Opinion
3:21-cv-00812-AR
11-02-2022
MICHAEL O'CALLAGHAN, Plaintiff, v. CITY OF PORTLAND, and RAPID RESPONSE BIO CLEAN, Defendants.
FINDINGS AND RECOMMENDATION
JEFFREY ARMISTEAD United States Magistrate Judge.
In this civil rights action, plaintiff Michael O'Callaghan, who is living unhoused and is representing himself, asserts that defendants City of Portland (the City) and Rapid Response Bio Clean, under Portland City Code 14A.50.020 and other policies, have forcibly removed him from campsites over twenty-five times, repeatedly confiscated his personal property, and continue to monitor, harass, and target him for campsite “sweeps.” Those actions, O'Callaghan alleges, violate the equal protection clause, the due process clause, and the Fourth and Eighth Amendments.
Before the court is O'Callaghan's motion for injunctive relief, which the court construes as a motion for preliminary injunction. O'Callaghan points to Oregonian articles that describe statements by the City's Mayor Ted Wheeler during a June 13, 2022, press conference in which Wheeler touted the success of a sweep of homeless encampments in the Old Town neighborhood of Portland and a plan to use similar strategies citywide. O'Callaghan describes the plan as the City's “new policy” and asks that the court prevent it by ordering injunctive relief. For the reasons explained below, the motion should be denied.
BACKGROUND
On July 13, 2022, O'Callaghan filed this one-page motion for injunctive relief, contending that the “process of ‘sweeps' has morphed to the Old Town displacement so the parade ro[ute] was cleared” and that “Mayor Ted Wheeler has said he will take this action city wide.” Mot. for Inj. Relief (Mot.) at 2, ECF No. 41. Attached to O'Callaghan's motion are several newspaper articles, which generally describe a 90-day “reset” aimed at cleanup and crime reduction in Old Town. Mot. at 12. The articles describe an “abatement sweep” occurring on May 5, 2022, before a Lunar New Year parade, and that the sweep provided houseless individuals with only 24 hours' notice before their belongings were removed. Mot. at 16. An article dated June 15, 2022, describes the sweeps and quotes Wheeler:
The Street Services Coordination Center, a collaboration between the city and Multnomah County, was launched in March to ensure that people living unsheltered are provided resources before their camps are swept. Wheeler called it a “coordinated, compassionate response.”
“This neighborhood is our incubator,” Wheeler said. “I think we have a very good formula here and I look forward to using it across the city....We are seeing early positive results of those efforts.”Mot. at 8. Another Oregonian article, dated July 10, 2022, states that Wheeler announced his plan to apply what happened in Old Town to “similar large encampment removals.” Mot. at 11. In O'Callaghan's view, the City's adoption of a “new policy” does not provide adequate notice or a process for property recovery, risking confiscation of his and thousands of others' property. Mot. at 2.
On September 26, 2022, O'Callaghan filed a writ of mandamus in the Ninth Circuit. Writ of Mandamus (Writ) at 2, ECF No. 69. On October 21, 2022, the Ninth Circuit issued a Notice indicating that O'Callaghan has not demonstrated that the case warranted mandamus intervention. Notice, ECF No. 74.
Additionally, the City and Rapid Response have moved for summary judgment and O'Callaghan moved to reopen discovery and for summary judgment. ECF Nos. 59, 63, 70, 75. The court has held the summary judgment motions in abeyance pending resolution of O'Callaghan's motion to reopen discovery. Orders ECF Nos. 71, 73, 76.
DISCUSSION
O'Callaghan urges the court to order defendants to stop the “new policy” citywide. He also asks the court to order defendants to show the alleged new policy provides due process and complies with ORS § 203.077, an Oregon law that requires local governments to develop and implement the “most humane treatment” during homeless camp removals. Mot. at 2. Defendants respond with four arguments: O'Callaghan's contentions are based on mischaracterization of a June 13, 2022, statement made by Wheeler at a press conference; because O'Callaghan has not been injured by the sweeps, he lacks standing to pursue injunctive relief; O'Callaghan cannot show he is likely to succeed on the merits of his procedural and substantive due process claims and cannot show irreparable harm; and O'Callaghan failed to confer in good faith under Local Rule 7-1.
As a preliminary matter, the court observes that the City's purported new policy of abatement sweeps is not alleged in O'Callaghan's amended complaint (ECF No. 11). The allegations in the amended complaint relate to actions before the purported new policy took effect. Nevertheless, the court addresses the motion, assuming without deciding that the motion is sufficiently related to the allegations of O'Callaghan's complaint. The court concludes that O'Callaghan lacks standing and that he has not made the clear showing necessary for the court to order the injunctive relief he seeks.
A. Standing
O'Callaghan must establish standing for each claim or relief sought. Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). To establish standing for injunctive relief here, O'Callaghan must show: (1) that he has suffered an “injury in fact” that is “concrete and particularized” and “actual or imminent”; (2) a causal connection between the injury and defendants' conduct; and (3) that his injury can be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Spokeo v. Robins, 578 U.S. 330, 338-39 (2016). Injunctive relief is a prospective remedy, and the threat of injury must therefore be “actual and imminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). That is, the “threatened injury must be certainly impending to constitute injury in fact” and “allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (simplified).
To begin with, O'Callaghan has not shown actual injury. The City's abatement sweeps occurred in Old Town and, in his amended complaint, O'Callaghan alleges that he lives in southeast Portland near McLoughlin Boulevard and the Ross Island Bridge. Mot. Amend. at 1, ECF No. 11. O'Callaghan has not shown that his personal belongings were confiscated in the Old Town sweeps. Also, O'Callaghan's standing to pursue past injuries does not necessarily mean that he has standing to pursue injunctive relief on a different basis. Mayfield, 599 F.3d at 969; see City of L.A. v. Lyons, 461 U.S. 95, 102 (1983) (noting past exposure to unconstitutional conduct does not by itself show a present case or controversy warranting injunctive relief). Therefore, he has not established an “actual” injury under the City's alleged new policy. Spokeo, 578 U.S. at 340 (discussing that injury must affect the plaintiff in a personal way).
As to imminent injury, O'Callaghan contends that Wheeler intends to take the alleged new policy “city wide” and that this is “a clear threat.” Mot. at 2. O'Callaghan has not, however, established that the policy poses an immediate danger to him. O'Callaghan's allegations are premised on the recounting of Wheeler's announcement of replicating the Old Town sweeps to other large encampment removals. Yet neither O'Callaghan nor the newspaper articles on which he relies specify the timeframe of the new policy, where it will be applied, and whether it will affect the place where O'Callaghan resides. Given that lack of specificity, the threat of injury to O'Callaghan is too conjectural to establish injury in fact. Moreover, O'Callaghan may not assert the rights of other houseless individuals. See Singleton v. Wulff, 428 U.S. 106, 114 (1976) (“Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.”); C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (“Although a non-attorney may appear [on] his own behalf, that privilege is personal to him. He has no authority to appear as an attorney for others than himself.” (Citation omitted)).
Accordingly, the court finds that O'Callaghan lacks standing to pursue the injunctive relief he seeks and the motion should be denied on that basis.
B. Preliminary Injunction
In addition to O'Callaghan's absence of standing to challenge the alleged new policy, O'Callaghan's motion for injunctive relief should nevertheless be denied because he has not made the necessary showing.
A preliminary injunction is an “extraordinary remedy” and should be granted only if the moving party, “by a clear showing, carries the burden of persuasion.” Norbert v. City and Cnty. of San Francisco, 10 F.4th 918, 927 (9th Cir. 2021). A party seeking a preliminary injunction must show that: (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm without preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). “When the government is a party, [the] last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). In the Ninth Circuit, a “sliding scale” and “serious questions” approach is applied. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). That approach allows “a stronger showing of one element to offset a weaker showing of another.” Doe v. Snyder, 28 F.4th 103, 111 (9th Cir. 2022). In particular, “a preliminary injunction could issue where the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff's favor,” “so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Cottrell, 632 F.3d at 1135.
O'Callaghan has not shown he is likely to succeed on the merits of his claims. To the extent his existing procedural and substantive due process claims could be amended to encompass the City's purported new policy, when considering the evidence submitted, the court cannot find that O'Callaghan has made a clear showing that his procedural due process claim is likely to succeed. O'Callaghan's allegations of defendants sweeping camps without notice or an opportunity for property recovery rests on newspaper articles and his own speculation about how the purported new policy may be applied to him. The allegations are insufficient to satisfy the clear showing that he is likely to succeed on his substantive due process claim.
Likewise, O'Callaghan fails to show that irreparable injury is likely in the absence of an injunction. O'Callaghan's motion rests on the allegations that Wheeler's announced policy lacks sufficient notice of sweeps and a means to recovery. Even assuming that the reporting of that announcement is, in fact, the City's policy for addressing large encampments, the reporting does not sufficiently set out the specifics of what notice the City will provide and how the houseless can recover their property. Without those specifics, the court is unable to assess whether there is a likelihood of irreparable harm, and, therefore, O'Callaghan has not made the necessary showing of that Winter factor.
Without a sufficient showing of those two factors-likelihood of success and irreparable harm-a finding in O'Callaghan's favor on the remaining two Winter factors would not help him. O'Callaghan must meet all four factors to obtain injunctive relief. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 F.3d at 1135 (Winter requires a plaintiff to make a showing on all the Winter factors). Consequently, the court need not consider whether the balance of hardships tips in O'Callaghan's favor and whether an injunction is in the public interest. Similarly, in the absence of likelihood of irreparable harm, the court need not consider whether the “serious questions” approach would merit a preliminary injunction. See Cottrell, 632 F.3d at 1135 (noting that Winter requires a showing of likelihood of irreparable injury).
CONCLUSION
Because O'Callaghan lacks standing and has not made the clear showing necessary for a preliminary injunction, the Motion for Injunctive Relief (ECF No. 41) should be DENIED. The court also cautions O'Callaghan-again-that under Local Rule 7-1 he must confer in good faith and attempt to resolve any dispute with defendants before filing a motion in this court. Failing to confer with defendants before filing a motion is a basis for denying the motion.
SCHEDULING ORDER
The Findings and Recommendation will be referred to District Judge Michael H. Simon. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.