Kirkham v. City of Bellingham

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE RICHARD ARTHUR KIRKHAM, 8 Plaintiff, Case No. C24-1625-DGE-SKV 9 v. REPORT AND RECOMMENDATION CITY OF BELLINGHAM, et al., 11 Defendants.

13 INTRODUCTION 14 Plaintiff Richard Arthur Kirkham proceeds pro se in this 42 U.S.C. § 1983 civil rights action. Now pending before the Court is Plaintiff’s Motion for Injunction. Dkt. 12. Defendants oppose the motion. Dkt. 17. The Court, having considered the motion, papers filed in support and opposition, and the remainder of the record, recommends Plaintiff’s request for injunctive relief be DENIED.

19 BACKGROUND 20 Plaintiff filed this lawsuit while being held as a pretrial detainee at Whatcom County Jail and awaiting trial on unspecified criminal charges pending against him in Whatcom County Superior Court. See Dkts. 1, 4 & 6-1. He has since been transferred to the Interim Work Center in Bellingham, Washington. See Dkt. 24.

1 Plaintiff raises more than fifty claims against named Defendants City of Bellingham, Bellingham Police Department (BPD) Chief Rebecca Mertzig, Deputy Chief Donald Almer, Sergeant Jeremy Harper, Corporals Shaun Nelson and John Doe Haas, K9 Officer Jeremy Woodward, and Officers Kaige Edgard, Nicolaus Sturlaugson, Steven Longbottom, Dhillon Jobandeep, Avery Lyons, John Doe Bean, and David Johnson. Dkt. 4. His claims and requests for relief relate to events leading up to and occurring on the date of his arrest by BPD officers on September 28, 2023. See id. at 16-31. He alleges, for example, that Defendants falsified reports in order to justify activating a SWAT team to effectuate his arrest, and the use of excessive force resulting in grievous bodily injury and disfigurement. See id. He requests as relief a declaratory judgment providing that the actions taken in relation to his arrest violated his constitutional rights, an injunction preserving as evidence body camera and police vehicle video and audio recordings and related documents, reports, and text messages, and compensatory and punitive damages. Id. at 28-31.

14 The Court issued an Order to Show Cause, raising questions as to the viability of Plaintiff’s proposed claims, and, after Plaintiff submitted a response, served the Complaint on the named Defendants. Dkts. 7, 10-11. The Court also twice denied Plaintiffs’ motions for appointment of counsel, and directed the filing of a response to the motion for injunctive relief.

18 Dkts. 6, 8, 12 & 15.

19 LEGAL STANDARD 20 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain preliminary injunctive relief, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Id. at 20. Alternatively, “‘if a plaintiff can only show that there are serious questions going to the merits – a lesser showing than likelihood of success on the merits – then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are satisfied.’”

5 Alliance for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoted sources omitted). Preliminary injunctive relief should not be granted unless a movant, “‘by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoted source omitted; emphasis added by Supreme Court).

9 Injunctive relief can be prohibitory or mandatory. A mandatory injunction “orders a responsible party to take action,” while a prohibitory injunction “prohibits a party from taking action and preserves the status quo” while litigation is pending. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060 (9th Cir. 2014) (internal quotation marks and quoted source omitted). Mandatory injunctions are particularly disfavored, and, in general, “‘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, Inc. v. Mucas Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoted sources omitted).

17 Where a mandatory injunction is sought, a party “must establish that the law and facts clearly favor her position, not simply that she is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 19 733, 740 (9th Cir. 2015) (en banc).

20 DISCUSSION 21 Plaintiff asserts that, on January 24, 2024, he reviewed body worn camera footage of his arrest, and “discovered that unknown Defendants and/or their agents have tampered with, altered, and/or destroyed evidence which prove his claims.” Dkt. 12 at 2; Dkt. 13, ¶¶7, 9. He asserts that, while the footage accurately portrays some of the events on the day of his arrest, it has also been “altered using ‘deep fake’ software and/or video editing software[]” to remove portions of the footage supporting his claim. Dkt. 13, ¶¶10-14. He asserts that the footage nonetheless proves his excessive force claims, that the evidence tampering will be determined through professional examination, that tampering is likely to continue without the Court’s intervention, and that he fears for his safety. See Dkts. 12-13.

7 Plaintiff asks for an injunction ordering Defendants and/or their agents to immediately compile and preserve all video footage, police communications, personnel information, and screenshots of file histories, user access, and specific file path designations. Dkt. 12 at 7. He specifically requests that the Court issue an order directing Defendants to “‘create new documents.’” Dkt. 25 at 8 (“Plaintiff’s requested relief includes requiring Defendants to create screenshots and gather/compile information that is not independently complete, . . . that is, Plaintiff requests Defendants be ordered to ‘create new documents.’”). Defendants argue that Plaintiff fails to meet his burden of demonstrating his entitlement to preliminary injunctive relief.

15 The Court, for the reasons discussed below, agrees with Defendants.1 16 In asking that Defendants take specific actions, Plaintiff seeks mandatory injunctive relief. He does not, however, demonstrate that the law and facts clearly favor his position.

18 Further, even if construed as seeking a prohibitory injunction, Plaintiff fails to show either a Amongst other arguments, Defendants deny that any evidence has been altered or tampered with, and assert that the evidence has been maintained in accordance with State and BPD retention policies, that all body worn videos are saved and stored by a third-party company, and that any access to those videos is recorded in an audit log. See Dkt. 18, ¶¶3-5, Exs. A-B. Plaintiff argues that the declaration submitted in support of these contentions, see id., should be disregarded because it is not based on firsthand knowledge. The Court finds no need to consider Defendants’ declaration in ruling on the motion for preliminary injunctive relief, and thus no need to address this argument.

1 likelihood of success on or serious questions going to the merits.2 2 As an initial matter, and as Defendants observe, Plaintiff admits that significant portions of the video evidence he reviewed do not support his allegations in this lawsuit. See Dkt. 13, ¶¶10-14 (“The beginning of the footage I reviewed began exactly as I said it would[.] . . . The footage from that point has been altered using ‘deep fake’ software and/or video editing software.”). He contends, for example, that the footage has been altered to remove portions of the video showing “me not resisting or struggling”, and “Defendant Woodward forcing K-9 Rudy to attack me while other officers held me[.]” Id., ¶¶12-13.

9 Plaintiff does not, moreover, identify support for his allegation of evidence tampering.

10 Instead, Plaintiff merely asserts that the evidence has been altered by unknown persons, and that he will be able to prove this assertion through “professional examination” of various factors.

12 See, e.g., id., ¶¶12-19. Plaintiff’s unsupported, conclusory assertions do not satisfy the threshold inquiry necessary to allow the Court to grant the extraordinary relief requested. See generally Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (“Likelihood of success on the merits is the most important Winter factor; if a movant fails to meet this threshold inquiry, the court need not consider the other factors in the absence of serious questions going to the merits.”) (cleaned up and internal citations omitted).

18 Plaintiff also fails to demonstrate a likelihood he will suffer irreparable harm in the absence of the preliminary relief. “At a minimum, a plaintiff seeking preliminary injunctive relief must demonstrate that it will be exposed to irreparable harm.” Caribbean Marine Servs.

21 Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). “Speculative injury does not constitute It should also be noted that, given the greater showing required, courts have declined to apply the alternative, “serious questions” preliminary injunctive relief standard to cases involving mandatory injunctions. See, e.g., Maney v. Brown, 516 F. Supp. 3d 1161, 1172 n.8 (D. Or. 2021); P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1126, 1135 (C.D. Cal. 2015).

1 irreparable injury sufficient to warrant granting preliminary relief. A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.” Id. (internal and other citations omitted).

5 Plaintiff here asserts that the alleged evidence tampering is likely to continue without the Court’s intervention, that he lacks the means to prove the tampering occurred or to hire an attorney, and that he fears for his life and safety. See Dkts. 12-13. Again, however, Plaintiff fails to identify support for his allegation of evidence tampering, and relies on his mere assertion the tampering occurred. He likewise explains his fear as based on his contention of evidence tampering. Dkt. 13, ¶17 (“Since the moment I viewed the clearly edited video footage I have been in fear for my life and safety: If officers are willing to tamper with evidence to cover their criminal assaults, what will they do to me, or have done to me, while I am in custody?”).

13 It further remains that Defendants have an existing obligation to preserve evidence. See Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051 (S.D. Cal. 2015) (“A party must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence.”). Should Defendants violate that duty, the Court has the power to impose sanctions. See Fed. R. Civ. P. 37. Plaintiff may also seek documentation and other relevant information through discovery.

19 See Fed. R. Civ. P. 33 & 34. He does not, under these circumstances, demonstrate he will be harmed in the absence of an order granting the preliminary injunctive relief requested.

21 Nor does Plaintiff otherwise demonstrate his entitlement to a preliminary injunction.

22 Satisfaction of the mandatory injunctive relief requested would impose significant burdens of time and expense on the public entity and officers named in this lawsuit, and is not necessary in light of Defendants’ existing obligation to preserve evidence and Plaintiff’s ability to secure documents and other relevant information through discovery. The balance of equities therefore do not tip in Plaintiff’s favor, and an award of the relief requested would not serve the public interest.

5 CONCLUSION 6 The Court, in sum, concludes that Plaintiff fails to demonstrate his entitlement to preliminary injunctive relief. The Court therefore recommends Plaintiff’s Motion for Injunction, Dkt. 12, be DENIED. A proposed order accompanies this Report and Recommendation.

9 OBJECTIONS 10 Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit not later than fourteen (14) days from the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge’s motions calendar fourteen (14) days from the date they are filed. Responses to objections may be filed by the day before the noting date. If no timely objections are filed, the matter will be ready for consideration by the District Judge on June 4, 2025.

17 Dated this 14th day of May, 2025.

A 20 S. KATE VAUGHAN United States Magistrate Judge