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WESTERN DISTRICT OF WASHINGTON 7 RICHARD ARTHUR KIRKHAM, 8 Plaintiff, Case No. C24-1625-DGE-SKV 9 v. REPORT AND RECOMMENDATION 10 CITY OF BELLINGHAM, et al., 11 Defendants. 12
14 Plaintiff Richard Arthur Kirkham proceeds pro se in this 42 U.S.C. § 1983 civil rights 15 action. Now pending before the Court is Plaintiff’s Motion for Injunction. Dkt. 12. Defendants 16 oppose the motion. Dkt. 17. The Court, having considered the motion, papers filed in support 17 and opposition, and the remainder of the record, recommends Plaintiff’s request for injunctive 18 relief be DENIED. 20 Plaintiff filed this lawsuit while being held as a pretrial detainee at Whatcom County Jail 21 and awaiting trial on unspecified criminal charges pending against him in Whatcom County 22 Superior Court. See Dkts. 1, 4 & 6-1. He has since been transferred to the Interim Work Center 23 in Bellingham, Washington. See Dkt. 24. 1 Plaintiff raises more than fifty claims against named Defendants City of Bellingham, 2 Bellingham Police Department (BPD) Chief Rebecca Mertzig, Deputy Chief Donald Almer, 3 Sergeant Jeremy Harper, Corporals Shaun Nelson and John Doe Haas, K9 Officer Jeremy 4 Woodward, and Officers Kaige Edgard, Nicolaus Sturlaugson, Steven Longbottom, Dhillon
5 Jobandeep, Avery Lyons, John Doe Bean, and David Johnson. Dkt. 4. His claims and requests 6 for relief relate to events leading up to and occurring on the date of his arrest by BPD officers on 7 September 28, 2023. See id. at 16-31. He alleges, for example, that Defendants falsified reports 8 in order to justify activating a SWAT team to effectuate his arrest, and the use of excessive force 9 resulting in grievous bodily injury and disfigurement. See id. He requests as relief a declaratory 10 judgment providing that the actions taken in relation to his arrest violated his constitutional 11 rights, an injunction preserving as evidence body camera and police vehicle video and audio 12 recordings and related documents, reports, and text messages, and compensatory and punitive 13 damages. Id. at 28-31. 14 The Court issued an Order to Show Cause, raising questions as to the viability of
15 Plaintiff’s proposed claims, and, after Plaintiff submitted a response, served the Complaint on the 16 named Defendants. Dkts. 7, 10-11. The Court also twice denied Plaintiffs’ motions for 17 appointment of counsel, and directed the filing of a response to the motion for injunctive relief. 18 Dkts. 6, 8, 12 & 15. 20 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 21 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain preliminary injunctive relief, a 22 plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of suffering 23 irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his 1 favor; and (4) that an injunction is in the public interest. Id. at 20. Alternatively, “‘if a plaintiff 2 can only show that there are serious questions going to the merits – a lesser showing than 3 likelihood of success on the merits – then a preliminary injunction may still issue if the balance 4 of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are satisfied.’”
5 Alliance for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoted sources 6 omitted). Preliminary injunctive relief should not be granted unless a movant, “‘by a clear 7 showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) 8 (quoted source omitted; emphasis added by Supreme Court). 9 Injunctive relief can be prohibitory or mandatory. A mandatory injunction “orders a 10 responsible party to take action,” while a prohibitory injunction “prohibits a party from taking 11 action and preserves the status quo” while litigation is pending. Arizona Dream Act Coal. v. 12 Brewer, 757 F.3d 1053, 1060 (9th Cir. 2014) (internal quotation marks and quoted source 13 omitted). Mandatory injunctions are particularly disfavored, and, in general, “‘are not granted 14 unless extreme or very serious damage will result and are not issued in doubtful cases or where
15 the injury complained of is capable of compensation in damages.’” Marlyn Nutraceuticals, Inc. 16 v. Mucas Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoted sources omitted). 17 Where a mandatory injunction is sought, a party “must establish that the law and facts clearly 18 favor her position, not simply that she is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 19 733, 740 (9th Cir. 2015) (en banc). 21 Plaintiff asserts that, on January 24, 2024, he reviewed body worn camera footage of his 22 arrest, and “discovered that unknown Defendants and/or their agents have tampered with, 23 altered, and/or destroyed evidence which prove his claims.” Dkt. 12 at 2; Dkt. 13, ¶¶7, 9. He 1 asserts that, while the footage accurately portrays some of the events on the day of his arrest, it 2 has also been “altered using ‘deep fake’ software and/or video editing software[]” to remove 3 portions of the footage supporting his claim. Dkt. 13, ¶¶10-14. He asserts that the footage 4 nonetheless proves his excessive force claims, that the evidence tampering will be determined
5 through professional examination, that tampering is likely to continue without the Court’s 6 intervention, and that he fears for his safety. See Dkts. 12-13. 7 Plaintiff asks for an injunction ordering Defendants and/or their agents to immediately 8 compile and preserve all video footage, police communications, personnel information, and 9 screenshots of file histories, user access, and specific file path designations. Dkt. 12 at 7. He 10 specifically requests that the Court issue an order directing Defendants to “‘create new 11 documents.’” Dkt. 25 at 8 (“Plaintiff’s requested relief includes requiring Defendants to create 12 screenshots and gather/compile information that is not independently complete, . . . that is, 13 Plaintiff requests Defendants be ordered to ‘create new documents.’”). Defendants argue that 14 Plaintiff fails to meet his burden of demonstrating his entitlement to preliminary injunctive relief.
15 The Court, for the reasons discussed below, agrees with Defendants.1 16 In asking that Defendants take specific actions, Plaintiff seeks mandatory injunctive 17 relief. He does not, however, demonstrate that the law and facts clearly favor his position. 18 Further, even if construed as seeking a prohibitory injunction, Plaintiff fails to show either a 19 20
1 Amongst other arguments, Defendants deny that any evidence has been altered or tampered 21 with, and assert that the evidence has been maintained in accordance with State and BPD retention policies, that all body worn videos are saved and stored by a third-party company, and that any access to 22 those videos is recorded in an audit log. See Dkt. 18, ¶¶3-5, Exs. A-B. Plaintiff argues that the declaration submitted in support of these contentions, see id., should be disregarded because it is not 23 based on firsthand knowledge. The Court finds no need to consider Defendants’ declaration in ruling on the motion for preliminary injunctive relief, and thus no need to address this argument.
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WESTERN DISTRICT OF WASHINGTON 7 RICHARD ARTHUR KIRKHAM, 8 Plaintiff, Case No. C24-1625-DGE-SKV 9 v. REPORT AND RECOMMENDATION 10 CITY OF BELLINGHAM, et al., 11 Defendants. 12
14 Plaintiff Richard Arthur Kirkham proceeds pro se in this 42 U.S.C. § 1983 civil rights 15 action. Now pending before the Court is Plaintiff’s Motion for Injunction. Dkt. 12. Defendants 16 oppose the motion. Dkt. 17. The Court, having considered the motion, papers filed in support 17 and opposition, and the remainder of the record, recommends Plaintiff’s request for injunctive 18 relief be DENIED. 20 Plaintiff filed this lawsuit while being held as a pretrial detainee at Whatcom County Jail 21 and awaiting trial on unspecified criminal charges pending against him in Whatcom County 22 Superior Court. See Dkts. 1, 4 & 6-1. He has since been transferred to the Interim Work Center 23 in Bellingham, Washington. See Dkt. 24. 1 Plaintiff raises more than fifty claims against named Defendants City of Bellingham, 2 Bellingham Police Department (BPD) Chief Rebecca Mertzig, Deputy Chief Donald Almer, 3 Sergeant Jeremy Harper, Corporals Shaun Nelson and John Doe Haas, K9 Officer Jeremy 4 Woodward, and Officers Kaige Edgard, Nicolaus Sturlaugson, Steven Longbottom, Dhillon
5 Jobandeep, Avery Lyons, John Doe Bean, and David Johnson. Dkt. 4. His claims and requests 6 for relief relate to events leading up to and occurring on the date of his arrest by BPD officers on 7 September 28, 2023. See id. at 16-31. He alleges, for example, that Defendants falsified reports 8 in order to justify activating a SWAT team to effectuate his arrest, and the use of excessive force 9 resulting in grievous bodily injury and disfigurement. See id. He requests as relief a declaratory 10 judgment providing that the actions taken in relation to his arrest violated his constitutional 11 rights, an injunction preserving as evidence body camera and police vehicle video and audio 12 recordings and related documents, reports, and text messages, and compensatory and punitive 13 damages. Id. at 28-31. 14 The Court issued an Order to Show Cause, raising questions as to the viability of
15 Plaintiff’s proposed claims, and, after Plaintiff submitted a response, served the Complaint on the 16 named Defendants. Dkts. 7, 10-11. The Court also twice denied Plaintiffs’ motions for 17 appointment of counsel, and directed the filing of a response to the motion for injunctive relief. 18 Dkts. 6, 8, 12 & 15. 20 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 21 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain preliminary injunctive relief, a 22 plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of suffering 23 irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his 1 favor; and (4) that an injunction is in the public interest. Id. at 20. Alternatively, “‘if a plaintiff 2 can only show that there are serious questions going to the merits – a lesser showing than 3 likelihood of success on the merits – then a preliminary injunction may still issue if the balance 4 of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are satisfied.’”
5 Alliance for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoted sources 6 omitted). Preliminary injunctive relief should not be granted unless a movant, “‘by a clear 7 showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) 8 (quoted source omitted; emphasis added by Supreme Court). 9 Injunctive relief can be prohibitory or mandatory. A mandatory injunction “orders a 10 responsible party to take action,” while a prohibitory injunction “prohibits a party from taking 11 action and preserves the status quo” while litigation is pending. Arizona Dream Act Coal. v. 12 Brewer, 757 F.3d 1053, 1060 (9th Cir. 2014) (internal quotation marks and quoted source 13 omitted). Mandatory injunctions are particularly disfavored, and, in general, “‘are not granted 14 unless extreme or very serious damage will result and are not issued in doubtful cases or where
15 the injury complained of is capable of compensation in damages.’” Marlyn Nutraceuticals, Inc. 16 v. Mucas Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoted sources omitted). 17 Where a mandatory injunction is sought, a party “must establish that the law and facts clearly 18 favor her position, not simply that she is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 19 733, 740 (9th Cir. 2015) (en banc). 21 Plaintiff asserts that, on January 24, 2024, he reviewed body worn camera footage of his 22 arrest, and “discovered that unknown Defendants and/or their agents have tampered with, 23 altered, and/or destroyed evidence which prove his claims.” Dkt. 12 at 2; Dkt. 13, ¶¶7, 9. He 1 asserts that, while the footage accurately portrays some of the events on the day of his arrest, it 2 has also been “altered using ‘deep fake’ software and/or video editing software[]” to remove 3 portions of the footage supporting his claim. Dkt. 13, ¶¶10-14. He asserts that the footage 4 nonetheless proves his excessive force claims, that the evidence tampering will be determined
5 through professional examination, that tampering is likely to continue without the Court’s 6 intervention, and that he fears for his safety. See Dkts. 12-13. 7 Plaintiff asks for an injunction ordering Defendants and/or their agents to immediately 8 compile and preserve all video footage, police communications, personnel information, and 9 screenshots of file histories, user access, and specific file path designations. Dkt. 12 at 7. He 10 specifically requests that the Court issue an order directing Defendants to “‘create new 11 documents.’” Dkt. 25 at 8 (“Plaintiff’s requested relief includes requiring Defendants to create 12 screenshots and gather/compile information that is not independently complete, . . . that is, 13 Plaintiff requests Defendants be ordered to ‘create new documents.’”). Defendants argue that 14 Plaintiff fails to meet his burden of demonstrating his entitlement to preliminary injunctive relief.
15 The Court, for the reasons discussed below, agrees with Defendants.1 16 In asking that Defendants take specific actions, Plaintiff seeks mandatory injunctive 17 relief. He does not, however, demonstrate that the law and facts clearly favor his position. 18 Further, even if construed as seeking a prohibitory injunction, Plaintiff fails to show either a 19 20
1 Amongst other arguments, Defendants deny that any evidence has been altered or tampered 21 with, and assert that the evidence has been maintained in accordance with State and BPD retention policies, that all body worn videos are saved and stored by a third-party company, and that any access to 22 those videos is recorded in an audit log. See Dkt. 18, ¶¶3-5, Exs. A-B. Plaintiff argues that the declaration submitted in support of these contentions, see id., should be disregarded because it is not 23 based on firsthand knowledge. The Court finds no need to consider Defendants’ declaration in ruling on the motion for preliminary injunctive relief, and thus no need to address this argument. 1 likelihood of success on or serious questions going to the merits.2 2 As an initial matter, and as Defendants observe, Plaintiff admits that significant portions 3 of the video evidence he reviewed do not support his allegations in this lawsuit. See Dkt. 13, 4 ¶¶10-14 (“The beginning of the footage I reviewed began exactly as I said it would[.] . . . The
5 footage from that point has been altered using ‘deep fake’ software and/or video editing 6 software.”). He contends, for example, that the footage has been altered to remove portions of 7 the video showing “me not resisting or struggling”, and “Defendant Woodward forcing K-9 8 Rudy to attack me while other officers held me[.]” Id., ¶¶12-13. 9 Plaintiff does not, moreover, identify support for his allegation of evidence tampering. 10 Instead, Plaintiff merely asserts that the evidence has been altered by unknown persons, and that 11 he will be able to prove this assertion through “professional examination” of various factors. 12 See, e.g., id., ¶¶12-19. Plaintiff’s unsupported, conclusory assertions do not satisfy the threshold 13 inquiry necessary to allow the Court to grant the extraordinary relief requested. See generally 14 Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (“Likelihood of
15 success on the merits is the most important Winter factor; if a movant fails to meet this threshold 16 inquiry, the court need not consider the other factors in the absence of serious questions going to 17 the merits.”) (cleaned up and internal citations omitted). 18 Plaintiff also fails to demonstrate a likelihood he will suffer irreparable harm in the 19 absence of the preliminary relief. “At a minimum, a plaintiff seeking preliminary injunctive 20 relief must demonstrate that it will be exposed to irreparable harm.” Caribbean Marine Servs. 21 Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). “Speculative injury does not constitute 22 2 It should also be noted that, given the greater showing required, courts have declined to apply 23 the alternative, “serious questions” preliminary injunctive relief standard to cases involving mandatory injunctions. See, e.g., Maney v. Brown, 516 F. Supp. 3d 1161, 1172 n.8 (D. Or. 2021); P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1126, 1135 (C.D. Cal. 2015). 1 irreparable injury sufficient to warrant granting preliminary relief. A plaintiff must do more than 2 merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate 3 immediate threatened injury as a prerequisite to preliminary injunctive relief.” Id. (internal and 4 other citations omitted).
5 Plaintiff here asserts that the alleged evidence tampering is likely to continue without the 6 Court’s intervention, that he lacks the means to prove the tampering occurred or to hire an 7 attorney, and that he fears for his life and safety. See Dkts. 12-13. Again, however, Plaintiff 8 fails to identify support for his allegation of evidence tampering, and relies on his mere assertion 9 the tampering occurred. He likewise explains his fear as based on his contention of evidence 10 tampering. Dkt. 13, ¶17 (“Since the moment I viewed the clearly edited video footage I have 11 been in fear for my life and safety: If officers are willing to tamper with evidence to cover their 12 criminal assaults, what will they do to me, or have done to me, while I am in custody?”). 13 It further remains that Defendants have an existing obligation to preserve evidence. See 14 Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051 (S.D. Cal.
15 2015) (“A party must preserve evidence it knows or should know is relevant to a claim or 16 defense of any party, or that may lead to the discovery of relevant evidence.”). Should 17 Defendants violate that duty, the Court has the power to impose sanctions. See Fed. R. Civ. P. 18 37. Plaintiff may also seek documentation and other relevant information through discovery. 19 See Fed. R. Civ. P. 33 & 34. He does not, under these circumstances, demonstrate he will be 20 harmed in the absence of an order granting the preliminary injunctive relief requested. 21 Nor does Plaintiff otherwise demonstrate his entitlement to a preliminary injunction. 22 Satisfaction of the mandatory injunctive relief requested would impose significant burdens of 23 time and expense on the public entity and officers named in this lawsuit, and is not necessary in 1 light of Defendants’ existing obligation to preserve evidence and Plaintiff’s ability to secure 2 documents and other relevant information through discovery. The balance of equities therefore 3 do not tip in Plaintiff’s favor, and an award of the relief requested would not serve the public 4 interest.
6 The Court, in sum, concludes that Plaintiff fails to demonstrate his entitlement to 7 preliminary injunctive relief. The Court therefore recommends Plaintiff’s Motion for Injunction, 8 Dkt. 12, be DENIED. A proposed order accompanies this Report and Recommendation. 10 Objections to this Report and Recommendation, if any, should be filed with the Clerk and 11 served upon all parties to this suit not later than fourteen (14) days from the date on which this 12 Report and Recommendation is signed. Failure to file objections within the specified time may 13 affect your right to appeal. Objections should be noted for consideration on the District Judge’s 14 motions calendar fourteen (14) days from the date they are filed. Responses to objections may
15 be filed by the day before the noting date. If no timely objections are filed, the matter will be 16 ready for consideration by the District Judge on June 4, 2025. 17 Dated this 14th day of May, 2025. 18 19 A United States Magistrate Judge 21
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