRO motion could interfere with the proceedings currently pending in Clackamas County
Circuit Court, Younger cautions against granting the TRO motion.
Finally, because Plaintiffs are currently occupying the property (or have the right to do
so), and because there is no suggestion that a writ of assistance is currently being sought by the
property owner, there is no urgency. The issues raised by the allegations and addressed in this
Opinion would be better resolved after Defendant has appeared and had an opportunity to be
heard in this matter. In summary, Plaintiffs fail to establish a likelihood of success on the merits.
No immediate irreparable harm is demonstrated. I decline to address the other factors.
///
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CONCLUSION
Plaintiffs' motion for a temporary restraining order [1] is denied.
IT IS SO ORDERED.

Dated this

day of

Marco A. Hernandez
United States District Judge

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, 2018