Opinion
Case No. 04-055-E-LMB.
May 28, 2004
ORDER
Currently pending before the Court is Plaintiff Scott Shaw's Motion for Order of injunction Against Defendants (Docket No. 11). Pursuant to 28 U.S.C § 636(c), the parties in the instant action have consented to proceed before a U.S. Magistrate Judge. Consents (Docket Nos. 9, 14). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without a hearing.
I. FACTUAL BACKGROUND
The City of Preston, Idaho held a mayoral election in which one of the candidates, Neal Larson, ran on a platform which included a desire to remove the City of Preston Chief of Police. On January 12, 2004, Neal Larson ("Mayor Larson") was elected mayor. That same day, Saundra Hubbard, Kent Palmer, and Mike Kunz (collectively the "City Council"), as members of the City Council for the City of Preston, voted to discharge the City of Preston Chief of Police, Scott Shaw ("Plaintiff") from office. The decision of the City Council to discharge Plaintiff was memorialized in a letter from Mayor Larson to Plaintiff, which informed Plaintiff of his termination from employment as the Chief of Police.
Thereafter, on February 23, 2004, the City Council unanimously voted to reinstate Plaintiff as Police Chief, and place him on suspension, with pay, pending investigation into certain alleged misconduct. In accordance with his reinstatement, Plaintiff has been afforded his full salary continuously and without interruption, as well as other limited benefits which correspond to his position as police chief.
On January 30, 2004, Plaintiff filed a complaint seeking relief for wrongful termination of his employment in violation of his due process rights against the City of Preston, Mayor Larson, and the City Council (collectively the "Defendants"). Specifically, Plaintiff claims that he was discharged without a stated reason for removal, or an opportunity to respond to the action. Plaintiff claims that Defendants' actions to terminate Plaintiff were undertaken under color of law in violation of both the Fourteenth Amendment and 42 U.S.C. § 1983.
On February 25, 2004, Plaintiff's counsel was served with a Notice of On-going Administrative Investigation; Polygraph and Advice of Rights. Plaintiff was provided a Garrity warning and ordered to submit to a polygraph interview on February 27, 2004 regarding the narrow issues related to both the performance of his official duties, as well as his fitness for continued duty as a law enforcement officer. On February 26, 2004, Plaintiff's counsel advised counsel for Defendants that Plaintiff would not be participating in the polygraph interview.
On March 3, 2004, Mayor Larson and the City Council signed a Notice of Proposed Personnel Action-Termination and sent it to Plaintiff. The Notice of Proposed Personnel Action set out in detail the information upon which the City of Preston was relying upon in proposing to terminate Plaintiff. The letter also notified Plaintiff that the City of Preston had arranged for an Independent Hearing Board (the "Board") to review the allegations against Plaintiff as set forth in the Notice of Proposed Personnel Action. The Board was composed of three members: Pocatello Police Chief Ed Guthrie, American Falls Police Chief Jerry Hubbs, and Twin Falls County Sheriff Wayne Tousley. The City Council agreed to be bound by the final decision of the Board as it pertained to Plaintiff's employment. Plaintiff was advised of his right to have his legal counsel present at the hearing, and that the hearing would be an opportunity for Plaintiff to respond to the information contained in the Notice of Proposed Personnel Action, and that he could provide whatever information or documentation he wished the Board to consider. In a letter dated March 10, 2004, Plaintiff's counsel advised Defendants that Plaintiff declined to participate in the hearing.
On March 16, 2004, the Board convened in Pocatello, Idaho, considered all of the evidence, and unanimously found that a preponderance of the evidence sustained many of the allegations which had been brought against Plaintiff. The Board recommended that its report in whole, and all supporting attachments, be forwarded to both Michael Becar, Director of the Peace Officers Standards and Training Counsel ("POST"), and to POST council, for the purpose of initiating a hearing on the decertification of Plaintiff's credentials to serve as a law enforcement officer in the State of Idaho. The Board also recommended that the report, with its supporting attachments, be forwarded to the Office of the Attorney General for the State of Idaho for a criminal investigation.
On March 29, 2004, Plaintiff's counsel contacted Defendants' counsel and inquired as to whether the City would be sending a copy of the Board's report to POST. Naylor Affidavit, ¶ 2 (Docket No. 19). Defendants' counsel advised that he understood that the City of Preston had already forwarded said report to POST. Id. POST received the report and notified the City of Preston in a letter dated March 30, 2004, that it was initiating an investigation to decertify Plaintiff. Becar Affidavit, Ex. A (Docket No. 18).
On April 6, 2004, Plaintiff filed a Motion for Order of Injunction Against Defendants (Docket No. 11). Specifically, Plaintiff requests that the Court enjoin Defendants from reporting to POST, the results, or any parts, of the Board's hearing regarding Plaintiff's employment with the City of Preston, which was conducted on March 16, 2004.
In light of the fact that the Board's report had already been sent to POST on April 13, 2004, Defendants' counsel spoke with Plaintiff's counsel regarding the status of Plaintiff's pending Motion for Injunctive Relief (Docket No. 11). Naylor Affidavit, ¶ 3 (Docket No. 19). Plaintiff indicated that he did not intend to withdraw his motion. Id. The Court also notes that Plaintiff has not filed a Reply Brief to Defendants' Response in Opposition briefs (Docket Nos. 17, 20).
Despite his pending Motion for Injunctive Relief (Docket No. 11), on both April 30, 2004 and May 1, 2004, Plaintiff voluntarily met with POST investigator Ed Parker ("Parker") regarding the allegations contained in the Board's report. Supplemental Memorandum in Opposition, pp. 1-2 (Docket No. 20). Parker had spoken with Plaintiff on the telephone sometime during the week of April 19, 2004, in order to schedule a time to personally meet with and interview Plaintiff. Parker Affidavit, ¶ 3 (Docket No. 21). On both April 30, 2004 and May 1, 2004, Parker met with and interviewed Plaintiff for more than an eight-hour period. Id. at ¶ 4. Plaintiff met with Parker voluntarily and spoke with him specifically concerning the allegations contained in the Board's report dated March 16, 2004. Id.
II. MOTION FOR INJUNCTIVE RELIEF (Docket No. 11)
Plaintiff takes issue with the Board which, on March 16, 2004, decided certain matters relating to Plaintiff's employment as the Chief of Police. Plaintiff states that the Board "had no authority, moral, legal, or otherwise to make their ex-parte determination." Memorandum in Support, pp. 5-6 (Docket No. 12). As a result, Plaintiff has filed the pending Motion for Injunctive Relief as "injunction is the only proper remedy to prevent plaintiff from suffering irreparable harm to his 27 year career-long, good standing as a police officer in the State of Idaho, as well as allowing plaintiff to attempt to mitigate his damages from defendants' conduct, by his ongoing efforts to obtain alternative employment as a police officer in other jurisdictions." Motion for Injunctive Relief, p. 2 (Docket No. 11).A. Injunctive Relief Standard
Federal courts have authority to grant injunctive relief under Federal Rule of Civil Procedure 65. In the Ninth Circuit, courts are to apply the same standard whether ruling on a request for a temporary restraining order under Fed.R.Civ.P. 65(b), as is applied to a request for preliminary injunctive relief under Fed.R.Civ.P. 65(a). See Byron v. City of Wittier, 46 F.Supp.2d 1032 (C.D. Cal. 1998) (applying the standard for a preliminary injunction under International Jensen v. Metrosound U.S.A., 4 F.3d 819 (9th Cir. 1993) to a request for a temporary restraining order). In order to obtain a preliminary injunction, the plaintiff is required to demonstrate: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the Plaintiff, and (4) advancement of the public interest (in certain cases). Rodde v. Bonta, 357 F.3d 988, 994 (9th Cir. 2004). In essence, injunctive relief can be granted if the plaintiff demonstrates either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tip sharply in his favor. Id. These two alternatives represent extremes of a continuum, rather than two separate tests. Id. As a result, the greater the relative hardship to the parties seeking preliminary injunction, the less probability of success must be established by the party. In cases where the public interest is involved, the district court is to also examine whether the public interest favors the Plaintiff. Id.
The appropriate standard for injunctive relief, however, is not applicable when a motion is moot. Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978). Generally, a dispute is considered "moot" when it no longer presents a justiciable controversy because the issues involved have become academic or dead. Sigma Chi Fraternity v. Regents of University of Colo., 258 F.Supp. 515, 523 (D.C. Colo., 1966). Ultimately, any determination of whether Plaintiff is likely to prevail on the merits should be deferred if the Court determines that the potentially irreparable injury has already occurred. See generally Friends of the Earth, 576 F.2d at 1379.
To obtain injunctive relief, "`[a] reasonable showing' of a `sufficient likelihood' that plaintiff will be injured again is necessary." Kruse v. State of Hawai'i, 68 F.3d 331, 335 (9th Cir. 1995) (internal quotation marks omitted); see City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). For a plaintiff seeking injunctive relief to make a reasonable showing of a sufficient likelihood that he or she will be injured again (so as to show irreparable injury absent injunction) the likelihood of the injury recurring must be calculable. See Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998). "The likelihood of the injury recurring must be calculable and if there is no basis for predicting that any future repetition would affect the present plaintiffs, there is no case or controversy." Sample v. Johnson, 771 F.2d 1335, 1340 (9th Cir. 1985).
B. Analysis and Conclusion
Plaintiff requests that the Court enjoin Defendants from reporting to POST, the results, or any parts, of the hearing regarding Plaintiff's employment with the City of Preston, conducted by the Board on March 16, 2004. Motion for Injunctive Relief (Docket No. 11). The Court finds, however, that Plaintiff's Motion for Injunctive Relief is moot because the Board's report has already been sent to POST. Memorandum in Opposition, pp. 6-7 (Docket No. 17). As set forth in the Affidavits of Michael N. Becar (Docket No. 18) and Kirtlan G. Naylor (Docket No. 19), the information sought to be enjoined had already been reported to POST at the time Plaintiff's pending motion was filed. Because the acts sought to be enjoined have already occurred and cannot now be prevented by a Court order against Defendants, and since an injunction cannot undo what has already been done, the Court denies Plaintiff's Motion for Injunctive Relief (Docket No. 11) as moot. See Friends of the Earth, 576 F.2d at 1379 (where the activity sought to be enjoined has already occurred, and the Court cannot undo what has already been done, the action is then moot). At this point, it is impossible to un-ring a bell which has been rung.
The Court also notes that Plaintiff is now voluntarily cooperating, and participating, with the investigation which is being conducted by POST. Although the Court cannot prevent an act which has already been completed, the Court will grant the request for injunctive relief to the limited extent that the report shall be sealed by the investigating authorities and not further disseminated to other parties, entities or authorities absent agreement of the parties and further order of the court. This order does not prevent the mutually cooperative and voluntary investigation from being completed, but rather it only precludes further distribution or publication of the report in question pending the conclusion of this action or further order of the Court.
III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Order of Injunction Against Defendants (Docket No. 11) is hereby DENIED in part and GRANTED in part. The Court will not preclude POST from relying upon the Board's March 16, 2004 report in conducting its investigation, however, Defendants shall not further distribute or publicize the Board's March 16, 2004 report to any other entity pending the conclusion of this action, or further order of the Court.
2. The hearing scheduled to commence on Wednesday June 9, 2004 at 2:00 P.M. is VACATED.