1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK MAHONEY, et al., No. 2:20-cv-00258-KJM-CKD 12 Plaintiffs, 13 v. ORDER 14 CITY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiffs Patrick Mahoney, Caroline Kennedy, Suracha Xiong and Brandon Allen, 18 Sr. sought a temporary restraining order from the court on February 4, 2020. Mot. for TRO, ECF 19 No. 2. Defendants City of Sacramento and Sacramento Police Department filed an opposition on 20 February 5, 2020. Opp’n, ECF No. 6. Plaintiffs replied on February 6, 2020. ECF No. 9. 21 Having considered the parties’ arguments and the applicable law, the court DENIES plaintiffs’ 22 motion. As explained below, on the current record it is not clear plaintiffs have a federal case. 23 I. BACKGROUND 24 Plaintiffs Patrick Mahoney, Caroline Kennedy, Suracha Xiong and Brandon Allen, 25 Sr. are persons who are homeless, who live in tents placed along North B Street west of 7th Street 26 within the City of Sacramento. Compl., ECF No. 1 ¶¶ 4–7. They seek to represent a class of 27 approximately thirty homeless persons who also reside in tents along North B Street. Id. ¶ 8. 28 ///// 1 Members of the putative class refer to themselves as the “Hopeful Community.” Id., Introduction 2 at 2. 3 A private party contracted with a company to place a portable toilet near the 4 encampment. Id. ¶ 16. The portable toilet was placed on January 16, 2020. Id. ¶ 17. It remained 5 near the site for nine days. Id. ¶ 18. Plaintiffs allege it was maintained during that time by 6 members of the Hopeful Community. Id. Plaintiffs allege at the end of the nine days, the 7 portable toilet “was removed on orders of the Sacramento City Police.” Id. ¶ 19. On February 3, 8 2020, the portable toilet was once again placed at the site. Id. ¶ 21. Plaintiffs state that without 9 an order enjoining defendants from removing it, it will be removed, denying the plaintiffs and the 10 putative class a private and sanitary place to use the bathroom. Id. Nothing in the record 11 currently indicates removal of the portable toilet currently at the site is imminent. Plaintiffs say 12 many members of the putative class are disabled and use walkers and wheelchairs, and would 13 thus be without access to restroom facilities if the portable toilet was removed. Mot. at 7. 14 Defendants assert that the land on which the portable toilets sit is owned by the 15 City of Sacramento. Opp’n at 2. They assert the private company that placed the portable toilets 16 is United Site Services. Id. The first portable toilet was removed by United Site Services at the 17 request of the Sacramento Police Department. Id. Defendants assert the toilets were removed 18 because they were in violation of Sacramento City Code section 12.12.020, which makes it 19 unlawful for any person to encroach within public rights-of-way or other city property without 20 first obtaining an encroachment permit from the City. Id. at 4. Storage of personal property on 21 public property is unlawful and a public nuisance. Id. (citing SCC § 12.52.040). Defendants 22 assert plaintiffs have advanced no evidence that they applied for an encroachment permit, which 23 would remedy the problem if granted; as a result, defendants say, plaintiffs’ claims are unripe. Id. 24 at 7. 25 In response, plaintiffs proffer supplemental declarations explaining what they way 26 are their efforts to obtain permits. Robin Kristufek, RN, avers she is the person, along with a 27 fellow nurse assisting the homeless, who arranged to have the portable toilet delivered. 28 Declaration of Robin Kristufek (“Kristufek Decl.”), ECF No. 9-2 ¶ 7. She does not state that she 1 applied for a permit, but notes that after the removal of the first toilet, she called the City’s non- 2 emergency number 3-1-1 to explore obtaining a permit, and was eventually directed to the 3 Sacramento City Encroachment Division. Id. ¶ 9. She alleges the woman with whom she spoke 4 told her that “no such permit could be issued by the City, and that she had been specifically told 5 that port-a-potty permits cannot be issued for ‘homeless’ use.” Id. 6 Plaintiffs’ counsel, Mark Merin, also avers he called the City’s Encroachment 7 Division on February 6, 2020. Supp. Declaration of Mark Merin (“Merin Decl.”), ECF No. 9-1 8 ¶ 3. After speaking with the same woman and receiving the same answer about a policy of the 9 department not to issue encroachment permits for toilets for use by homeless persons, Mr. Merin 10 was referred to Matt Johns, evidently another City employee. Id. Mr. Johns stated the City 11 would not issue a permit for a port-a-potty encroaching on a city right-of-way, unless it was in 12 connection with a construction project. Id. ¶ 4. 13 II. LEGAL STANDARD 14 A temporary restraining order may be issued upon a showing “that immediate and 15 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard 16 in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the 17 status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no 18 longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). In 19 determining whether to issue a temporary restraining order, a court applies the factors that guide 20 the evaluation of a request for preliminary injunctive relief: whether the moving party “is likely to 21 succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . 22 . the balance of equities tips in [its] favor, and . . . an injunction is in the public interest.” Winter 23 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int’l. Sales Co. v. John D. 24 Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary 25 restraining orders and preliminary injunctions is “substantially identical”). 26 The Ninth Circuit sometimes employs an alternate formulation of the Winter test, 27 referred to as the “serious questions” test. Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). 28 “‘A preliminary injunction is appropriate when a plaintiff demonstrates… that serious questions 1 going to the merits were raised and the balance of hardships tips strongly in the plaintiff’s favor.’” 2 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (quoting Lands 3 Council v. McNair, 537 F.3d 981, 986-87 (9th Cir. 2008)) (internal quotations omitted)). Under 4 the “serious questions” approach to a preliminary injunction, the court may use a “sliding scale” 5 where “[t]he elements of the preliminary injunction test must be balanced, so that a stronger 6 showing of one element may offset a weaker showing of another.” Lopez v. Brewer, 680 F.3d 7 1068, 1072 (9th Cir. 2012). Winter was decided after the initial articulation of the “serious 8 questions” test, but does not overrule it. Cottrell, 632 F.3d at 1135. The “serious questions” test 9 must be applied in conjunction with review of the other two Winter factors, likelihood of 10 irreparable injury and whether the injunction is in the public interest. Id. 11 III.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK MAHONEY, et al., No. 2:20-cv-00258-KJM-CKD 12 Plaintiffs, 13 v. ORDER 14 CITY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiffs Patrick Mahoney, Caroline Kennedy, Suracha Xiong and Brandon Allen, 18 Sr. sought a temporary restraining order from the court on February 4, 2020. Mot. for TRO, ECF 19 No. 2. Defendants City of Sacramento and Sacramento Police Department filed an opposition on 20 February 5, 2020. Opp’n, ECF No. 6. Plaintiffs replied on February 6, 2020. ECF No. 9. 21 Having considered the parties’ arguments and the applicable law, the court DENIES plaintiffs’ 22 motion. As explained below, on the current record it is not clear plaintiffs have a federal case. 23 I. BACKGROUND 24 Plaintiffs Patrick Mahoney, Caroline Kennedy, Suracha Xiong and Brandon Allen, 25 Sr. are persons who are homeless, who live in tents placed along North B Street west of 7th Street 26 within the City of Sacramento. Compl., ECF No. 1 ¶¶ 4–7. They seek to represent a class of 27 approximately thirty homeless persons who also reside in tents along North B Street. Id. ¶ 8. 28 ///// 1 Members of the putative class refer to themselves as the “Hopeful Community.” Id., Introduction 2 at 2. 3 A private party contracted with a company to place a portable toilet near the 4 encampment. Id. ¶ 16. The portable toilet was placed on January 16, 2020. Id. ¶ 17. It remained 5 near the site for nine days. Id. ¶ 18. Plaintiffs allege it was maintained during that time by 6 members of the Hopeful Community. Id. Plaintiffs allege at the end of the nine days, the 7 portable toilet “was removed on orders of the Sacramento City Police.” Id. ¶ 19. On February 3, 8 2020, the portable toilet was once again placed at the site. Id. ¶ 21. Plaintiffs state that without 9 an order enjoining defendants from removing it, it will be removed, denying the plaintiffs and the 10 putative class a private and sanitary place to use the bathroom. Id. Nothing in the record 11 currently indicates removal of the portable toilet currently at the site is imminent. Plaintiffs say 12 many members of the putative class are disabled and use walkers and wheelchairs, and would 13 thus be without access to restroom facilities if the portable toilet was removed. Mot. at 7. 14 Defendants assert that the land on which the portable toilets sit is owned by the 15 City of Sacramento. Opp’n at 2. They assert the private company that placed the portable toilets 16 is United Site Services. Id. The first portable toilet was removed by United Site Services at the 17 request of the Sacramento Police Department. Id. Defendants assert the toilets were removed 18 because they were in violation of Sacramento City Code section 12.12.020, which makes it 19 unlawful for any person to encroach within public rights-of-way or other city property without 20 first obtaining an encroachment permit from the City. Id. at 4. Storage of personal property on 21 public property is unlawful and a public nuisance. Id. (citing SCC § 12.52.040). Defendants 22 assert plaintiffs have advanced no evidence that they applied for an encroachment permit, which 23 would remedy the problem if granted; as a result, defendants say, plaintiffs’ claims are unripe. Id. 24 at 7. 25 In response, plaintiffs proffer supplemental declarations explaining what they way 26 are their efforts to obtain permits. Robin Kristufek, RN, avers she is the person, along with a 27 fellow nurse assisting the homeless, who arranged to have the portable toilet delivered. 28 Declaration of Robin Kristufek (“Kristufek Decl.”), ECF No. 9-2 ¶ 7. She does not state that she 1 applied for a permit, but notes that after the removal of the first toilet, she called the City’s non- 2 emergency number 3-1-1 to explore obtaining a permit, and was eventually directed to the 3 Sacramento City Encroachment Division. Id. ¶ 9. She alleges the woman with whom she spoke 4 told her that “no such permit could be issued by the City, and that she had been specifically told 5 that port-a-potty permits cannot be issued for ‘homeless’ use.” Id. 6 Plaintiffs’ counsel, Mark Merin, also avers he called the City’s Encroachment 7 Division on February 6, 2020. Supp. Declaration of Mark Merin (“Merin Decl.”), ECF No. 9-1 8 ¶ 3. After speaking with the same woman and receiving the same answer about a policy of the 9 department not to issue encroachment permits for toilets for use by homeless persons, Mr. Merin 10 was referred to Matt Johns, evidently another City employee. Id. Mr. Johns stated the City 11 would not issue a permit for a port-a-potty encroaching on a city right-of-way, unless it was in 12 connection with a construction project. Id. ¶ 4. 13 II. LEGAL STANDARD 14 A temporary restraining order may be issued upon a showing “that immediate and 15 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard 16 in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the 17 status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no 18 longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). In 19 determining whether to issue a temporary restraining order, a court applies the factors that guide 20 the evaluation of a request for preliminary injunctive relief: whether the moving party “is likely to 21 succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . 22 . the balance of equities tips in [its] favor, and . . . an injunction is in the public interest.” Winter 23 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int’l. Sales Co. v. John D. 24 Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for temporary 25 restraining orders and preliminary injunctions is “substantially identical”). 26 The Ninth Circuit sometimes employs an alternate formulation of the Winter test, 27 referred to as the “serious questions” test. Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). 28 “‘A preliminary injunction is appropriate when a plaintiff demonstrates… that serious questions 1 going to the merits were raised and the balance of hardships tips strongly in the plaintiff’s favor.’” 2 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (quoting Lands 3 Council v. McNair, 537 F.3d 981, 986-87 (9th Cir. 2008)) (internal quotations omitted)). Under 4 the “serious questions” approach to a preliminary injunction, the court may use a “sliding scale” 5 where “[t]he elements of the preliminary injunction test must be balanced, so that a stronger 6 showing of one element may offset a weaker showing of another.” Lopez v. Brewer, 680 F.3d 7 1068, 1072 (9th Cir. 2012). Winter was decided after the initial articulation of the “serious 8 questions” test, but does not overrule it. Cottrell, 632 F.3d at 1135. The “serious questions” test 9 must be applied in conjunction with review of the other two Winter factors, likelihood of 10 irreparable injury and whether the injunction is in the public interest. Id. 11 III. DISCUSSION 12 Without at this point reaching defendants’ arguments about ripeness and standing, 13 plaintiffs have not met their burden of demonstrating their entitlement to a temporary restraining 14 order, an “extraordinary remedy never awarded as of right.” Cottrell, 632 F. 3d at 1131. This is 15 the case even if there is a likelihood of removal of the second portable toilet so as to satisfy the 16 requirement of likelihood of irreparable harm. 17 Although plaintiffs rightly point out that “an alleged constitutional infringement 18 will often alone constitute irreparable harm,” (Associated Gen. Contractors of Cal., Inc. v. 19 Coalition of Econ. Equity, 950 F. 2d 1401, 1412 (9th Cir. 1991)), the court is not persuaded 20 plaintiffs have shown the likelihood of a violation of any constitutional right. 21 Plaintiffs assert that the substantive due process rights of privacy and bodily 22 integrity include the right to eliminate bodily waste in private. Although they cite district court 23 cases from outside the Ninth Circuit for this proposition, (West v. Dallas Police Dep’t, No. 3:95- 24 cv-01347-P, 1997 U.S. Dist. LEXIS 23900, at *19 (N.D. Tex. July 31, 1997); Glaspy v. Malicoat, 25 134 F. Supp. 2d 890, 896 (W.D. Mich. 2001); and Thompson v. Spurgeon, No. 3:13-cv-00526, 26 2013 WL 2467755, at *6–7 (M.D. Tenn. June 7, 2013)), they cite no controlling authority decided 27 by the Ninth Circuit or the Supreme Court. While the court at times agrees with solely persuasive 28 authority, in this instance the cases plaintiffs cite are not closely enough analogous to the 1 circumstances here for the court to be convinced the cases should be given weight. Generally 2 speaking, the cases address extreme situations in which plaintiffs were forced to soil themselves 3 or eliminate in view of strangers. See, e.g., West, 1997 U.S. Dist. LEXIS 23900, at *3–4 (pretrial 4 detainee denied access to restroom during booking process and urinated on booking room floor, 5 then handcuffed with penis still exposed); see also Glaspy, 134 F. Supp. 2d at 892–93 (prison 6 visitor denied access to restroom without justification, forced to soil self in presence of guards); 7 see also Thomson, 2013 WL 2467755, at *1 (detainee denied access to restroom during 8 rehabilitative program soiled self and forced to return to supervising corrections officer soaked in 9 urine). These cases do not expressly recognize a free-floating constitutional right to private 10 elimination in all circumstances. They stand for the proposition that being forced into specific, 11 immediately foreseeable situations of elimination and self-soiling in full view of authority figures 12 and strangers violates a constitutional guarantee. These cases are insufficiently analogous to the 13 facts in the record to persuade the court plaintiffs’ circumstances have a constitutional dimension. 14 One former member of the Supreme Court has observed, “there are few activities 15 that appear to be more at the heart of the liberty guaranteed by the Due Process Clause of the 16 Fourteenth Amendment than the right to eliminate harmful wastes from one’s body away from 17 the observation of others,” but he did so in dissent and the Court has not adopted any principle of 18 law applicable here. See Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 645–46 (1989) 19 (Marshall, J. Thurgood, dissenting) (majority upholding validity of warrantless urine testing of 20 railway employees). Regardless of the intuitive appeal of Justice Marshall’s views, there is an 21 absence of any authority recognizing the specific contours or even the existence of a right to 22 private elimination. Plaintiffs have not met their burden of showing they possess a constitutional 23 right to be violated. 24 Plaintiffs also have not shown that removal of the portable toilet is constitutionally 25 cognizable under the Eighth Amendment. They do have an Eighth Amendment right to be free 26 from punishment for involuntary conduct under Robinson v. California, 370 U.S. 660 (1962), and 27 its progeny. Martin v. City of Boise, 920 F. 3d 584, 616 (9th Cir. 2019). Martin, in particular, 28 holds that individuals may not be subjected to criminal penalties for engaging in involuntary, life- 1 sustaining actions on public property in the absence of adequate shelter. Id. (holding enforcement 2 of Boise’s anti-public camping ordinance against homeless people was unconstitutional 3 punishment for involuntary act of sheltering against elements in absence of available homeless 4 shelter space). However, it is not a necessary corollary that the same right is violated by the 5 removal of the portable toilet at issue here. Extending Martin to these facts, the City may not 6 prosecute or otherwise penalize the plaintiffs and the Hopeful Community for eliminating in 7 public if there is no alternative to doing so. Given plaintiffs’ allegations here, no irreparable 8 injury to plaintiffs’ Eighth Amendment rights is likely. 9 Plaintiffs’ further argue the City’s removal of the portable toilet constitutes a state- 10 created danger. The test for a state-created danger is whether the agents of the state have engaged 11 in affirmative conduct that leaves the person in danger in a situation more dangerous than the one 12 in which the agents of the state found them. Munger v. City of Glasgow Police Dept., 227 F. 3d 13 1082, 1086 (9th Cir. 2000). Fatal to plaintiffs’ argument here is that the danger alleged is danger 14 to purported constitutional rights, which as the court notes are not colorable on the record 15 currently before the court. Plaintiffs also point vaguely to the likelihood of plaintiffs’ 16 “endangering the lives and health of the community at large while suffering humiliation and 17 degradation.” Mot. at 7. Between a constitutional right that appears not to exist, and generalized 18 public health threats to an undefined community, plaintiffs have not met their burden of 19 establishing a likelihood of irreparable harm. 20 Lastly, plaintiffs have not established the alleged harm is likely to occur, as 21 opposed to merely possible. See Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based 22 only on the possibility of irreparable harm is inconsistent with our characterization of injunctive 23 relief as an extraordinary remedy that may be awarded upon a clear showing that the plaintiff is 24 entitled to such relief.”). Assuming it is possible the portable toilet will be removed even after the 25 filing of this suit, it is plaintiffs’ burden to demonstrate a likelihood of irreparable injury, a burden 26 they have not met. 27 Given the conclusions it reaches above, the court need not address the remaining 28 Winter factors or defendants’ ripeness and standing arguments. 1 IV. CONCLUSION 2 For the foregoing reasons, plaintiffs’ motion for a temporary restraining order is 3 DENIED. 4 IT IS SO ORDERED 5 DATED: February 10, 2020. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28