Kohr et al v. City Of Houston
Filing
69
MEMORANDUM OPINION AND ORDER denying Plaintiffs' Motion for Preliminary Injunction. The Temporary Restraining Order (TRO) previously issued in this case is hereby DISSOLVED. ( Amended Pleadings due by 1/30/2018; Joinder of Parties due by 1/30/20 18; Pltf Expert Report due by 5/1/2018; Pltf Expert Witness List due by 5/1/2018; Deft Expert Report due by 6/1/2018; Deft Expert Witness List due by 6/1/2018; Discovery due by 7/31/2018; Dispositive Motion Filing due by 8/20/2018; Docket Call set for 12/3/2018 at 11:30 AM in Courtroom 11A before Judge Kenneth M Hoyt)(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TAMMY KOHR, et al,
§
§
§
§
§
§
§
§
Plaintiffs,
VS.
CITY OF HOUSTON,
Defendant.
December 28, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-1473
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Pending before the Court are the plaintiffs’ motion for a preliminary injunction and
related attachments, (See Dkt. Nos. 48, 49, 59 & 61), together with the City’s responses thereto.
(See Dkt. Nos. 51, 52, 54, 62 & 63).1 After careful consideration of the pleadings, motions,
responses, testimony at the hearing and arguments of counsel, the Court determines that the
plaintiffs’ motion for preliminary injunction should be DENIED.2 The temporary restraining
order (“TRO”) previously issued in this case is hereby DISSOLVED.
II.
BACKGROUND
The plaintiffs, Tammy Kohr, Eugene Stroman, Janelle Gibbs, and Robert Colton
(collectively, the “plaintiffs”), on behalf of themselves and a class of homeless persons similarlysituated, filed the instant action against the City of Houston (the “City”) seeking, inter alia,
preliminary injunctive relief from various city ordinances alleged to be violative of their First,
Fourth, Eighth and Fourteenth Amendment rights under the U. S. Constitution. The plaintiffs
1
The parties have filed various motions in limine and motions to strike in conjunction with the plaintiffs’ motion for
preliminary injunction (Dkt. Nos. 49, 51, 52, 53, 54 & 59), which the Court determines should be denied.
2
Today, this Court addresses only the plaintiffs’ motion for preliminary injunction and not the merits of the case,
particularly, whether a tent constitutes a shelter.
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contend that the City’s enforcement of “no-camping” and/or “encampment” ordinances violates
their rights to be free from cruel and unusual punishment under the Eighth Amendment and
essentially criminalizes their “homeless” status, singling them out for disparate treatment.
On August 22, 2017, upon the plaintiffs’ ex parte emergency application for a TRO, this
Court entered a TRO enjoining the City from enforcing Houston Code of Ordinances §§ 21-61 to
21-62, which prohibits encampment in a public place as well as the unauthorized use of various
materials as a tent or other temporary structure for living accommodation purposes or habitation
in certain public spaces. On September 6, 2017, the Court extended the TRO as a result of
challenges associated with the landfall of Hurricane Harvey throughout various parts of Houston.
On October 17, 2017, the parties filed their Notice of Joint Scheduling Proposal agreeing to
convene for a preliminary injunction hearing relative to the matter on October 31, 2017, and
further agreeing to file exhibits and other supplemental evidence by October 25, 2017.
Thereafter, the Court set the matter for a preliminary injunction hearing on October 31, 2017 at
9:30 a.m.
On October 31, 2017, the parties appeared before the Court for a hearing on the
plaintiffs’ motion for preliminary injunction relief. At the close of the evidence, the Court took
the matter under advisement and hereby memorializes its factual findings and conclusions of law
from that evidentiary hearing.3
III.
PRELIMINARY INJUNCTION STANDARD
The Court has jurisdiction to resolve this matter pursuant to 28 U.S.C. § 1331, as this
case involves, inter alia, claims arising under the Constitution and laws of the United States,
namely 42 U.S.C. § 1983 and the First, Fourth, Eighth and Fourteenth Amendments to the U.S.
3
To the extent that any finding of fact is more properly characterized as a conclusion of law, or vice versa, the Court
adopts it as such.
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Constitution. Rule 65 of the Federal Rules of Civil Procedure authorizes a district court to issue
an injunction. See Fed. R. Civ. P. 65.
A district court may grant the extraordinary relief of a temporary restraining order or
preliminary injunction if the movant establishes four prerequisites: (1) a substantial likelihood of
success on the merits; (2) a substantial threat that the movant will suffer immediate and
irreparable harm if the injunction does not issue; (3) that the threatened harm to the movant
outweighs any injury or damage the preliminary injunction may cause to the defendant; and (4)
that the granting of the preliminary injunction will not disserve the public interest. See Clark v.
Prichard, 812 F.2d 991, 993 (5th Cir. 1987) (citing Canal Auth. of the State of Florida v.
Callaway, 489 F.2d 567, 572 (5th Cir. 1974)); see also Nichols v. Alcatel USA, Inc., 532 F.3d
364, 372 (5th Cir. 2008).
The movant “must satisfy a cumulative burden of proving each of the four elements
enumerated before a preliminary injunction can be granted.” Clark, 812 F.2d at 993 (citing Miss.
Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). The
decision whether to grant or deny a request for a preliminary injunction, however, is left to the
sound discretion of the district court. Miss. Power & Light Co., 760 F.2d at 621. Nevertheless,
the Fifth Circuit has “cautioned repeatedly that a preliminary injunction is an extraordinary
remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of
persuasion’ on all four requirements.” Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d
192, 196 (5th Cir. 2003) (internal citation omitted).
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IV.
ANALYSIS AND DISCUSSION
A.
Standing
As a threshold matter, the City argues that the plaintiffs lack standing to raise
constitutional challenges to its encampment ordinance.
Since standing is a jurisdictional
requirement that cannot be waived and concerns this Court’s very ability to adjudicate the instant
dispute, the Court must first determine whether the plaintiffs have standing to assert the
constitutional challenges now before it. A standing inquiry “raises the issue of whether the
plaintiff is entitled to have the court decide the merits of the dispute or of particular issues.”
Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000) (citing Cook v. Reno, 74 F.3d 97,
98 - 99 (5th Cir. 1996) (internal quotations and footnotes omitted)). “Standing is a jurisdictional
requirement that focuses on the party seeking to get his complaint before a federal court and not
on the issues he wishes to have adjudicated.” Id. The United States Supreme Court explains that
in order to demonstrate Article III standing, a plaintiff must establish the following:
First, the plaintiff must have suffered an ‘injury in fact’-an invasion of a legally
protected interest that is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of . . . . Third, it must
be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.’
United States v. Hays, 515 U.S. 737, 742 – 43 (1995) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 – 61 (1992)); see also Sierra Club v. Peterson, 185 F.3d 349, 360 (5th Cir.
1999).
To obtain injunctive relief, “an additional inquiry is required, namely that Plaintiffs show
that they are likely to suffer future injury by the defendant and that the sought-after relief will
prevent that future injury.” James v. City of Dallas, Tex., 254 F.3d 551, 562 - 563 (5th Cir.
2001) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (“‘Past exposure to illegal
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conduct does not in itself show a present case or controversy regarding injunctive relief.’”
(quoting O’Shea v. Littleton, 414 U.S. 488, 495 – 96 (1974)) (other citations omitted).
Nevertheless, “if the injury is accompanied by ‘any continuing, present adverse effects,’ standing
for injunctive relief can be found.” James, 254 F.3d at 563 (citing Lyons, 461 U.S. at 102, 103 S.
Ct. 1660 (internal quotations omitted) (quoting O'Shea, 414 U.S. at 495 - 96, 94 S. Ct. 669); see
also Soc’y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.1992) (“To obtain
equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and
immediate threat of repeated injury in the future.”)).
The plaintiffs’ alleged claims do not traverse from speculative or abstract to concrete and
imminent. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341, 189 L. Ed. 2d 246
(2014) (quoting Lujan, 504 U.S. at 560 – 61). Although the named plaintiffs in this case have
cited varying degrees of exposure to the rigors of a life of homelessness and to the enforcement
of the encampment ordinances, neither has been cited, arrested, prosecuted, or convicted of a
violation of any of the ordinances for which they complain.4 Their perceived threats of future
criminal prosecution, without more, are an insufficient basis upon which to hold the encampment
ordinance violative of the Eighth Amendment.
The Fifth Circuit in Johnson v. City of Dallas, Tex., held that a district court in the
Northern District of Texas lacked jurisdiction to issue a preliminary injunction enjoining the City
of Dallas from enforcing a Texas criminal trespass statute against the plaintiff, reasoning that
“[t]he law is well settled that ‘a plaintiff who has not been prosecuted under a criminal statute
does not normally have standing to challenge the statute’s constitutionality.’” 61 F.3d 442, 444
(5th Cir. 1995) (internal citations and quotations omitted). In reliance on this authority, the
4
The City also contests whether plaintiffs Tammy Kohr and Eugene Strohman are indeed unsheltered homeless
individuals so as to qualify as adequate class representatives.
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Court determines that the plaintiffs lack standing to challenge the constitutionality of the
encampment ordinance on Eighth Amendment grounds in the absence of a citation or conviction
for violating the ordinance. Id.
B.
The Plaintiffs’ Motion for Preliminary Injunction
Notwithstanding the plaintiffs’ lack of standing to assert a constitutional challenge to the
encampment ordinance premised on an Eighth Amendment violation, the Court determines that
the plaintiffs’ motion for a preliminary injunction, to enjoin the City from enforcing the tent ban,
codified at Houston Code of Ordinances §§ 21-61 to 21-62, against unsheltered homeless people,
should be DENIED. As set forth above, a preliminary injunction is an extraordinary remedy that
may only be granted if the plaintiffs clearly establish the following four prerequisites: (1) a
substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer
immediate and irreparable harm if the injunction does not issue; (3) that the threatened harm to
the movant outweighs any injury or damage the preliminary injunction may cause to the
defendant; and (4) that the granting of the preliminary injunction will not disserve the public
interest. See Clark, 812 F.2d at 993; see also Nichols, 532 F.3d at 372. The Court will address
each of these four prerequisites in turn.
1. Whether the plaintiffs have demonstrated a substantial likelihood of
success on the merits?
The plaintiffs have failed to establish a substantial likelihood of success on the merits.
The plaintiffs maintain that §§ 21-61 to 21-62 of the encampment ordinance violate their Eighth
Amendment right to be free from cruel and unusual punishment, as applicable through the
Fourteenth Amendment, because it punishes persons by virtue of their “homeless” status. As
support for their position, the plaintiffs rely upon Robinson v. California, 370 U.S. 660, 666
(1962) as well as Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), for the
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proposition that the ordinance is unconstitutional because it punishes involuntary conduct that
necessarily arises from immutable status. This Court does not agree. Although the ordinance
does prohibit certain conduct—namely, setting up “tents” or other temporary structures in public
places for the purpose of habitation and to exclude others from those places--any person,
regardless of whether he or she is homeless, using such temporary structures as living
accommodations in a public place within the City is subject to this ordinance. Thus, the
ordinance does not criminalize “homeless” status but rather prohibits obstructions that hinder the
City from preserving public property for its intended purpose. See Lehr v. City of Sacramento,
624 F. Supp. 2d 1218, 1231 (E.D. Cal. 2009) (finding Eighth Amendment inapplicable in case
where the contested ordinance targeted conduct and not homeless status).
Also, the encampment ordinance facially appears to be a valid exercise of the City’s
discretionary police power. See Powell v. Texas, 392 U.S. 514, 532 (1968) (plurality opinion)
(state statute punishing public intoxication is constitutionally permissible because it punishes an
act, “being in public while drunk on a particular occasion,” not a status, “being a chronic
alcoholic.”).
The encampment ordinance’s preamble indicates that it was enacted to help
provide options for homeless persons, including access to shelters, short-and medium-term rental
subsidies and programs to facilitate private employment. The City maintains that the goal of the
encampment ordinance is to create safe environments for unsheltered homeless individuals living
in the encampments as well as the general public living around the encampments. (Dkt. No. 57,
p. 52, lines 21-23). It avers that the encampment ordinance was not passed to punish homeless
people but rather was developed in response to the increased number of encampments
developing throughout the City and the public health hazards that they pose. (Dkt. No. 47-1, p.1,
¶ 3; Dkt. No. 57, p. 79:22 - 25). Sergeant Sedgwick testified that the ordinance does not provide
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for the issuance of a citation or the arrest of an individual for merely being present, sleeping or
possessing personal property on the encampment sites. (See Dkt. Nos. 47 & 52). Against this
extensive background, the Court cannot say that the plaintiffs have exhibited a substantial
likelihood of success on the merits.
2. Whether a substantial threat exists that the plaintiffs will suffer
immediate, irreparable harm if the injunction does not issue?
The plaintiffs have failed to establish how permitting the ordinance to remain effective
would cause them irreparable harm. The Fifth Circuit has long recognized that, “only those
injuries that cannot be redressed by the application of a judicial remedy after a hearing on the
merits can properly justify a preliminary injunction.” Canal Auth. of the State of Florida, 489
F.2d at 573. The encampment ordinance, as currently enacted and enforced, does not criminalize
homelessness or violate any of the plaintiffs’ guaranteed constitutional protections. It also does
not ban sleeping in public but rather the erection of tents or other temporary structures to
facilitate encampment or the accumulation of large amounts of property in public spaces.
Before an individual can be issued a citation for violating the encampment ordinance, for
instance, several events must have occurred: (1) the individual must have first received a
warning; (2) the individual’s name, location, and warning content must be catalogued into a local
database; and (3) and the individual must have been given an opportunity to comply. An
individual can avoid the issuance of a citation by complying with the ordinance by taking down
the tent or temporary living structure and/or removing other items that the ordinance prohibits.
Before an individual can be arrested, he or she must have received a written warning, been
offered a reasonable opportunity to comply with the prohibition, received an offer of shelter or
other assistance from the Houston Police Department’s Homeless Outreach Texas (“HOT”) team
or a designated affiliate and have refused the offer of shelter, assistance or an officer’s directive.
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The plaintiffs’ speculative concerns regarding the encampment ordinance’s impact on
their employment, daily activities, protective shelter, personal possessions and the like, along
with their anecdotal evidence concerning other barriers to shelter access and transportation,
without more, are insufficient to demonstrate irreparable harm, especially in light of the evidence
in the record that alternative living arrangements are available for unsheltered homeless persons
living in the encampments. Further, even assuming the plaintiffs’ allegations as true, speculative
damages are not enough to warrant the extreme step of imposing a preliminary injunction. See
U.S. v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001) (declining to grant preliminary injunction
simply to prevent the possibility of remote future injury).
3. Whether the threatened harm to the plaintiffs outweigh any injury or
damage to the City?
The plaintiffs have not shown that the harm they would suffer substantially outweighs the
harm that the injunction may cause the City and its residents.
The City emphasizes that
enforcement of the ordinances is driven by legitimate government interests of public safety and
sanitation, as it is undisputed that the encampments have no running water, no restroom facilities
and contain numerous personal items that have, in most instances, been infested with fecal
matter, pests and other potentially harmful substances. These factors weigh against issuance of
the preliminary injunction.
4. Whether granting the preliminary injunction will disserve the public
interest?
The testimony adduced at the hearing establishes that allowing the encampments to
continue in their current condition poses a greater detriment to the City and its residents moreso
than any harm that may result from the City’s enforcement of the ordinance. Since the TRO has
been in effect, instances of homeless persons having been seriously injured or killed at or near
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the encampment sites have been reported; trash and waste have accumulated, causing health
hazards for both the general public as well as the inhabitants of the encampment sites; and
members of the general public are precluded from using the spaces as originally intended, due to
the erection of temporary living structures at these sites. The sites have no plumbing, sanitation
or trash pick-up.
Dr. David Persse, the City’s Public Health Authority, testified that the
encampments create an environment whereby communicable diseases may be transmitted to the
inhabitants, neighboring communities and the general public at large. (Dkt. No. 57 at 134 – 36).
Finally, the City has expended thousands of dollars, reportedly removing over 16 tons of waste
from the Chartres and Wheeler encampment sites.
(Dkt. No. 47-1 at 2).
A preliminary
injunction would only enable trash, pests, and human waste to continue to fester, creating a
health nuisance for the community at large. While this Court is indeed sympathetic to the impact
that enforcement of the encampment ordinance on unsheltered homeless individuals poses, the
Court recognizes the City’s police powers to enact and enforce reasonable legislation that
promotes the health, safety and general welfare of all Houston residents. This factor weighs
against issuance of the preliminary injunction.
The plaintiffs have not asserted a cognizable claim under the Eighth Amendment. The
plaintiffs have failed to establish the requisite elements necessary to warrant the Court’s issuance
of the extraordinary relief they seek. Accordingly, the plaintiffs’ motion for a preliminary
injunction is hereby DENIED. The TRO previously issued is hereby DISSOLVED.
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It is further ORDERED that the following docket control schedule shall now govern in
this case:
Motions to AMEND PLEADINGS and/or
JOIN NEW PARTIES must be filed by:
January 30, 2018
PLAINTIFFS’ EXPERTS are to be designated
by:
May 1, 2018
PLAINTIFFS’ EXPERT REPORTS are to be
furnished by:
May 1, 2018
DEFENDANT’S
designated by:
be
June 1, 2018
DEFENDANT’S EXPERT REPORTS are to
be furnished by:
June 1, 2018
DISCOVERY must be completed by:
July 31, 2018
EXPERTS
are
to
DISPOSITIVE MOTIONS are to be filed and
served by:
August 20, 2018
DOCKET CALL is to be held at 11:30 a.m. on:
December 3, 2018
TRIAL is set for:
TBA
It is so ORDERED.
SIGNED on this 28th day of December, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge
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