Opinion
Civil Action 22-cv-01979-CNS-KLM
08-26-2022
CAROLL LATIMORE, Plaintiff, v. DENVER HOUSING AUTHORITY (DHA) OF THE CITY AND COUNTY OF DENVER; DAVID NISIVOCCIA, Executive Director, DHA; LORETTA OWENS, Director Housing Voucher Program, DHA; NICOLE MATTEO, Employee DHA; ANGIE TRUJILLO, Employee DHA; MERCEDES PINEDA, 504 Coordinator, DHA,Defendants.
AMENDED ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Ex Parte Motion for a Temporary Restraining Order [#5][ (the “First Motion”) and Plaintiff's Emergency Motion for a Temporary Restraining Order [#10] (the “Second Motion”). A Recommendation of United States Magistrate Judge [#9] (Recommendation”) was issued on August 12, 2022 as to the First Motion. In light of the filing of Plaintiff's Second Motion [#10], that Recommendation [#5] is vacated and superseded by this Amended Order and Recommendation of United States Magistrate Judge.
“[#5]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
The Court has reviewed the Motions [#5, 10], the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, it is respectfully recommended that the Motions [#5, #10] be denied without prejudice to the filing of a Motion for Preliminary Injunction that is served on Defendants.
I. Introduction
Plaintiff is proceeding pro se in this matter, and commenced this action on August 8, 2022. See Compl. [#1]. Defendants have not yet been served or entered an appearance, although the Clerk of Court issued Summonses [#12] on August 22, 2022.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Plaintiff asserts various claims under 42 U.S.C. §§ 1983, 1985(3), and 1988 for a violation of her civil rights under the Fair Housing Act related to Defendants' failure to provide Plaintiff with the necessary forms under the Housing Choice Voucher Program. See Compl. [#1]; First Mot. [#5] at 2. Plaintiff asserts that these forms are required for her to obtain Section 8 “housing for FY 2023 which begins Oct. 1, 2022[,]” and that she needs these forms “immediately” so that she can sign a lease. First Mot. [#5] at 2; Second Mot. [#10] at 2. According to Plaintiff, Defendants appear to be “doing a repeat of last year and illegally ejecting her from the housing program.” First Mot. [#5] at 2.
As to Plaintiff's reference to “last year,” the Court notes that Plaintiff brought a similar suit in 2021 to get her housing voucher reinstated in Latimore v. Nisivocchia et al., Civil Action No. 21-cv-02431-LPG. See Second Mot. [#10] at 2. That case was dismissed on September 22, 2022, pursuant to the parties' Joint Stipulation of Dismissal With Prejudice [#8] (“Stipulation”). See Order [#9] in Civil Action No. 21-cv-02431-LPG. In that Stipulation [#8], the parties agreed, among other things, that Defendants would process Plaintiff's Section 8 Housing Choice Voucher Annual Paperwork for FY 2021 and would reinstate Plaintiff's participation in the Housing Choice Voucher Program. Id. ¶ 1. Plaintiff claims in this lawsuit that Defendants are “breaking” the Stipulation [#8], and that she signed the Stipulation [#8] “under duress with no fair and full opportunity to consider what had happened....“ Compl. [#1] at 4-5.
The Court expresses no opinion in this Recommendation as to whether Plaintiff should have sought to reopen the prior suit to bring these claims, and whether this new lawsuit involving essentially the same claims as the prior suit is appropriate.
While the First Motion [#5] was filed on an ex parte basis, Plaintiff asserts in the Second Motion [#10] that on August 9, 2022, she gave Defendants a copy of her First Motion [#5] and proposed order, as well as “everything else she filed on the 8th in addition to forms to waive service[,]” by delivering them “into the hands of opposing counsel” Gerritt Koser. Motion [#10] at 1-2. Plaintiff also states that she contacted Defendants' attorney Mr. Koser via email on several occasions, beginning on August 12, 2022, and has gotten no response to her emails. Id. at 2. The Motion [#10] states that Plaintiff will drop off a copy of the Second Motion [#10] and proposed order with Mr. Koser on August 17, 2022, immediately after filing of the Motion [#10]. Id. at 7.
Mr. Koser's name and address were listed in the First Motion [#5], but there was no indication that he would be served with a copy of the Motion. See id. at 1.
I. Analysis
Fed. R. Civ. P. 65 governs injunctions and restraining orders. When addressing a motion for temporary restraining order (“TRO”), the court applies the same standard as it applies to a motion for preliminary injunction. See Kilman v. Brown, No. 19-cv-01419-RBJ-MEH, 2019 WL 8723240, at *2 (D. Colo. Oct. 22, 2019) (citing Hicks v. Jones, 332 Fed.Appx. 505, 508 (10th Cir. 2009)). In the Tenth Circuit, a party requesting a preliminary injunction or TRO must establish the following: (1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).
“As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Schrier, 427 F.3d at 1258 (internal quotation marks omitted). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989), “is the exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). Moreover, “[b]ecause the limited purpose of a preliminary injunction ‘is merely to preserve the relative positions of the parties until a trial on the merits can be held,'” the Tenth Circuit has identified three types of specifically disfavored preliminary injunctions: “‘(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that [he] could recover at the conclusion of a full trial on the merits.'” Schrier, 427 F.3d at 1258-59 (citation omitted). These disfavored injunctions are “‘more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.'” Id. at 1259.
Plaintiff's request for an order requiring Defendants to keep her enrolled in the Housing Choice Voucher Program and to provide her the necessary forms to obtain Section 8 housing seeks mandatory injunctive relief that would alter the status quo. Therefore, the injunctive relief sought by Plaintiff “constitutes a specifically disfavored injunction” that “must be more closely scrutinized.” Schrier, 427 F.3d at 1261.
Here, the Court has closely scrutinized Plaintiff's Motions [#5, #10], and finds that they should be denied. A hearing is not necessary. See, e.g., Md. Cas. Co. v. Realty Advisory Bd. on Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3rd Cir. 1990).
The Court first addresses the requirement of irreparable injury. It is well established that “[b]ecause a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir.2004) (citations omitted). “To constitute irreparable harm, an injury must be certain, great, actual ‘and not theoretical.'” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.2003) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.1985)). Irreparable harm is more than “merely serious or substantial” harm. Id. (citation omitted). Thus, to demonstrate irreparable harm Plaintiff “must establish both that harm will occur, and that, when it does, such harm will be irreparable. Vega v. Wiley, 259 Fed.Appx. 104, 106 (10th Cir. 2007). An injunction is only appropriate “to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future.” Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931).
Here, in the First Motion [#5] Plaintiff averred that she needs to sign a lease immediately for housing (Motion [#5] at 2) and that Defendants are “driving her towards homelessness” (Complaint [#1] at 26). She does not demonstrate in that Motion [#5], however, that this alleged harm is imminent. Thus, Plaintiff does not aver why she has to sign a lease immediately, that she will be evicted from her present housing if she is not able to sign such a lease, or that she actually will be homeless if a TRO is not issued.
In her Second Motion [#10], Plaintiff reiterates that if the Court does not intervene and immediately order Defendants to provide Plaintiff the required housing documents, she “may well be careening towards homelessness.” Motion [#10] at 5. Plaintiff further avers, unlike in the First Motion [#5], that if she does not sign a lease “very soon” she will be homeless by October 1, 2022. Id. at 9. These allegations make a stronger showing of irreparable injury than Plaintiff's initial Motion [#5], but the Court still questions whether the alleged irreparable injury “is of ‘such imminence that there is a clear and present need for equitable relief to prevent irreparable harm'” through the issuance of a TRO. See Heideman, 348 F.3d at 1189 (quotation omitted). While the Court appreciates the dilemma Plaintiff is in, there is still over a month before October 1, 2022. Once Defendants are served and enter an appearance, the case may be resolved through settlement like Plaintiff's prior case was or Plaintiff could seek a preliminary injunction which would allow the Court to consider Defendants' position regarding Plaintiff's housing situation.
Even assuming for purposes of Plaintiff's Motions [#5, #10] that she has shown irreparable injury, Plaintiff has not addressed the other three elements or shown that these elements are met. Plaintiff thus has not demonstrated: (1) a likelihood of success on the merits of her claims; (2) that the threatened injury to her outweighs any damage the proposed TRO may cause Defendants; or (3) that the TRO is not adverse to the public interest. Plaintiff relies only on conclusory allegations in her Motions [#5, #10] that fall far short of establishing that the “extraordinary remedy” of a TRO should be granted, Bryant v. Nat'l Football League, No. 07-cv-02186-MSK-MJW, 2007 WL 305498, at *2 (D. Colo. Oct. 18, 2007), particularly since Plaintiff is seeking a disfavored form of injunctive relief.
In addition, as to the First Motion [#5] the Court finds that Plaintiff did not satisfy the requirements for obtaining an ex parte TRO. Rule 65(b) states that a TRO may be issued without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.Fed. R. Civ. P. 65(b)(1). This Court has stated that it “shall not consider an ex parte motion for temporary restraining order” except as provided in Fed.R.Civ.P. 65(b)(1). D.C.COLO.LCivR 65.1.
Here, while Plaintiff's Complaint [#1] is verified, and even if Plaintiff established irreparable injury sufficient to obtain injunctive relief generally, the Court finds under Rule 65(b)(1)(A) that Plaintiff has not “clearly shown that immediate and irreparable injury will result to her before the adverse party can be heard in opposition.” Id. For example, Plaintiff has not shown that she is in imminent danger of losing her current housing or that she will not be able to obtain housing in the short time before Defendants could be notified of her request for injunctive relief. Indeed, the Court sees no reason why Plaintiff would not be able to call the Denver Housing Authority and provide immediate notice of her Motion [#5].
The First Motion [#5] also fails to show that Plaintiff attempted to give notice of her request for a TRO to Defendants as required by Rule 65(b)(1)(B). See Brown v. Deutsche Bank Nat'l Trust, No. 10-cv-02287-ZLW-MJW, 2010 WL 4256212, at *2 (D. Colo. Sept. 28, 2010) (applying the requirement of Fed.R.Civ.P. 65(b)(1)(B) to a pro se plaintiff's motion for TRO); see also Bender v. Citimortgage Inc., No. 12-cv-02896-WYD-KMT, 2012 WL 12873517, at *1 (D. Colo. Nov. 9, 2012). Moreover, Plaintiff failed to comply with D.C.COLO.LCivR 65.1, which states that a motion for TRO “shall be accompanied by a certificate of counsel or an unrepresented party, stating: (1) that actual notice of the time of filing the motion, and copies of all pleadings and documents filed in the action to date or to be presented to the court at the hearing, have been provided to opposing counsel and any unrepresented adverse party; or (2) the efforts made by the moving party to provide the required notice and documents.” Id.
Plaintiff states, however, in the First Motion [#5] that immediate action is needed because “there appears to be a deliberate plan again to terminate her ability to have housing, and if [Defendants] know ahead of time she is filing suit, there may be an effort to pre-date something to cancel her housing voucher and slide it through as if the deed had been done before a TRO could take effect.” First Mot. [#5] at 3. Plaintiff thus asserts that she “needs the court to order [Denver Housing Authority] not do to anything negative with Plaintiff's housing account (such as canceling it) and if they have already done something wrong, they should be ordered to undo it.” Id. The Court construes this as Plaintiff's attempt to provide a reason why notice should not be provided as required by Rule 65(b)(1)(B). The Court finds, however, that this reason is not adequate.
As another court reasoned in denying an ex parte motion for injunctive relief, while the alleged actions that the plaintiff complains of by the defendants could occur without issuance of a TRO and are “certainly not inconsequential, the probability of their occurrence is purely speculative.” Zibalstar, L.C. v. Conte, No. 2:17-cv-00563-JNP, 2017 WL 2589291, at 5 (D. Utah June 14, 2017) (applying that holding to the plaintiff's argument that the defendants have “escalated their actions of trespass, conversion, and destruction” since the issuance of cease-and-desist letters, and that “further notice would only provoke further escalation . . ., so any further notice should not be required”). Similarly, Plaintiff's argument in this case that Defendants may take some action to prejudice her rights to obtain housing in connection with the Housing Program Voucher Program if they are notified of the Motion [#5] is “purely speculative.” Id. As Plaintiff's accusations are “speculative, [s]he[ ] ha[s] failed to demonstrate a truly ‘significant risk of irreparable harm.'” Id.
In the Second Motion [#10], Plaintiff states that she provided notice of the First Motion [#5] to Defendants' attorney. The Court is not convinced, however, that this notice was sufficient. While the electronic record shows that Mr. Koser represented Defendants in the last suit filed by Plaintiff, Case No. 21-cv-02431-LTB, there is no indication that Mr. Koser continues to represent Defendants or that he will represent them in the current suit, particularly given the fact that Mr. Koser has not responded to Plaintiff's emails. Moreover, Plaintiff has not shown that she attempted to give notice to the Denver Housing Authority or the Defendants themselves.
The Court believes that the appropriate recourse at this juncture is for Plaintiff to file a Motion for Preliminary Injunction that (1) demonstrates why the elements for injunctive relief are satisfied and (2) is served on Defendants. Such a motion will allow the Court the opportunity to obtain a response from Defendants and, if appropriate, set a hearing on the motion so that both parties can be heard. In light of this, Plaintiff shall not file any further Motions for Temporary Restraining Order, and may raise any issues that she has with this Recommendation through appropriate objections, as discussed below.
Based on the foregoing, IT IS HEREBY ORDERED that the previous Recommendation of United States [#39] as to Plaintiff's First Motion [#5] is VACATED, and the Clerk of Court is directed to remove the gavel from this document on the electronic record.
IT IS FURTHER ORDERED that Plaintiff shall not file any further Motions for Temporary Restraining Order unless authorized by the Court.
IT IS FURTHER RECOMMENDED that Plaintiff's Ex Parte Motion for a Temporary Restraining Order [#5] and Plaintiff's Emergency Motion for a Temporary Restraining Order [#10] be DENIED, WITHOUT PREJUDICE to Plaintiff filing a Motion for Preliminary Injunction that is served on Defendants.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).