Opinion
Case No. 3:22-cv-04178-WHO
2022-07-22
Jackson BLAIN, et al., Plaintiffs, v. CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al., Defendants.
Jackson Blain, Pro Se. John Janosko, Pro Se. Kellie Castillo, Oakland, CA, Pro Se. Kelly Thompson, Pro Se. Nicolas Gonzalez, Pro Se. Esteban Gonzalez, Pro Se. Shawn Widomen, Pro Se. Peter A. Doder, Pro Se. Alex Heine, Pro Se. James Freeman, Pro Se. Mayana Sparks, Pro Se. Adam Davis, Pro Se. Richard Milton, Pro Se. Benjamin Murawski, Pro Se. Ramona, Pro Se. Greg Widomer, Pro Se. James Foreman, Pro Se. Ken Shen, Pro Se. Pierre Daniels, Pro Se. Phil Jenkins, Pro Se. David Bahar, Pro Se. Katherine Cavener, Pro Se. Jeremy Oliviera, Pro Se. Abby Dill, Pro Se. Jessica Higgin, Pro Se. Matt Sanativsar, Pro Se. Dustin Denega, Pro Se. Matthew Buster, Pro Se. Will Schwerma, Pro Se. Douglas Sollars, Pro Se. Jay Prasad, Pro Se.
Jackson Blain, Pro Se.
John Janosko, Pro Se.
Kellie Castillo, Oakland, CA, Pro Se.
Kelly Thompson, Pro Se.
Nicolas Gonzalez, Pro Se.
Esteban Gonzalez, Pro Se.
Shawn Widomen, Pro Se.
Peter A. Doder, Pro Se.
Alex Heine, Pro Se.
James Freeman, Pro Se.
Mayana Sparks, Pro Se.
Adam Davis, Pro Se.
Richard Milton, Pro Se.
Benjamin Murawski, Pro Se.
Ramona, Pro Se.
Greg Widomer, Pro Se.
James Foreman, Pro Se.
Ken Shen, Pro Se.
Pierre Daniels, Pro Se.
Phil Jenkins, Pro Se.
David Bahar, Pro Se.
Katherine Cavener, Pro Se.
Jeremy Oliviera, Pro Se.
Abby Dill, Pro Se.
Jessica Higgin, Pro Se.
Matt Sanativsar, Pro Se.
Dustin Denega, Pro Se.
Matthew Buster, Pro Se.
Will Schwerma, Pro Se.
Douglas Sollars, Pro Se.
Jay Prasad, Pro Se.
MODIFIED TEMPORARY RESTRAINING ORDER; ORDER REFERRING CASE TO MAGISTRATE JUDGE
William H. Orrick, United States District Judge
The pro se plaintiffs in this suit are individuals experiencing homelessness who currently reside at the Wood Street encampment in Oakland, California. The California Department of Transportation ("Caltrans"), which owns the land, posted notices on July 15, 2022 that on July 20, 2022 it would begin to clear out the encampment and remove individuals, possessions, and structures. I granted the plaintiffs’ motion for a temporary restraining order ("TRO") to prevent this removal until a hearing could be held. Now that this has occurred, I modify the TRO, the full terms of which appear at the end of this Order.
A modified TRO will remain in place for now. The plaintiffs have raised serious questions that the state will violate their constitutional rights by placing them in increased danger when it removes them at short notice from the encampment without adequate plans to provide shelter. This delay will ameliorate the potential constitutional violation by allowing the plaintiffs to better prepare for the removal and give municipalities and private organizations an opportunity to help them find other shelter and support. The parties are ordered to appear before Magistrate Judge Robert Illman to engage in discussions about a plan to provide adequate and safe shelter for anyone removed from the encampment.
A hearing is set for August 26, 2022, on dissolving the TRO. Caltrans has raised compelling safety and health concerns about the encampment. There have been nearly 200 fires there in two years, which have claimed one life, threatened others, and damaged structures. In light of the threat to life and the proximity of the encampment to other structures that could be damaged, Caltrans is within its rights to remove individuals from its property after the period necessary to safeguard the plaintiffs’ rights. This TRO is not a long-term prohibition on Caltrans's actions, it is a stopgap to prevent a particular violation of constitutional rights that results from the combination of lack of notice and failure to provide alternative shelter.
BACKGROUND
On July 18, 2022, the plaintiffs filed this suit and moved for a TRO. See Complaint ("Compl.") [Dkt. No. 1]; Motion for Temporary Restraining Order ("Mot.") [Dkt. No. 2]. The Complaint brings claims under 42 U.S.C. § 1983 , 42 U.S.C. § 1985 , and Monell for (1) violation of the Fourteenth Amendment's Due Process Clause under the state-created danger doctrine, violation of (2) the California Constitution's Due Process Clause under a state-created danger doctrine, (3) the Fourth Amendment's prohibition on unreasonable searches and seizures, (4) the Americans with Disabilities Act ("ADA"), (5) the Eighth Amendment's prohibition on cruel and unusual punishment, and (6) the First Amendment right to freedom of assembly. According to the Complaint and the plaintiffs’ sworn declarations, Caltrans posted notices starting July 15, 2022, stating that a closure of the encampment and removal of individuals, possessions, and structures would begin on July 20, 2022. See Compl. ¶ 1; Dkt. No. 2-2, Ex. N (Caltrans press release).
42 U.S.C. § 1983 creates a civil cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
42 U.S.C. § 1985 creates a civil cause of action for conspiracy to deprive individuals of civil rights.
A Monell claim permits liability against local governments for their unconstitutional official policies or practices. See Connick v. Thompson , 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011).
The same day that the lawsuit was filed, I issued a TRO to prevent closure of the encampment or removal of individuals, possessions, and structures. See Temporary Restraining Order ("TRO") [Dkt. No. 22]. I ordered that notice be given to the defendants. See id. at 1–2. And I set a hearing on whether to maintain the TRO for July 22, 2022, and permitted the defendants to file responsive briefs. Id. 2. The governmental defendants—Caltrans, the City of Oakland, Alameda County, and various officials of each of them—have now appeared and filed responses. I held a hearing on July 22, 2022.
LEGAL STANDARD
Federal Rule of Civil Procedure 65 governs TROs. The standard for issuing a TRO is the same as that for issuing a preliminary injunction, which requires the plaintiff to establish: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22, 129 S.Ct. 365. The Ninth Circuit has held that " ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." See Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1132 (9th Cir. 2011).
DISCUSSION
I. THE PROPER PARTIES
The plaintiffs named the Governor of California as a defendant. To the extent the TRO extended to him, it is DISSOLVED because there is no indication he has any sufficient involvement in the events at issue.
The City of Oakland and County of Alameda both ask that the TRO not run against them because Caltrans, not them, owns the land and will clear the encampment. See Dkt. Nos. 29, 35. Caltrans has represented, however, that both municipalities are providing some assistance in outreach and housing efforts, so dismissing them would be premature. And because they are uninvolved with the removals, the TRO imposes no prejudice on them in any event. While both raise concerns that the TRO will prevent them from carrying out homeless outreach and providing services, the plain terms of the TRO do not have that effect.
II. BASIS OF THE RESTRAINING ORDER
For the reasons that follow, I conclude that—on this slim record and early posture—the plaintiffs have shown "serious questions going to the merits," Cottrell , 632 F.3d at 1132, of their state-created danger claim that the defendants would force homeless individuals out of the Wood Street encampment with scant notice and no meaningful or articulated plans for sheltering them. The equities sharply favor the plaintiffs for a limited period to allow them time to adequately adjust and plan and for the defendants to attempt to provide shelter.
At the hearing, the plaintiffs requested that the TRO extend to land owned by the City of Oakland that abuts the Wood Street encampment land owned by Caltrans. The plaintiffs have not made a showing of imminent unconstitutional conduct by Oakland. Accordingly, the TRO does not extend to Oakland's property. The City also represented at the hearing that it makes offers of shelter to all individuals when it clears an encampment; it is, of course, bound by that representation.
The starting point is that Caltrans "shall have full possession and control of all state highways and all property and rights in property acquired for state highway purposes." Cal. Sts. & High. Code § 90. There is no indication that the plaintiffs have any legal right to reside on the land in question, which belongs to Caltrans. Even so, possession of government property does not leave the state free to violate constitutional rights of those on it.
The Fourteenth Amendment's Due Process Clause provides that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amdt. 14 § 1. Under the state-created danger doctrine, a due-process violation occurs "when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger." Patel v. Kent Sch. Dist. , 648 F.3d 965, 971–72 (9th Cir. 2011) (internal quotation marks and citations omitted). The doctrine also creates an exception to the "general rule" that "members of the public have no constitutional right to sue public employees who fail to protect them against harm inflicted by third parties" when the employees "affirmatively place the plaintiff in a position of danger, that is, where their actions create or expose an individual to a danger which he or she would not have otherwise faced." Hernandez v. City of San Jose , 897 F.3d 1125, 1133 (9th Cir. 2018) (internal quotation marks and citations omitted).
Here, there are "serious questions going to the merits," Cottrell , 632 F.3d at 1132, that the state's imminent removal of the plaintiffs, when done without sufficient warning or plans for shelter, would expose them to unjustifiable dangers they otherwise would not face. Cf. Patel , 648 F.3d at 971–72 ; Hernandez , 897 F.3d at 1133. The first notice of the removals that appears in the record was on July 15, 2022, giving them just a few days’ warning. See, e.g. , Dkt. No. 2-2, Ex. N. Yet many of the plaintiffs have planted deep roots at Wood Street. Many have been there for significant periods. See, e.g. , Dkt. No. 2-1, Ex. A at 5 (six years); id. , Ex. C at 14 (four years). They have erected shelters, acquired possessions, and built connections with others. See, e.g., id. , Ex. A at 5. The encampment not only offers shelter from elements but also facilities for hygiene. See, e.g., id. Removing the plaintiffs from this environment in a hurried manner without adequate plans to provide housing threatens to deprive them of their only sure source of shelter, safety, and the resources that come with it. Additionally, the Centers for Disease Control and Prevention guidance on COVID-19 among individuals experiencing homeless continues to be that "[i]f individual housing options are not available," governments should "allow people who are living unsheltered or in encampments to remain where they are." Dkt. No. 2-2, Ex. Q. Based on this constellation of concrete risks, there are serious questions about whether the state would have "left the [plaintiffs] in a situation that was more dangerous than the one in which [it] found [them]," Kennedy v. City of Ridgefield , 439 F.3d 1055, 1062 (9th Cir. 2006) (internal quotation marks and citation omitted), violating their constitutional rights.
At the hearing, Caltrans represented that its partners have put in place plans to provide individual rooms to all those with COVID-19. There has been no concrete information about this plan placed in the record, so I am not sufficiently confident it will mitigate the problem. Even if the plan were sufficient, individuals may be infectious without being aware of it. Centers for Disease Control and Prevention, Antibody Testing Guidelines, https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html (Jan. 24, 2022).
There is also no evidence to show that individuals at the encampment will be given adequate shelter if they are removed. Caltrans's press release touted that it is "coordinating with the City of Oakland and Alameda County so that the nearly 200 people estimated to be living at the site have access to shelter beds." Dkt. No. 2-2, Ex. N. But its brief relegates that issue to a footnote with little specificity. See Caltrans Opposition to the Mot. ("Oppo.") [Dkt. No. 30] 7 n.3. And the supporting declaration that Caltrans cites reveal that this "coordinati[on]" consists of several conversations in the three days leading up to posting the notice; they do not discuss any plans with specificity. See Declaration of Cheryl Chambers [Dkt. No. 32]; see also, e.g. , Oppo. 7 (discussing unspecified "notifi[cation of] various advocate groups"). Oakland and Alameda have filed their own briefs and have essentially disclaimed any responsibility other than providing outreach and working to get together some unspecified shelter. See Dkt. Nos. 29, 35. At the hearing, Caltrans was entirely unable to articulate any plan, let alone a concrete one.
Being exposed to safety and health threats by dint of governmental action with short notice meets the irreparable-injury element. Cf. Santa Cruz Homeless Union v. Bernal , 514 F. Supp. 3d 1136, 1145 (N.D. Cal. 2021).
The balance of equities sharply tilts in the plaintiffs’ favor for a period long enough to give them adequate notice of the action, time to make alternative plans, and time for the relevant governmental entities to help locate shelter (as they have committed to trying). This is so for the reasons explained in the analysis of the merits above: the plaintiffs, without time or dedicated shelter, will be exposed to obvious risks. The public-interest analysis mirrors this equitable one.
That said, at some point the equities will stop favoring the plaintiffs, which is why I am setting a hearing in a month about dissolving the TRO. Caltrans has shown that there are weighty public safety, health, and welfare concerns that expeditious removal of all individuals on the land will serve. There have been roughly 200 fires at the encampment just in the last two years. See, e.g. , Dkt. No. 30-3 ¶¶ 6–7. One in March 2022, killed two dogs and burned three RVs. Id. In April 2022, another fire left an individual in the encampment dead. See id. ¶¶ 8–11. And on July 11, 2022, a "massive" fire in a neighboring encampment damaged a bridge and burned several RVs. Id. ¶¶ 12–14. This last fire apparently was the catalyst for Caltrans wanting to clear the encampment. It has presented evidence that its bridges have previously been harmed by fires and it has real concerns that this will happen at Wood Street given its location near a highway. See Dkt. No. 30-1 ¶ 11. It has also illustrated that the encampment generates large amounts of hazardous waste, debris, and trash. Id. ¶ 6. And, in what it classifies as the gravest concern, there is a wastewater treatment plant near the encampment (and near the location of the most recent fire) with flammable oxygen plants that are necessary for its functioning. See Oppo. 6–7 (collecting citations). These are compelling interests, and the risk of recurrence rises as time goes by.
The most equitable way to balance these competing interests is to provide a meaningful period for the plaintiffs and others in the encampment to have forewarning of their removal, time to make plans, and time for advocacy organizations and governmental actors to assist them. I will exercise my equitable authority and inherent power to manage the docket to order the parties to engage in good-faith settlement discussions before Magistrate Judge Robert Illman. Providing that shelter would alleviate the constitutional concerns.
Regardless of how discussions with Judge Illman go, and regardless of the defendants’ plans for shelter, the defendants may file a motion to dissolve the TRO on August 12; the plaintiffs may oppose and, if they wish, request a preliminary injunction by August 19; the defendants may reply by August 24; and I will hear the motion on August 26 at 10:00 a.m. by videoconference.
III. THE REMAINING CLAIMS
The plaintiffs have not shown a likelihood of success on the merits, or serious questions going to the merits, of their other claims.
The most serious, aside from the state-created danger claim, are the property rights the plaintiffs assert. They fear that their possessions will be taken during the clearing and either destroyed or lost—in part because it has happened to some of the plaintiffs before during Caltrans removals. See Mot. 5–7. Caltrans, however, is under an injunction from a state-court class action settlement. Sanchez v. California Dep't of Trans. , 2020 WL 9456677 (Cal. Super. 2020). Among other things, it requires Caltrans to store property of $50 value or more, or property that appears to have personal value, for at least 60 days after it clears out an encampment and requires its return (so long as the property does not create a risk to employees). Between that judicial decree and the several weeks of delay that the plaintiffs will have under this Order to remove their own possessions, the plaintiffs have not made a sufficient showing of the risk of an unconstitutional seizure. Cf. Lavan v. City of Los Angeles , 693 F.3d 1022, 1030 (9th Cir. 2012) (discussing the conditions under which an unreasonable seizure of homeless individuals’ property occurs).
Next, the plaintiffs have not made a showing of success on their Eighth Amendment claim. That claim is based on the Ninth Circuit's decision in Martin v. City of Boise , 920 F.3d 584 (9th Cir. 2019). The court there held that the Eighth Amendment "preclude[s] the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter." Id. at 615. But the reason for that holding is that prohibiting homeless people from sleeping in the entire city without providing shelter beds would be to criminalize something involuntary and status-based. See id. at 615–618. Here, Caltrans solely seeks to prohibit the plaintiffs from living on a discrete property, so the concerns in Martin have not been shown to be present. Cf. id. at 617 (emphasizing that the holding did not create a constitutional right to sit, sleep, or lie in "any place" (internal quotation marks and citation omitted)).
Last, the plaintiffs did not base their TRO motion on the First Amendment or ADA claims. Because they are pro se, I have examined those claims and do not believe that there has been a showing of success on the merits sufficient to justify a TRO.
TEMPORARY RESTRAINING ORDER
The TRO at Dkt. No. 22 is MODIFIED as follows.
This modified TRO shall take effect immediately upon this Order's issuance.
This TRO applies to the California Department of Transportation, the City of Oakland, the County of Alameda, Toks Omishakin (Secretary of Caltrans), Libby Schaaf (Mayor of Oakland), Dina El Tawansy (Director of Caltrans District 4), Edward Reiskin (City Manager of Oakland), Susan Muranishi (Administrator of Alameda County), and BNSF Railway; their officers, agents, servants, employees, and attorneys; and persons who are in active concert or participation with the foregoing individuals and entities.
These individuals and entities are hereby RESTRAINED from proceeding with planned removal of persons, personal possessions, and structures from the Wood Street encampment; closing the Wood Street encampment; or otherwise removing homeless individuals from the Wood Street encampment. As used in this TRO, "Wood Street encampment" refers only to the area possessed by Caltrans, not the City of Oakland or other entities.
For clarity, this TRO does not prohibit particularized removals or other actions that are unrelated to the planned closure of the Wood Street encampment (such as lawfully removing possessions in the course of suppressing a fire or effectuating a lawful arrest for reasons unrelated to the planned closure). This TRO also does not prohibit providing services of any type to individuals in the encampment. If an area was cleared of individuals prior to the commencement of these proceedings and has no individuals currently residing there, this TRO does not prohibit Caltrans from taking actions regarding those areas, such as building structures.
A representative (or representatives) of (1) the plaintiffs (who may be an attorney from the East Bay Community Law Center), (2) the California Department of Transportation, (3) the City of Oakland, (4) Alameda County, and (5) BNSF Railway are ORDERED to appear before Magistrate Judge Robert Illman for good-faith discussions about providing individuals within the encampment with shelter and services after the closure. A concrete, detailed, and realistic plan for doing so would constitute grounds for the defendants to move to dissolve the TRO. Judge Illman will quickly set a scheduling call with the relevant parties.
A hearing on a motion to dissolve the TRO is SET for August 26, 2022, at 10:00 a.m., with the briefing schedule as laid out in the body of this Order. The hearing will also be treated as one on whether a preliminary injunction should not issue. The defendants are ORDERED TO SHOW CAUSE why one should not in the same briefing as dissolving the TRO.