Hill-Colbert v. City of Roseville

• Court: District Court, E.D. California
• Decided: November 1, 2022
• Docket: 2:22-cv-01651
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MARCUS HILL-COLBERT, on behalf No. 2:22-cv-01651 WBS DB of himself and a class of 13 similarly situated persons, 14 Plaintiff, ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION 15 v. 16 CITY OF ROSEVILLE, ROSEVILLE POLICE DEPARTMENT, TYLER 17 CANTLEY, and DOES 1 to 20, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Marcus Hill-Colbert brought this action 22 against the City of Roseville (“City”), Roseville Police 23 Department, Officer Tyler Cantley, and Does 1 to 20 seeking 24 injunctive relief and damages for violations of the Fourth and 25 Fourteenth Amendments under 42 U.S.C. § 1983; the California 26 Constitution Article I, Section 7(a); and the Tom Bane Civil 27 Rights Act under California Civil Code § 52.1. (Compl. (Docket 28 No. 1).) Plaintiff now moves for a preliminary injunction, 1 seeking to enjoin enforcement of Roseville Municipal Code (“RMC”) 2 § 8.02.316 on the basis that it is a facially unconstitutional 3 ordinance which violates procedural due process rights protected 4 by the Fourteenth Amendment. (Mot. for Prelim. Inj. (Docket No. 5 4-1).). 6 I. Factual History 7 On August 29, 2022, at roughly 6:55am, plaintiff was 8 sitting in a chair in Weber Park in Roseville, California. 9 (Compl. ¶¶ 14-15.) Defendant Tyler Cantley, a social services 10 officer employed by defendant City of Roseville, approached 11 plaintiff and stated that there had been complaints about alcohol 12 and marijuana use in the park. (Id. ¶¶ 16-18.) Plaintiff told 13 Officer Cantley that he had not been drinking or smoking. (Id. ¶ 14 19.) However, Officer Cantley observed a broken beer bottle near 15 plaintiff’s chair.1 (Id. ¶ 20.) Plaintiff denied that it was 16 his beer. (Id. 21.) Officer Cantley then asked plaintiff for 17 his identification. (Id. ¶ 22.) Plaintiff complied and gave 18 Officer Cantley a copy of his identification card. (Id. ¶ 23.) 19 Officer Cantley briefly left with plaintiff’s identification 20 card. (Id. ¶ 24.) 21 When Officer Cantley returned, he gave plaintiff a 22 “City Property Exclusion Notice.” 2 (Id. ¶¶ 26-27.) The 23 1 The parties dispute how close the beer bottle was to 24 plaintiff. (See Compl. ¶ 20; Defs.’ Opp’n. at 6 (Docket No. 5).)

25 2 Plaintiff has requested that the court take judicial notice of two ordinances: RMC § 8.02.316 and RMC § 8.02.200. 26 (Docket No. 4-3.) Defendants have requested that the court take 27 judicial notice of the same two ordinances as well as RMC § 8.02.280, RMC § 8.02.290, and RMC § 8.02.315. (Docket No. 5-3.) 28 An electronic copy of the ordinances can be found online at 1 exclusion notice indicated that Officer Cantley had observed 2 plaintiff engage in four violations: (1) possession of alcohol in 3 a city park, in violation of RMC § 8.02.280; (2) possession of a 4 glass container in a city park, in violation of RMC § 8.02.290; 5 (3) camping in a city park, in violation of RMC § 8.02.200(A)(4); 6 and (4) 374.4(A)PC.3 (Id. ¶¶ 28-29.) The notice stated:

7 You are herby notified pursuant to Roseville Municipal Code 8.02.3154 that you are excluded from entering or 8 remaining on any City of Roseville Property for the 9 time period outlined below. This exclusion begins immediately upon service of this notice and ends at 10 sunrise on the day following the final date of this notice. You may be excluded from City Property whether 11 or not you have been cited, arrested, or convicted of any crime. You have the right to appeal this exclusion 12 in writing to the Office of the Chief of Police at any 13 point during the exclusion period. Entering or remaining on any city property during the exclusion 14

15 . Judicial notice may be taken of a fact “not subject to reasonable 16 dispute in that it is capable of accurate and ready determine by resort to sources whose accuracy cannot reasonably be 17 questioned.” Fed. R. Evid. 201. The ordinances are proper 18 subjects for judicial notice. See Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977) (“[C]ity ordinances fall within the 19 category of ‘common knowledge’ and are therefore proper subjects for judicial notice.”). The requests are therefore granted. 20 3 Officer Cantley wrote “374.4(A)PC” in the “Other” 21 section of the violations section of the exclusion order without 22 explanation as to what conduct violates this ordinance. (Compl. ¶ 28.) The court believes “374.4(A)PC” refers to Cal. Penal Code 23 § 374.4, which makes it unlawful to litter.

24 4 RMC § 8.02.315 provides: “Any person who interferes with any city employee in the performance of the employee’s 25 duties, or who by his or her conduct, interferes with the use of a park or other park facility by any other person, or who has 26 committed any public offense within a park or other park 27 facility, shall leave the park or park facility upon request by any city employee.” RMC § 8.02.315(A). 28 1 period may result in your arrest for violation of RMC 8.02.316(G). 2 3 (Compl. ¶¶ 28, 31) (emphasis in original). 4 RMC § 8.02.316 provides, in relevant part: “Any parks, 5 recreation and libraries employee or police officer may exclude 6 any person who, while present in a park or park facility, 7 violates any applicable ordinance, statute, posted rule or 8 regulation, or city policy after being put on notice of same.” 9 RMC § 8.0.216(A). “Park” includes “any park, dog park, town 10 square, library, museum, stream bed area, bicycle trail, open 11 space, or other facility owned or operated by the city for park 12 or recreation purposes.” RMC § 8.02.200. The length of the 13 exclusion period depends on the number of infractions or 14 arrests.5 See RMC § 8.02.316(B). Exclusion from City parks and 15 park facilities is immediate upon receipt of the exclusion 16 notice. See RMC § 8.02.316(D). “A person receiving a notice of 17 exclusion may appeal the exclusion in writing to the director or 18 chief of police . . . for a waiver or modification of the 19 exclusion for good cause.” RMC 8.02.316(E). Anyone who enters a 20 park of park facility while excluded can be charged with an 21 infraction or misdemeanor. See RMC § 8.02.316(G). 22 Plaintiff was excluded from City parks and park 23 facilities for 30 days because he was cited for multiple 24 violations. (Compl. ¶¶ 28, 32.) However, because of the text of 25

26 5 For example, a single infraction of park rules or ordinances results in a one-day exclusion, whereas three or more 27 arrests or citations for nonviolent crimes or infractions or any arrest for any violent crime results in a one-year exclusion. 28 See RMC § 8.02.316(B)(1), (4). 1 the exclusion notice, plaintiff believed he was excluded from any 2 City property. (Id. ¶ 34.) To avoid violating his exclusion, 3 he stayed away from all City property, including cooling stations 4 during a record-breaking heatwave. (Id. ¶ 34.) Plaintiff 5 explains that he found his exclusion particularly harmful because 6 he is homeless. (Id. ¶ 34.) 7 Plaintiff did not appeal his exclusion. (Defs.’ Opp’n. 8 at 7 (Docket No. 5).) However, he did present a Government Claim 9 to the City arguing that the beer bottle was not his. (Id.) The 10 City thereafter dismissed his exclusion order. (Id.) 11 II. Discussion 12 Injunctive relief is “an extraordinary remedy, one that 13 should not be granted unless the movant, by a clear showing, 14 carries the burden of persuasion.” Mazurek v. Armstrong, 520 15 U.S. 968, 972 (1997) (citation omitted). To obtain a preliminary 16 injunction, the moving party must establish (1) it is likely to 17 succeed on the merits, (2) it is likely to suffer irreparable 18 harm in the absence of preliminary relief, (3) the balance of 19 equities tips in its favor, and (4) an injunction is in the 20 public interest. Winter v. Nat. Res. Def. Council, Inc., 555 21 U.S. 7, 20 (2008); Humane Society of the U.S. v. Gutierrez, 558 22 F.3d 896, 896 (9th Cir. 2009). “A plaintiff must make a showing 23 on all four prongs to obtain a preliminary injunction.” A 24 Woman’s Friend Pregnancy Res. Clinic v. Becerra, 901 F.3d 1166, 25 1167 (9th Cir. 2018) (emphasis in original) (quotation marks and 26 citations omitted). 27 A. Irreparable Harm 28 “[A] preliminary injunction will not be issued simply 1 to prevent the possibility of some remote future injury.” 2 Winter, 555 U.S. at 21. “Speculative injury does not constitute 3 irreparable injury sufficient to warrant granting a preliminary 4 injunction.” Caribbean Marine Servs. Co., v. Baldrige, 844 F.2d 5 668, 674 (9th Cir. 1988) (citation omitted). “A plaintiff must 6 do more than merely allege imminent harm sufficient to establish 7 standing; a plaintiff must demonstrate immediate threatened 8 injury as a prerequisite to preliminary injunctive relief.” 9 (Id.) (emphasis omitted) (citing L.A. Coliseum v. Nat’l Football 10 League, 634 F.2d 1197, 1201 (9th Cir. 1980)); see also Associated 11 Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equity, 920 12 F.2d 1401, 1410 (9th Cir. 1991) (“[T]he party seeking the 13 injunction must demonstrate that it will be exposed to some 14 significant risk of irreparable injury.”). 15 In Hodgers-Durgin v. de la Vina, the Ninth Circuit 16 discussed both the Article III “case or controversy” requirement 17 and the irreparable harm requirement necessary to obtain 18 injunctive relief. 199 F.3d 1037, 1041-1043 (9th Cir. 1999). In 19 Hodgers-Durgin, the two named plaintiffs were each stopped once 20 by Border Patrol agents for “engag[ing] in entirely innocent 21 conduct” while driving near the border. Id. at 1039, 1041. 22 Plaintiffs argued that their stops violated the Fourth Amendment 23 and sought an injunction prohibiting Border Patrol agents from 24 further engaging in the allegedly unconstitutional practices. 25 Id. at 1039. While the court did not affirmatively determine 26 whether plaintiffs satisfied the “case or controversy” 27 requirement, it distinguished the case from Lyons because 28 “plaintiffs did nothing illegal to prompt the stops by the Border 1 Patrol.” Id. at 1041 (citing City of Los Angeles v. Lyons, 461 2 US. 95, 105 (1983) (suggesting plaintiff’s misconduct led to the 3 violation of his constitutional rights); see also Lane v. 4 Williams, 455 U.S. 624, 633, n.13 (1982) (“Respondents themselves 5 are able--and indeed required by law--to prevent” violating the 6 law). 7 The Hodgers-Durgin court found that plaintiffs were not 8 entitled to equitable relief because they failed to show an 9 irreparable injury. Id. at 1042; see Lyons, 461 US. at 111 10 (articulating that an “equitable remedy is unavailable absent a 11 showing of irreparable injury, a requirement that cannot be met 12 where there is no showing of any real or immediate threat that 13 the plaintiff will be wronged again--a likelihood of substantial 14 and immediate irreparable injury”) (quotation and citation 15 omitted). Specifically, the court held that there was no 16 likelihood of future injury to the named plaintiffs because “it 17 [wa]s not sufficiently likely that [plaintiffs] w[ould] again be 18 stopped by the Border Patrol” given that each plaintiff had only 19 been stopped once. Id. at 1044. 20 Here, plaintiff is not currently subject to exclusion 21 from the City’s parks or park facilities because the City 22 rescinded plaintiff’s exclusion order. (See Defs.’ Opp’n. at 7.) 23 Plaintiff has not shown that he is likely to be issued an 24 exclusion notice again. Like the plaintiffs in Hodgers-Durgin, 25 plaintiff has only been issued an exclusion order once. 26 Plaintiff’s arguments to the contrary are unavailing. Plaintiff 27 alleges that he did not violate any ordinance when he was 28 excluded from the park. (See Hill-Colbert Decl. ¶¶ 6-8 (Docket 1 No. 4-2).) Taking plaintiff at his word that he did not commit 2 any violations, a wrongful issuance of an exclusion order for 3 engaging only in lawful conduct does not demonstrate that 4 plaintiff is likely to be issued another exclusion order in the 5 future. See Hodgers-Durgin, 199 F.3d at 1041-42. 6 Plaintiff also argues that he is likely to be issued an 7 exclusion order again because one of the grounds for exclusion, 8 for which he was already cited, is camping in the park. If 9 indeed just sitting in the park as plaintiff was at the time he 10 was cited constituted camping as the City interprets it, 11 plaintiff might have a good argument that he is likely to be 12 issued another exclusion order. However, the City of Roseville 13 has overcome that challenge by recently amending the park 14 exclusion notice to remove camping as one of the bases for 15 exclusion. Because plaintiff has not presented evidence that he 16 is likely to receive another exclusion notice, he has failed to 17 show that he is at risk of immediate and irreparable harm.6 See 18 Hodgers-Durgin, 199 F.3d at 1042. 19 In his reply, plaintiff included six new declarations 20 from other individuals who were issued exclusion orders. (Docket 21 Nos. 10-1, 10-2, 10-3, 10-4, 10-5, and 10-6.) Neither the fact 22

23 6 Plaintiff suggests that his status as a homeless person is connected to irreparable injury. (See Mot. for Prelim. Inj. 24 at 9.) The court does not doubt that exclusion from parks and park facilities is more burdensome to a homeless person than to 25 housed persons. However, that the impact of the exclusion order may be more burdensome does not mean that plaintiff has shown he 26 is likely to be issued an exclusion order again. Plaintiff has 27 only received one exclusion order and that exclusion order was voluntarily rescinded by the City. (See Defs.’ Mot. at 8.) 28 1 that others have been issued exclusion notices nor the 2 circumstances surrounding those orders satisfy plaintiff’s burden 3 of showing a likelihood of future irreparable harm to him. Nor 4 is that burden satisfied by plaintiff’s expressed intent to seek 5 class certification. No class has yet been certified, and even 6 if plaintiff will be able to identify a certifiable class in this 7 case “injunctive relief is not available based on alleged 8 injuries to unnamed members of a proposed class.” Hodgers- 9 Durgin, 199 F.3d at 1045. 10 Finally, plaintiff suggests that he has demonstrated 11 irreparable harm because he has shown a “constitutional 12 infringement.” See Associated Gen. Contractors of Cal., Inc. v. 13 Coalition for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991) 14 (“An alleged constitutional infringement will often alone 15 constitute irreparable harm.”) (quoting Goldie’s Bookstore, Inc. 16 v. Superior Court of Cal., 739 F.2d 466, 472 (9th Cir. 1983) 17 (quotation omitted)). While plaintiff may well show likelihood 18 of success on the merits for a constitutional infringement, a 19 constitutional infringement satisfies the irreparable harm 20 requirement where there is an “immediate threatened injury” which 21 results from the constitutional infringement. See Caribbean 22 Marine Servs. Co., 844 F.2d at 674. As the court has already 23 discussed, plaintiff has not demonstrated that he is likely to be 24 issued another exclusion order. Because plaintiff does not face 25 an ongoing threat of a constitutional infringement, the alleged 26 constitutional infringement alone is insufficient to demonstrate 27 irreparable harm. 28 Plaintiff “must make a showing on all four prongs to ee ee nnn nen OEE EI OS IE ES EI I eee

1 obtain a preliminary injunction.” A Woman’s Friend Pregnancy 2 | Res. Clinic, 901 F.3d at 1167 (quotation marks and citations 3 omitted). Plaintiff has failed to show that he is likely to 4 suffer irreparable harm absent an injunction, and therefore, 5 | plaintiff’s motion for a preliminary injunction must be denied. 6 IT IS THEREFORE ORDERED that plaintiff’s motion for a 7 | preliminary injunction (Docket No. 4-1) be, and the same hereby 8 is, DENIED. . = ak. a bean, (hi. 9 Dated: November 1, 2022 WILLIAMB SHUBB ©. © 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10