1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 DENIS BLAIKE, et al., 10 Case No. 22-cv-04669-RS Plaintiffs, 11 v. ORDER DISSOLVING TEMPORARY 12 RESTRAINING ORDER AND DINA EL-TAWANSY, et al., DENYING PLAINTIFF’S MOTION FOR 13 PRELIMINARY INJUNCTION Defendants. 14

15 I. INTRODUCTION 16 The pro se plaintiffs in this suit are individuals experiencing homelessness who have 17 resided in an encampment beneath Highway 101 in San Rafael for over a year. On August 15, 18 2022, Plaintiffs commenced this suit against the California Department of Transportation 19 (“Caltrans”), the City of San Rafael (“the City”), and a number of state and local government 20 officials. Plaintiffs moved for a temporary restraining order (“TRO”) and preliminary injunction 21 (“PI”) to halt the planned clearing of the encampment. The TRO was granted pending a hearing 22 and an opportunity for Defendants to respond. A hearing was held on August 19, 2022 to 23 determine whether the TRO should remain in place pending the resolution of the motion for PI. 24 Plaintiffs have not met their burden for obtaining a TRO or a PI because they are unlikely 25 to succeed on the merits of their claims. For this reason, as discussed below, the TRO is dissolved 26 and the motion for PI is denied. 27 II. BACKGROUND 1 Caltrans-owned Park-and-Ride lot under Highway 101 in San Rafael. Dkt. 15, Ex. D. The SSA 2 allowed space for around fifty individuals to set up tents and store their belongings, and it 3 provided amenities including restrooms, device charging, and garbage disposal. Dkt. 15, Exs. F, 4 H. The City further offered case management services to SSA residents and worked with them to 5 find and transition into permanent housing. Dkt. 15, Ex. D. 6 From the outset, the SSA was meant to be a temporary arrangement. Caltrans and the City 7 agreed, when the SSA was established, that the lot would need to be vacated by mid-August 2022 8 so it could be used for its intended purpose. Decl. of Lynn Murphy, Dkt. 15-1 ¶ 4. As that deadline 9 drew near, City officials repeatedly notified SSA residents of the upcoming closure. Dkt. 15-1 ¶¶ 10 9–19. The City also worked to relocate residents to congregate shelters or inpatient-treatment 11 shelters, offering incentives for those who did relocate. Dkt. 15-1 ¶¶ 17–22; Dkt. 15, Ex. G. 12 Finally, on Friday, August 12, 2022, Caltrans posted an official notice at the SSA that instructed 13 the remaining residents to vacate by 7:30 AM on Tuesday, August 16, 2022. Complaint, Dkt. 1. 14 Plaintiffs subsequently commenced this suit on Monday, August 15, 2022, along with a 15 motion for TRO and PI seeking to halt the encampment clearing.1 The Complaint raises ten claims 16 for relief under

,

, 42 U.S.C. § 2000e, the Americans with 17 Disabilities Act (“ADA”), the California Constitution, and California common law. Substantively 18 the claims aver unlawful seizure, race- and disability-based discrimination, breach of contract, 19 conspiracy to violate Plaintiffs’ civil rights, and violations of Plaintiffs’ due process, First 20 Amendment, and Eighth Amendment rights. The TRO was granted on Monday, August 15, 2022 21 in light of the short notice described by Plaintiffs. 22 III. LEGAL STANDARD 23 The standard for granting a TRO and a PI are substantially the same. Stuhlbarg Int’l Sales 24

25 1 In addition to the government entities and officials noted in the Introduction, Plaintiffs also sued 26 Barbier Security, a private security contractor for the City of San Rafael. Because the Complaint contains no averments as to the firm’s role in the encampment clearing, the TRO is DISSOLVED 27 and the motion for PI is DENIED as to Barbier Security. 1 Co. v. John D. Brush & Co.,

, 839 n.7 (9th Cir. 2001). Under either standard, the 2 plaintiff must “establish that he is likely to succeed on the merits, that he is likely to suffer 3 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, 4 and that an injunction is in the public interest.” Network Automation, Inc. v. Advanced Sys. 5 Concepts,

(9th Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555

, 20 (2008)). The Ninth Circuit has held that “‘serious questions going to the merits’ and a 7 hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, 8 assuming the other two elements of the Winter test are also met.” Alliance for the Wild Rockies v. 9 Cottrell,

(9th Cir. 2011). Where a complaint is brought by pro se plaintiffs, 10 the court is obligated to evaluate the claims liberally. See Hebbe v. Pillar,

, 342 (9th 11 Cir. 2010). 12 IV. DISCUSSION 13 Even affording them the benefit of the doubt, Plaintiffs have not met their burden of 14 proving their likelihood of success on the merits. They similarly cannot meet the lower standard of 15 proving there are “serious questions going to the merits” of any of their claims. Because this is the 16 first requirement for granting a TRO/PI, it is unnecessary to assess the remaining three 17 requirements (balance of hardships, likelihood of irreparable harm, and public interest). 18 A. State-Created Danger Claims 19 The Due Process Clause of the Fourteenth Amendment provides that “[n]o state shall . . . 20 deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. 21 XIV, § 1. The California Constitution provides similar protection.2 See Cal. Const. art. I, § 7. 22 Under the state-created danger doctrine, a due process violation occurs “when the state 23 affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or 24 obvious danger.” Patel v. Kent Sch. Dist.,

, 971–72 (9th Cir. 2011) (internal quotation 25

26 2 While it is unclear whether the California Constitution recognizes the state-created danger doctrine, see Shen v. Albany United Sch. Dist.,

(N.D. Cal. 2020), the outcome 27 of Plaintiffs’ motion is the same regardless. 1 marks and citations omitted). Plaintiffs, in essence, aver that clearing the SSA would expose them 2 to a higher risk of contracting COVID-19, cut them off from service providers, and force them to 3 live on the streets. This, they argue, constitutes a state-created danger. 4 Clearing the SSA would undoubtedly be a disruptive, indeed painful experience for 5 Plaintiffs, many of whom may not know where they can go next. Here, however, the risks 6 accompanying the proposed displacement are too speculative to rise to the level of a state-created 7 danger. While Plaintiffs are understandably concerned about contracting COVID-19, risk of 8 exposure to the virus has unfortunately become an everyday reality in our society. That risk has 9 been mitigated to some degree by the widespread availability of vaccines and face masks, as well 10 as more effective treatment options. 11 Furthermore, the fact that the City offered various forms of shelter to Plaintiffs undercuts 12 the notion that the municipal government acted with deliberate indifference. The City specifically 13 asserted that each Plaintiff has been offered shelter, but that each has refused. See Decl. of Lynn 14 Murphy, Dkt. 15-1 ¶ 22. Plaintiffs do not contest this, contending instead that the shelter options 15 on offer are inadequate. Even if the shelter options are less desirable in some respects than the 16 accommodation afforded by the SSA, the fact that shelter was offered demonstrates an effort by 17 the City to mitigate the harms that would flow from displacement. Plaintiffs have also not 18 provided evidence that the available shelter options have inadequate COVID-19 safety protocols. 19 On this record, Plaintiffs are not likely to prevail on their claim that Defendants will subject them 20 to a state-created danger by clearing the SSA. 21 B. Eighth Amendment Martin Claim 22 The Eighth Amendment prohibits “cruel and unusual punishment.” U.S. Const. amend. 23 VIII. In Martin v. City of Boise,

(9th Cir. 2019), the Ninth Circuit held that the 24 Eighth Amendment “preclude[s] the enforcement of a statute prohibiting sleeping outside against 25 homeless individuals with no access to alternative shelter.”

. More generally, Martin 26 stands for the proposition that the government may not criminally punish homeless persons for 27 their conduct that is “involuntary and inseparable from status.”

. It does not, however, 1 prohibit cities from barring sleeping in a particular place. 2 Plaintiffs aver that the potential for being criminally prosecuted after being displaced from 3 the SSA raises a Martin violation. This is not the case. Caltrans here seeks only to remove 4 Plaintiffs from a particular parking lot. No citywide ban on sleeping is being enforced, nor does 5 such an official policy exist. Moreover, as discussed above, Martin is inapposite because Plaintiffs 6 do have access to alternative shelter, albeit where they otherwise would prefer not to go. Plaintiffs 7 will therefore not be able to prevail on their Eighth Amendment claims. 8 C. The Remaining Claims 9 None of the remaining claims can succeed on the merits. Plaintiffs aver that clearing the 10 SSA will result in the destruction of their property, in violation of the Fourth Amendment’s 11 prohibition on unreasonable seizures. See U.S. Const. amend. IV. Yet this is directly contradicted 12 by the official notice and by Caltrans’ filings, all of which state that Plaintiffs’ property will be 13 retained for ninety (90) days. See, e.g., Dkt. 2-1, Ex. A. Furthermore, Plaintiffs have not pleaded 14 sufficient facts to determine whether clearing the SSA would involve any discrimination on the 15 basis of race or disability status. Finally, the breach of contract, conspiracy, and First Amendment 16 claims are likewise without merit. 17 V. CONCLUSION 18 Proposed sweeps of homeless encampments have been the frequent subject of litigation in 19 this Court in recent years. This case is the most recent among them, and, so long as the state’s 20 homelessness and affordable housing crises persist, it likely will not be the last. While the 21 Constitution affords no affirmative right to housing, it is nonetheless this Court’s obligation to 22 ensure that all plaintiffs’ constitutional and legal rights are protected, and that state and local 23 governments comply with those duties. 24 For the reasons discussed above, the TRO is DISSOLVED, effective Friday, August 26, 25 2022, at 9:00 AM. The motion for a PI is DENIED. The Court nonetheless urges the parties to 26 work together to identify and transition Plaintiffs into more permanent shelter following the 27 clearing of the SSA. 1 IT IS SO ORDERED. 2 3 Dated: August 25, 2022 4 RICHARD SEEBORG 5 Chief United States District Judge 6 7 8 9 10 11 12

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Z 18 19 20 21 22 23 24 25 26 27 28 ORDER DISSOLVING TRO AND DENYING PRELIMINARY INJUNCTION CASE No. 22-cv-04669-RS