Benson v. Kittitas County

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON DOUGLAS BENSON, NO. 1:23-CV-3149-TOR 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTIONS FOR TEMPORARY RESTRAINING ORDER, ETC. KITTITAS COUNTY, COMMISSIONER BRETT WACHSMITH, COMMISSIONER LAURA OSIADACZ, COMMISSIONER CORY WRIGHT, PROSECUTOR GREGORY ZEMPEL, SHERIFF CLAYTON MYERS, and TREASURER AMY CZISKE, 15 Defendants.

17 BEFORE THE COURT are Plaintiff’s Emergency Motion for Expedited Preliminary Injunction (ECF No. 2); Motion for Temporary Restraining Order (ECF No. 7); Motion to Strike Appearance of Counsel and Default Judgment (ECF No. 8); and Notice to Immediately Expedite Temporary Restraining Order (ECF No. 10). These matters were submitted for consideration without oral argument.

2 The Court has reviewed the record and files herein and is fully informed. For the reasons discussed below, the motions are DENIED.

4 BACKGROUND 5 Plaintiff Douglas Benson is a party in an ongoing code enforcement action in Kittitas County Superior Court. With this federal lawsuit, he seeks to enjoin a warrant of abatement issued by the state court on September 1, 2023. State court litigation about the warrant of abatement is ongoing. Mr. Benson also seeks damages against the County and six elected officials pursuant to 42 U.S.C. § 1983.

10 Defendants have filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alterative, abstain pursuant to Younger v. Harris, 401 U.S. 37, 44-45 (1971). ECF No. 6. The motion is set for hearing without oral argument on December 15, 2023.

14 DISCUSSION 15 I. Temporary Restraining Order / Injunction 16 Pursuant to Federal Rule of Civil Procedure 65, a district court may grant a TRO in order to prevent “immediate and irreparable injury.” Fed. R. Civ. P. 65(b)(1)(A). The analysis for granting a TRO is “substantially identical” to that for a preliminary injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). It “is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

3 To obtain this relief, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable injury in the absence of preliminary relief; (3) that a balancing of the hardships weighs in plaintiff’s favor; and (4) that a preliminary injunction will advance the public interest. Winter, 555 U.S. at 20; M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012). Under the Winter test, a plaintiff must satisfy each element for injunctive relief.

9 Alternatively, the Ninth Circuit also permits a “sliding scale” approach under which an injunction may be issued if there are “serious questions going to the merits” and “the balance of hardships tips sharply in the plaintiff’s favor,” assuming the plaintiff also satisfies the two other Winter factors. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“[A] stronger showing of one element may offset a weaker showing of another.”). “[T]he district court ‘is not bound to decide doubtful and difficult questions of law or disputed questions of fact.’” Int’l Molders’ and Allied Workers’ Local Union No. 164 v. Nelson, 799 17 F.2d 547, 551 (9th Cir. 1986). In the same vein, the court’s factual findings and legal conclusions are “not binding at trial on the merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The moving party bears the burden of persuasion and must make a clear showing of entitlement to relief. Winter, 555 U.S. at 22.

3 A. Likelihood of Success on the Merits 4 Plaintiff’s main legal theory is that the defendants’ conduct was unlawful because Kittitas County has “no official county code.” Plaintiff also alleges that oaths of office and official seals completed by public officials and superior court judges are invalid.

8 The Court can take judicial notice of duly enacted ordinances of Kittitas County. Fed. R. Evid. § 201(b).

10 Plaintiff’s allegation that County officers and state judges do not hold office because of the manner in which they signed their oath of office is meritless.

12 Plaintiff has not shown that he will succeed on the merits of his claims.

13 B. Irreparable Harm 14 Plaintiff has not shown irreparable harm, especially considering that the matter still is pending in the State courts. According to Younger v. Harris, 401 16 U.S. 37, 44-45 (1971), it appears this Court should abstain from this dispute while it is being litigated in State court. Plaintiff has not shown that this Court should interject itself into ongoing Sate litigation.

19 C. Balance of Equities 20 The equities tip sharply in favor of the County for many of the same reasons that Younger abstention appears appropriate. A temporary restraining order would preclude the County from enforcing its own ordinances and removing nuisance conditions that may pose a health and safety risk to the public. Here, the balancing of equities tips heavily in favor of the evidenced-backed decisions of the government regarding public health and safety measures.

6 D. Public Interest 7 Because the State court has determined that nuisance conditions exist on Plaintiff’s property and has ordered they be abated, the public interest favors the Defendants.

10 II. Motion to Strike Appearance of Counsel and Default Judgment 11 Plaintiff contends that counsel for the Defendants cannot represent them and is committing fraud. Following that line of reasoning, Plaintiff seeks default judgment against the Defendants.

14 Counsel for the Defendants is a licensed and fully qualified attorney in the State of Washington. Counsel timely filed a Motion to Dismiss or Abstain and therefore Defendants are not considered in default.

17 Plaintiff’s Motion is denied.

18 ACCORDINGLY, IT IS HEREBY ORDERED: 19 1. Plaintiff’s Emergency Motion for Expedited Preliminary Injunction (ECF 20 No. 2) is DENIED.

1 2. Plaintiff's Motion for Temporary Restraining Order (ECF No. 7) is 2 DENIED.

3 3. Plaintiff's Motion to Strike Appearance of Counsel and Default 4 Judgment (ECF No. 8) is DENIED.

5 4. Plaintiffs Notice to Immediately Expedite Temporary Restraining Order 6 (ECF No. 10) is DENIED.

7 The District Court Executive is directed to enter this Order and furnish || copies to the parties.

9 DATED October 30, 2023.

1 CO a) Se Wa 0. Kies 11 On KES THOMAS O. RICE <> United States District Judge ORDER DENYING PLAINTIFF’S MOTIONS FOR TEMPORARY