1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSE EUGENE TASSEY, Case No. 23-cv-05041-AMO Plaintiff, 8 v. ORDER GRANTING APPLICATION FOR TEMPORARY RESTRAINING 9 CALIFORNIA DEPARTMENT OF ORDER AND APPLICATION TO TRANSPORTATION (CALTRANS), et al., PROCEED IN FORMA PAUPERIS; 10 Defendants. ORDER TO SHOW CAUSE RE 11 PRELIMINARY INJUNCTION
12 Re: Dkt. Nos. 1, 3
13 14 Pro se Plaintiff Jesse Eugene Tassey has filed an Ex Parte Application for a Temporary 15 Restraining Order and Complaint for Injunctive Relief. The Court has reviewed the Application 16 and Complaint, the incorporated Memorandum of Points and Authorities, and Defendants’ 17 Opposition. Having carefully considered the parties’ papers, the relevant legal authority, and the 18 arguments advanced by the parties during the hearing held on October 3, 2023, the Court 19 GRANTS the Application for a Temporary Restraining Order. 20 I. BACKGROUND 21 Tassey’s papers indicate that he has lived alone in a small, isolated embankment on 22 Caltrans property for the last eight months. ECF 1 at 1, 14. He has a small camp there, with food, 23 clean water and shelter from extreme heat.1 Id. at 1, 6. It is the only place where his case 24 manager, who is assisting Tassey with locating housing, can reach him. Id. at 1, 7. He does not 25 have a phone, and he is afraid that leaving his camp will mean losing contact with his case 26
27 1 Tassey requests that the Court take judicial notice of the National Weather Service forecast for 1 manager. Id. at 7. 2 On September 29, 2023, Defendants posted a Notice to Vacate Campsite at Tassey’s 3 location. Id. at 2, 18. The Notice states that “Every person who camps or lodges or stores 4 property on State property without permission of the owner is guilty of a misdemeanor violation of 5 California law.” Id. at 18. The Notice lists violations of California Penal Code § 647(e) and 6 California Vehicle Code § 23112(b). Section 647(e) of the California Penal Code makes it a 7 misdemeanor to “lodge[] in any building, structure, vehicle, or place, whether public or private, 8 without the permission of the owner or person entitled to the possession or in control of it.” Cal. 9 Penal Code § 647(e). Section 23112(b) of the California Vehicle Code provides that “No person 10 shall place, deposit, or dump, or cause to be placed, deposited, or dumped, any rocks, refuse, 11 garbage, or dirt in or upon any highway, including any portion of the right-of-way thereof, without 12 the consent of the state or local agency having jurisdiction over the highway.” Cal. Veh. Code 13 § 23112(b). 14 The Notice gives the following “Instructions to Occupants:”
15 1. ALL PERSONAL PROPERTY AND CAMP DEBRIS IS TO BE REMOVED BY 16 THE TIME AND DATE NOTED BELOW.
17 2. ANY PERSONAL PROPERTY LEFT AT THIS SITE AFTER THIS TIME WILL BE CONSIDERED ABANDONED. 18 3. ANY PERSONAL PROPERTY NOT DISPOSED OF WILL BE STORED FOR 19 SIXTY (60) DAYS. TO RECLAIM PROPERTY CALL: (707) 762-6641. 20 FAILURE TO RECLAIM BY SIXTY (60) DAYS FROM REMOVAL WILL 21 RESULT IN ITS’ DISPOSAL.
22 4. CONTINUED VIOLATIONS WILL RESULT IN CITATION AND/OR ARREST. 23 24 ECF 1 at 18 (capitalization in original). The “Vacate By Date” is October 1, 2023. Id. The 25 “Removal Start Date” is October 2, 2023. Id. The “Removal End Date” is October 6, 2023. Id. 26 The Notice states Community Service Assistance is available at the California Highway Patrol 27 Marin Office and provides a contact phone number. Id. 1 knee injury and states it will take him two weeks to find a new place to camp and move his 2 belongings.2 Id. at 13. He asks that the Court issue a temporary restraining order so that (1) he 3 has time to relocate and (2) is provided with storage for his belongings as required under 4 California Civil Code § 2080. Id. at 15. 5 II. LEGAL STANDARD 6 A temporary restraining order may be granted where plaintiffs (1) are likely to succeed on 7 the merits; (2) are likely to suffer irreparable harm in the absence of preliminary relief; (3) the 8 balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. 9 Natural Resources Defense Council. Inc., 555 U.S. 7, 20 (2008). With respect to the success on 10 the merits and balance of harms factors, courts permit a strong showing on one factor to offset a 11 weaker showing on the other, so long as all four factors are established. Alliance for the Wild 12 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). “Thus, when plaintiffs establish that the 13 balance of hardships tips sharply in their favor, there is a likelihood of irreparable injury, and the 14 injunction is in the public interest, they need only show ‘serious questions’ on the merits.” Where 15 Do We Go Berkeley v. Cal. Dep’t of Trans., 32 F.4th 852, 859 (9th Cir. 2022) (citation omitted). 16 Moreover, the Ninth Circuit has held that “‘serious questions going to the merits’ and a hardship 17 balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the 18 other two elements of the Winter test are also met.” See Alliance for the Wild Rockies, 632 F.3d at 19 1132. 20 III. DISCUSSION 21 Addressing each relevant factor in turn, the Court finds that the circumstances presented 22 warrant immediate temporary relief. 23 Tassey raises serious questions that the Defendants will violate his constitutional rights by 24 forcing him to relocate or abandon his personal property on one business days’ notice, without 25 other available shelter, without clarity as to which of his belongings will be discarded and which 26 27 1 will be stored,3 and without confirmation that safeguards previously imposed by a class action 2 settlement would protect Tassey’s property here.4 See Blain v. Cal. Dep’t of Trans., 616 F. Supp. 3 3d 952, 957 (N.D. Cal. 2022) (finding “serious questions going to the merits” where planned 4 removal of plaintiffs from encampment, “when done without sufficient warning or plans for 5 shelter, would expose them to unjustifiable dangers they otherwise would not face.”), order 6 dissolved, No. 3:22-CV-04178-WHO, 2022 WL 3702106 (N.D. Cal. Aug. 26, 2022); Janosko v. 7 City of Oakland, No. 3:23-CV-00035-WHO, 2023 WL 187499, at *3 (N.D. Cal. Jan. 13, 2023) 8 (“Alleging that the government demolished an unhoused individual’s shelter and property 9 essential to protection from the elements including cold and freezing temperatures, rain, and other 10 difficult physical conditions is sufficient to state a claim for state-created danger under the 11 Fourteenth Amendment.”) (internal quotation marks omitted). 12 Tassey has also demonstrated a likelihood of irreparable injury. Absent relief, Tassey risks 13 losing his personal property, shelter, and access to food and clean water during a week expected to 14 have multiple days of 90-degree weather. This satisfies the required showing. See Blain, 616 F. 15 Supp. 3d at 958 (“Being exposed to safety and health threats by dint of governmental action with 16 short notice meets the irreparable-injury element.”); Lavan, 693 F.3d at 1029 (“For many of us, 17 the loss of our personal effects may pose a minor inconvenience. . . . [T]he loss can be devastating 18 for the homeless.”). That Tassey may lose contact with the case manager who is helping him 19 20
21 3 When asked at oral argument, Defendants’ counsel could not give a definition of “personal property” as the term is used in the Notice to Vacate but did explain that certain items could be 22 discarded as hazardous materials.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSE EUGENE TASSEY, Case No. 23-cv-05041-AMO Plaintiff, 8 v. ORDER GRANTING APPLICATION FOR TEMPORARY RESTRAINING 9 CALIFORNIA DEPARTMENT OF ORDER AND APPLICATION TO TRANSPORTATION (CALTRANS), et al., PROCEED IN FORMA PAUPERIS; 10 Defendants. ORDER TO SHOW CAUSE RE 11 PRELIMINARY INJUNCTION
12 Re: Dkt. Nos. 1, 3
13 14 Pro se Plaintiff Jesse Eugene Tassey has filed an Ex Parte Application for a Temporary 15 Restraining Order and Complaint for Injunctive Relief. The Court has reviewed the Application 16 and Complaint, the incorporated Memorandum of Points and Authorities, and Defendants’ 17 Opposition. Having carefully considered the parties’ papers, the relevant legal authority, and the 18 arguments advanced by the parties during the hearing held on October 3, 2023, the Court 19 GRANTS the Application for a Temporary Restraining Order. 20 I. BACKGROUND 21 Tassey’s papers indicate that he has lived alone in a small, isolated embankment on 22 Caltrans property for the last eight months. ECF 1 at 1, 14. He has a small camp there, with food, 23 clean water and shelter from extreme heat.1 Id. at 1, 6. It is the only place where his case 24 manager, who is assisting Tassey with locating housing, can reach him. Id. at 1, 7. He does not 25 have a phone, and he is afraid that leaving his camp will mean losing contact with his case 26
27 1 Tassey requests that the Court take judicial notice of the National Weather Service forecast for 1 manager. Id. at 7. 2 On September 29, 2023, Defendants posted a Notice to Vacate Campsite at Tassey’s 3 location. Id. at 2, 18. The Notice states that “Every person who camps or lodges or stores 4 property on State property without permission of the owner is guilty of a misdemeanor violation of 5 California law.” Id. at 18. The Notice lists violations of California Penal Code § 647(e) and 6 California Vehicle Code § 23112(b). Section 647(e) of the California Penal Code makes it a 7 misdemeanor to “lodge[] in any building, structure, vehicle, or place, whether public or private, 8 without the permission of the owner or person entitled to the possession or in control of it.” Cal. 9 Penal Code § 647(e). Section 23112(b) of the California Vehicle Code provides that “No person 10 shall place, deposit, or dump, or cause to be placed, deposited, or dumped, any rocks, refuse, 11 garbage, or dirt in or upon any highway, including any portion of the right-of-way thereof, without 12 the consent of the state or local agency having jurisdiction over the highway.” Cal. Veh. Code 13 § 23112(b). 14 The Notice gives the following “Instructions to Occupants:”
15 1. ALL PERSONAL PROPERTY AND CAMP DEBRIS IS TO BE REMOVED BY 16 THE TIME AND DATE NOTED BELOW.
17 2. ANY PERSONAL PROPERTY LEFT AT THIS SITE AFTER THIS TIME WILL BE CONSIDERED ABANDONED. 18 3. ANY PERSONAL PROPERTY NOT DISPOSED OF WILL BE STORED FOR 19 SIXTY (60) DAYS. TO RECLAIM PROPERTY CALL: (707) 762-6641. 20 FAILURE TO RECLAIM BY SIXTY (60) DAYS FROM REMOVAL WILL 21 RESULT IN ITS’ DISPOSAL.
22 4. CONTINUED VIOLATIONS WILL RESULT IN CITATION AND/OR ARREST. 23 24 ECF 1 at 18 (capitalization in original). The “Vacate By Date” is October 1, 2023. Id. The 25 “Removal Start Date” is October 2, 2023. Id. The “Removal End Date” is October 6, 2023. Id. 26 The Notice states Community Service Assistance is available at the California Highway Patrol 27 Marin Office and provides a contact phone number. Id. 1 knee injury and states it will take him two weeks to find a new place to camp and move his 2 belongings.2 Id. at 13. He asks that the Court issue a temporary restraining order so that (1) he 3 has time to relocate and (2) is provided with storage for his belongings as required under 4 California Civil Code § 2080. Id. at 15. 5 II. LEGAL STANDARD 6 A temporary restraining order may be granted where plaintiffs (1) are likely to succeed on 7 the merits; (2) are likely to suffer irreparable harm in the absence of preliminary relief; (3) the 8 balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. 9 Natural Resources Defense Council. Inc., 555 U.S. 7, 20 (2008). With respect to the success on 10 the merits and balance of harms factors, courts permit a strong showing on one factor to offset a 11 weaker showing on the other, so long as all four factors are established. Alliance for the Wild 12 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). “Thus, when plaintiffs establish that the 13 balance of hardships tips sharply in their favor, there is a likelihood of irreparable injury, and the 14 injunction is in the public interest, they need only show ‘serious questions’ on the merits.” Where 15 Do We Go Berkeley v. Cal. Dep’t of Trans., 32 F.4th 852, 859 (9th Cir. 2022) (citation omitted). 16 Moreover, the Ninth Circuit has held that “‘serious questions going to the merits’ and a hardship 17 balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the 18 other two elements of the Winter test are also met.” See Alliance for the Wild Rockies, 632 F.3d at 19 1132. 20 III. DISCUSSION 21 Addressing each relevant factor in turn, the Court finds that the circumstances presented 22 warrant immediate temporary relief. 23 Tassey raises serious questions that the Defendants will violate his constitutional rights by 24 forcing him to relocate or abandon his personal property on one business days’ notice, without 25 other available shelter, without clarity as to which of his belongings will be discarded and which 26 27 1 will be stored,3 and without confirmation that safeguards previously imposed by a class action 2 settlement would protect Tassey’s property here.4 See Blain v. Cal. Dep’t of Trans., 616 F. Supp. 3 3d 952, 957 (N.D. Cal. 2022) (finding “serious questions going to the merits” where planned 4 removal of plaintiffs from encampment, “when done without sufficient warning or plans for 5 shelter, would expose them to unjustifiable dangers they otherwise would not face.”), order 6 dissolved, No. 3:22-CV-04178-WHO, 2022 WL 3702106 (N.D. Cal. Aug. 26, 2022); Janosko v. 7 City of Oakland, No. 3:23-CV-00035-WHO, 2023 WL 187499, at *3 (N.D. Cal. Jan. 13, 2023) 8 (“Alleging that the government demolished an unhoused individual’s shelter and property 9 essential to protection from the elements including cold and freezing temperatures, rain, and other 10 difficult physical conditions is sufficient to state a claim for state-created danger under the 11 Fourteenth Amendment.”) (internal quotation marks omitted). 12 Tassey has also demonstrated a likelihood of irreparable injury. Absent relief, Tassey risks 13 losing his personal property, shelter, and access to food and clean water during a week expected to 14 have multiple days of 90-degree weather. This satisfies the required showing. See Blain, 616 F. 15 Supp. 3d at 958 (“Being exposed to safety and health threats by dint of governmental action with 16 short notice meets the irreparable-injury element.”); Lavan, 693 F.3d at 1029 (“For many of us, 17 the loss of our personal effects may pose a minor inconvenience. . . . [T]he loss can be devastating 18 for the homeless.”). That Tassey may lose contact with the case manager who is helping him 19 20
21 3 When asked at oral argument, Defendants’ counsel could not give a definition of “personal property” as the term is used in the Notice to Vacate but did explain that certain items could be 22 discarded as hazardous materials.
23 4 During the hearing, the Court asked Defendants’ counsel whether certain protections imposed by a class action settlement in state litigation—Sanchez v. California Department of Transportation, 24 No. RG16842117 (Cal. Sup. Ct. Oct. 23, 2020)—were still in effect. Counsel could not confirm. 25 This heightens the real concerns about the risk of destruction or loss of Tassey’s personal property. Compare Blain, 616 F. Supp. 3d at 959 (“Between that [Sanchez] judicial decree and 26 the several weeks of delay that the plaintiffs will have under this Order to remove their own possessions, the plaintiffs have not made a sufficient showing of the risk of an unconstitutional 27 seizure.”). See also v. City of Los Angeles, 693 F.3d 1022, 1029 (9th Cir. 2012) (“[T]he 1 secure housing because he has no phone or other means of contacting that person further bolsters 2 this finding. 3 In light of this, and given that Tassey has lived at his camp for the last eight months and 4 seeks a TRO only for the length of time needed for him to relocate, the balance of hardships tips 5 sharply in his favor. See Blain, 616 F. Supp. 3d at 958 (“The balance of equities sharply tilts in 6 the plaintiffs’ favor for a period long enough to give them adequate notice of the action, time to 7 make alternative plans, and time for the relevant governmental entities to help locate shelter (as 8 they have committed to trying).”). 9 The Court also finds that the public interest weighs in favor of granting Tassey’s 10 application, as doing so provides a “a stopgap to prevent a particular violation of constitutional 11 rights that results from the combination of lack of notice and failure to provide alternative shelter.” 12 See id. at 654; Janosko, 2023 WL 187499, at *4 (“[A] short, defined delay in the planned evictions 13 is in the public interest.”). Given the temporary nature of the relief granted, the Court emphasizes 14 that Tassey must honor the representations he made during the hearing, that is, that he could move 15 in the coming weeks and would do so. Defendants dispute that any representative has granted 16 Tassey two weeks to do so, see ECF 10, and so, the Court issues this Order to safeguard Tassey’s 17 constitutional rights and to allow him that limited time. 18 IV. CONCLUSION 19 For the reasons set forth above, the Court GRANTS Plaintiff’s Application for Temporary 20 Restraining Order and ORDERS as follows: 21 TEMPORARY RESTRAINING ORDER 22 This TRO applies to the named defendants; their officers, agents, servants, employees, and 23 attorneys; and persons who are in active concert or participation with the foregoing individuals 24 and entities. These individuals and entities are hereby RESTRAINED from proceeding with 25 planned removal of persons, personal possessions, and structures from Plaintiff’s camp. 26 APPLICATION TO PROCEED IN FORMA PAUPERIS 27 1. The Court GRANTS Plaintiff’s application to proceed forma pauperis. ECF 3. 1 3, Because Defendants have not waived service, see ECF 10, the U.S. Marshall shall 2 || serve, without prepayment of fees, a copy of Plaintiffs Ex Parte Application for a Temporary 3 Restraining Order and Complaint, any scheduling orders or other documents specified by the 4 || Clerk, and this Order upon the Defendants. Proof of such service shall be filed no later than 5 October 5, 2023. 6 4. The Clerk shall mail a copy of this Order to Plaintiffs given address: 7 Jesse Eugene Tassey 8 Novato General Delivery 1537 S. Novato Blvd. 9 Novato, CA 94947 10 5. Defendants shall also post a copy of this Order where the Notice to Vacate 11 Campsite was posted. Defendants shall file a notice of compliance with this requirement by no «= 12 || later than 5:00 p.m. on October 4, 2023.
13 ORDER TO SHOW CAUSE
v 14 Each party is Ordered to Show Cause as to whether a preliminary injunction should be © 15 entered for relief beyond October 18, 2023, namely an order to restrain and enjoin Defendants 16 || and their agents, assigns, and/or transferees, from clearing Plaintiff's camp after such a date.
17 1. Each party is to respond to the Order to Show Cause, in writing, by no later than
18 October 13, 2023 at 12:00 p.m. 19 2. A Zoom hearing on the Order to Show Cause for a Preliminary Injunction shall be 20 held on October 17, 2023 at 3:00 p.m. 21 3. The Court will entertain a modified schedule for briefing and hearing, and an 22 || extension of the Temporary Restraining Order, if presented by stipulation of the parties. 23 IT IS SO ORDERED. 24 Dated: October 4, 2023 25 i. - 26 hacel df= 7 CELI MARTINEZ-OEG United States District Judge 28