Thompson v. Central Valley School District No 365

1 U.S. FDILISETDR IINC TT HCEO URT EASTERN DISTRICT OF WASHINGTON Nov 01, 2021 SEAN F. MCAVOY, CLERK 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON RANDEY THOMPSON, No. 2:21-CV-00252-SAB 11 Plaintiff, 12 v. CENTRAL VALLEY SCHOOL DISTRICT NO. 365; BEN SMALL, ORDER DENYING individually as Superintendent of the PLAINTIFF’S MOTION FOR Central Valley School District, CENTRAL TEMPORARY RESTRAINING VALLEY SCHOOL DISTRICT NO. 365 ORDER AND PRELIMINARY BOARD OF EDUCATION and in their INJUNCTION individually capacity BOARD OF EDUCATION MEMBERS and DIRECTORS DEBRA LONG, MYSTI RENEAU, KEITH CLARK, TOM KINGUS, and CYNTHIA MCMULLEN 24 Defendants.

26 Before the Court is Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 7. A hearing on the motion was held on October 29, 2021, in Spokane, Washington. Plaintiff was represented by Robert Greer and Michael Love. Defendant was represented by Michael McFarland and Rachel Platin.

3 At the conclusion of the hearing, the Court orally denied Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction. This Order 5|| memorializes the Court’s oral ruling.

Background Prior to August 2020 Plaintiff was an assistant principal at Evergreen Middl School, which is in the Central Valley School District (CVSD). He started working CVSD in 1991. After watching the Democratic National Convention, Plaintiff 10|| posted his thoughts about the convention on Facebook. The following post was on Facebook: ae Pee) ee a 4 = et - 14 Hy Randey Thompson 15 ae Leen Tetras could retire on Michelle Obama's rant alone. What 8 | hatefull racists bitch. If you need to lie to try and win 6 | you are just shit. If you believe them you are even worse. Wake the fuck up Ee wtb 7 □□ cece Wen “ah pedophile man) and the former DNC, now just the little bitch of 18 er cit ra Greet Cotry and he rest of Use gawu wert of ole act and going to take you to the 19 eee rae a forthe ra tide. Lets see a long | until the FB liberal defenders take this one down.

20 | Oos 6 Comments 21 uike = Comment) Sena □ 22 Although he maintains it was a private post to a select group, it appears it was posted so that others could see it. Plaintiff asserts that he did not post the above-captured post. Instead, he maintains that he posted the following: ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER ANT) PRET IMINARYV INJITINCTION ~ 9

a 4 Ce 3 = Pe — en: ee □□ 3 < aye . <i Demtard convention opens and the only facts spoken were the names. lie after lie. The fact checkers could 5 ean Tyaimetss ney ol a Tenkuacaewe Poe cork we fame. = are being ee Patiereiananmeaemes: 4,02 aoe," a g Doroes scale. You we nivel 9 Seine tira cou cleat May God help you to pull your heads Sie were Loe ous ow tay eal | 0 ere liberal defenders take this one down.

11 □ 12 In the ensuing months, Plaintiff maintained that his Facebook account was 13|| hacked and someone else posted the first example of the post.

14 One person who viewed the first Facebook post believed it to be offensive 15|| and the post was forwarded on to at least three other CVSD employees until it 16|| reached Ben Small, the Superintendent of CVSD. He also thought it was offensive 17|| and placed Plaintiff on administrative leave on August 19, 2020. Eventually, 18|| Plaintiff was demoted from his assistant principal job and is now teaching in the classroom for CVSD.

20 Plaintiff filed suit on August 23, 2021, alleging claims for violation of his 21|| First Amendment rights. Ultimately, he is seeking to be reinstated as assistant 22\| principal at Evergreen Middle School, as well as compensatory and special 23|| damages, punitive damages and attorneys’ fees.

24 On September 20, 2021, Plaintiff filed his Motion for Temporary 25|| Restraining Order and Preliminary Injunction.

26 Motion Standard 27 “A preliminary injunction is a matter of equitable discretion and is ‘an 28|| extraordinary remedy that may only be awarded upon a clear showing that a ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND) PRET IMINARY INJITINCTION ~ 2 plaintiff is entitled to such relief.’” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (quoting Winter v. NRDC, 555 U.S. 7, 22 (2008)). “A party can obtain a preliminary injunction by showing that (1) it is ‘likely to succeed on the merits,’ (2) it is ‘likely to suffer irreparable harm in the absence of preliminary relief,’ (3) ‘the balance of equities tips in [its] favor,’ and (4) ‘an injunction is in the public interest.’” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting Winter, 555 U.S. at 20).

8 The Ninth Circuit uses a “sliding scale” approach in which the elements are “balanced so that a stronger showing of one element may offset a weaker showing of another.” Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (quotation omitted). 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). This means that when the government is a party, the court considers the balance of equities and the public interest together. Azar, 911 F.3d at 575. “[B]alancing the equities is not an exact science.” Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring) (“Balancing the equities . . . is lawyers’ jargon for choosing between conflicting public interests”)).

18 A plaintiff seeking preliminary relief must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. The analysis focuses on irreparability, “irrespective of the magnitude of the injury.”

21 Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999). Economic harm is not normally considered irreparable. L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).

24 Due to the exigent nature of a preliminary injunction, a court may consider hearsay and other evidence that would otherwise be inadmissible at trial. Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009).

27 To the extent that Plaintiff is seeking money damages and back pay for the loss of his administrative job, his remedy at law is adequate. See Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1321 (9th Cir. 1994). Thus, the only issue currently before this Court is whether Plaintiff should be reinstated as Assistant Principal at Evergreen Middle School.

4 Preliminary relief may take two forms: it may be prohibitory or mandatory in nature. “A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.”

7 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009) (alterations and quotation marks omitted). A mandatory injunction orders a responsible party to “take action.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). It “goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored.” Stanley, 13 F.3d at 1320 (quotations omitted). The Ninth Circuit has observed that “courts should be extremely cautious about issuing a preliminary injunction” in those circumstances. Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984). When a mandatory preliminary injunction is requested, the district court should deny such relief unless the plaintiff can establish that the facts and law clearly favor him, not simply that he is likely to succeed. Garcia, 786 F.3d at 740. Consequently, “[i]n general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.” Marlyn Nutraceuticals, 571 F.3d at 879.

21 Analysis 22 Here, the Court finds that Plaintiff has not meet the requirements for obtaining a mandatory preliminary injunction. First, Plaintiff cannot show irreparable harm in the absence of an injunction. Plaintiff seems to be arguing that simply because he is alleging his First Amendment rights are violated, the Court should find he has suffered irreparable harm. But the cases relied on by Plaintiff for that assertion deal with prior restraint of speech by the government. See e.g. Elrod v. Burns, 427 U.S. 347 (1976) (holding that retention of government jobs cannot be based on employee’s political belief or political affiliation); Reno v. ACLU, 521 U.S. 844 (1997)(challenging the constitutionality of provisions of Communications Decency Act seeking to protect minors from harmful material on internet). Here, Plaintiff is not arguing that CVSD is currently restraining his speech. Instead, he asserts CVSD is retaliating against him for speech that was made in the past. Moreover, Plaintiff is still employed with CVSD. Because his salary is significantly less, however, it may be that Plaintiff is experiencing harm, but it is clear the harm is not “irreparable.”

9 Additionally, Plaintiff has not shown that the law and facts are clearly in his favor, or that there are serious questions going to the merits. There is nothing in the record to suggest that CVSD took any adverse action because of Plaintiff’s political views or his affiliation with any political party. Rather, the record strongly suggests that CVSD took the action it did because of Plaintiff’s use of certain words, including using the term “Demtard,” calling the former First Lady a racist “bitch,” using the term “short bus” in a derogatory manner, and calling students “snowflakes” and “Tide Pod challenged,” and because it believed that not only did Plaintiff not cooperate with the investigation, but he also lied to school officials.

18 In sum, Plaintiff has not met his burden of showing that the requested preliminary injunction is required or proper.

20 // // // // // // // // // 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 7, is DENIED.

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order 5|| and forward copies to counsel.

DATED this Ist day of November 2021.

9 ‘ Shockey ec toar Stanley A. Bastian 12 Chief United States District Judge ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER ANT) PRET IMINARYV INJTINCTION ~ 7