The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:23-cv-00259-MR-WCM
JOHN P. MIALL, JR., ROBYN HITE, )
DAVID SHAW, DANIE JOHNSON, )
and WILLA GRANT, )
)
Plaintiffs, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
CITY OF ASHEVILLE, DEBRA )
CAMPBELL, in her official capacity )
as City Manager of the City of )
Asheville, and ESTHER MANHEIMER, )
in her official capacity as Mayor of )
City of Asheville, )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on the Defendants’ Motion to
Dismiss [Doc. 4] and the Plaintiffs’ Emergency Motion for a Temporary
Restraining Order and Preliminary Injunction [Doc. 7].
I. PROCEDURAL BACKGROUND
The Plaintiffs John P. Miall, Jr., Robyn Hite, David Shaw, Danie
Johnson, and Willa Grant (collectively, “the Plaintiffs”) initiated this action on
September 5, 2023, seeking, among other relief, a declaratory judgment
under the Declaratory Judgment Act, 28 U.S.C. § 2201, that the Defendants
City of Asheville, Debra Campbell, and Esther Manheimer (collectively “the
Defendants”) have and are employing illegal discriminatory policies and
procedures on the basis of race in creating and administering a city advisory
board, The Human Relations Commission (HRCA). The Plaintiffs, who are
all white City of Asheville residents, claim that the race-based appointment
preferences utilized by the Defendants disadvantage applicants who are not
racial minorities, in violation of Title VI of the Civil Rights Act of 1964, 42
U.S.C. §2000(d) et seq. (“Title VI”), the Equal Protection Clause of the 14th
Amendment to the United States Constitution, and 42 U.S.C. §§ 1981 and
1983. [Doc. 1].
On September 26, 2023, the Plaintiffs filed an Amended Complaint,
asserting a putative class action and seeking additional injunctive relief.
[Doc. 5].
On September 27, 2023, the Plaintiffs filed the present Emergency
Motion for a Temporary Restraining Order and Preliminary Injunction,
seeking to enjoin the Defendants from (1) appointing members to the HRCA
using race-based appointment preferences and (2) otherwise discriminating
on the basis of race in making appointments to the HRCA. [Doc. 7].
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II. STANDARD OF REVIEW
A plaintiff seeking interim injunctive relief, either through temporary
restraining order or a preliminary injunction, must demonstrate that (1) he is
likely to succeed on the merits, (2) it is likely to suffer irreparable harm absent
injunctive relief, (3) the balance of the equities tips in his favor, and (4) the
injunction would be in the public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). “A preliminary injunction is an extraordinary
remedy never awarded as of right.” Id. at 24. A plaintiff seeking a preliminary
injunction “need not establish a certainty of success, but must make a clear
showing that he is likely to succeed at trial.” Di Biase v. SPX Corp., 872 F.3d
224, 230 (4th Cir. 2017) (internal quotation marks omitted). Ultimately, a
plaintiff’s entitlement to preliminary injunctive relief is a matter of discretion
with the Court. See Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty
Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013).
III. DISCUSSION
In order to seek the extraordinary remedy of preliminary injunctive
relief, the Plaintiffs must show that they are likely to succeed on the merits
of their claims and that they are also likely to suffer irreparable harm in the
interim period absent the requested injunction. Even assuming that the
Plaintiffs could demonstrate that they are likely to prevail on their claims, the
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Plaintiffs have failed to show that they will be irreparably harmed absent
preliminary injunctive relief. The Plaintiffs allege that the Defendants are
scheduled to appoint members to the HRCA at the Asheville City Council
meeting on October 10, 2023. The Plaintiffs’ applications to the HRCA are
still pending. To the extent that any of the Plaintiffs are not appointed by the
HRCA at the October 10, 2023 City Council meeting, and such Plaintiffs are
not appointed as a result of some unlawful action by the Defendants, then
any such harm can be remedied by further order of this Court. Accordingly,
the Plaintiffs’ request for a temporary restraining order is denied. The
Plaintiffs’ request for a preliminary injunction is denied without prejudice.
On September 14, 2023, the Defendants filed the present Motion to
Dismiss, seeking to dismiss the Plaintiffs’ Complaint pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. [Doc. 4]. With
the filing of the Plaintiffs’ Amended Complaint, which was filed as of right,
see Fed. R. Civ. P. 15(a)(1), the Defendants’ Motion to Dismiss the Plaintiffs’
Complaint has been rendered moot and will be denied as moot.
O R D E R
IT IS, THEREFORE, ORDERED that the Defendants’ Motion to
Dismiss [Doc. 4] is DENIED AS MOOT.
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IT IS FURTHER ORDERED that the Plaintiffs’ Emergency Motion for
a Temporary Restraining Order [Doc. 7] is DENIED, and the Plaintiffs’ Motion
for a Preliminary Injunction [Doc. 7] is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Signed: September 28, 2023
wail
< Reidinger Ls,
Chief United States District Judge