Prado v. City of Berkeley

• Court: District Court, N.D. California
• Decided: September 5, 2023
• Docket: 3:23-cv-04537
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 YESICA PRADO, ET AL., Case No. 4:23-04537 8 Plaintiffs, ORDER GRANTING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER v. 9 10 CITY OF BERKELEY, Re: Dkt. Nos. 2, 7. 11 Defendant. 12 Plaintiffs have filed their ex parte Application and Complaint for Injunctive Relief and 13 supporting documents. (Dkt. No. 2.)1 No response has been filed by defendant as of the time of 14 this Order. Having reviewed the application for Temporary Restraining Order and Preliminary 15 Injunction, the Memorandum of Points and Authorities, submitted declarations, and the complaint, 16 and good cause appearing, the Court GRANTS the application for a temporary restraining order. 17 Plaintiffs’ moving papers indicate that they are homeless. They currently reside in tents and 18 vehicles around 8th and Harrison in Berkeley, California. Plaintiffs allege that on September 1, the 19 Friday before Labor Day weekend, defendant notified plaintiffs that on September 4, they will be 20 forced to relocate for a “Health Hazard and Emergency Abatement.” Because of the holiday 21 weekend, plaintiffs, some of whom have disabilities, have been unable to access resources to assist 22 them in preparing to move, such as temporary storage for their belongings and housing services. 23 Plaintiffs allege that the city’s deliberate decision to conduct the abatement during a holiday 24 weekend when plaintiffs would have limited access to resources and the courts violates their 25 constitutional rights, including by placing them in state-created danger in violation of their right to 26 1 The undersigned counsel for plaintiff certified that, pursuant to Civil Local Rule 65-1(b), 27 he notified defendants via email of this ex parte motion, and provided courtesy copies of the 1 due process. It is the Court’s understanding based on further representations by plaintiffs’ counsel 2 by email to court staff that as of 9:30 p.m. on September 4, the abatement had not taken place. 3 A temporary restraining order may be granted where plaintiffs (1) are likely to succeed on 4 the merits; (2) are likely to suffer irreparable harm in the absence of preliminary relief; (3) the 5 balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. 6 Natural Resources Defense Council. Inc., 555 U.S. 7, 20 (2008). With respect to the success on 7 the merits and balance of harms factors, courts permit a strong showing on one factor to offset a 8 weaker showing on the other, so long as all four factors are established. Alliance for the Wild 9 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 10 The Court, as duty judge, resolves this matter pending reassignment. Having reviewed the 11 complaint and motion, the Court finds plaintiffs make a threshold showing of likelihood of success 12 on the merits of at least some claims. The potential loss of personal property, community, and 13 safety, particularly in the absence of access to resources and services is an irreparable harm. It is 14 in the public interest that members of the community, including the unhoused, are not endangered 15 or parted from their homes and community without cause. 16 *** 17 TEMPORARY RESTRAINING ORDER 18 UNTIL OTHERWISE ORDERED, defendant, its employees, agents and/or any other person or 19 entity acting with defendant or on its behalf are RESTRAINED AND ENJOINED from conducting an 20 abatement of the area surrounding 8th and Harrison, Berkeley, California. 21 THIS TEMPORARY RESTRAINING ORDER IS EFFECTIVE IMMEDIATELY. It shall expire on 22 September 15, 2023 at approximately 5:00 PM PST unless a further order based on good cause is 23 entered. 24 Unless otherwise stipulated, or ordered by the assigning judge, defendant shall file its 25 opposition no later than 9:00 a.m. Monday, September 11, 2023. Any reply shall be filed by 9:00 26 a.m. Wednesday, September 13, 2023. The assigned judge will determine whether a hearing is 27 necessary and whether to adjust the briefing schedule as needed on the need for further injunctive 1 APPLICATION TO PROCEED IN FORMA PAUPERIS 2 1. The Court GRANTS plaintiff Yesica Prado’s application to proceed in forma pauperis. 3 (Dkt. No. 7.) 4 2. The Clerk shall issue summons. 5 3. The U.S. Marshal shall serve, without prepayment of fees, a copy of the complaint, 6 any amendments, attachments, scheduling orders and other documents specified by 7 the Clerk, and this order upon the defendants. Proof of such service shall be filed no 8 later than Friday, September 8, 2023. 9 4. As no address has been provided for plaintiff Prado, the Clerk shall e-mail a copy of 10 this order to plaintiff’s counsel of record. 11 5. Plaintiff’s counsel shall e-mail a copy of this order to the defendant. 12 This Order terminates Docket Numbers 2 and 7. 13 IT IS SO ORDERED. 14 Dated: September 5, 2023 15 16 YVONNE GONZALEZ ROGERS 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27