The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
FRANCIS STEFFAN HAYES; Civ. No. 1:20-cv-01332-CL
Plaintiff, OPINION & ORDER
v.
STATE OF OREGON;
KATE BROWN,
Defendants.
_______________________________________
AIKEN, District Judge.
This case comes before the Court on Plaintiff’s renewed Motion for Preliminary
Injunction. ECF No. 40. The Court concludes that this motion is appropriate for
resolution without oral argument. Local Rule 7-1(d)(1). Given the substantial
similarity between the present motion and Plaintiff’s previous unsuccessful
injunction motions, the Court concludes that no further briefing is necessary. For the
reasons set forth below, the motion is DENIED.
BACKGROUND
Oregon, along with the rest of the United States, has been in the grip of the
COVID-19 pandemic since early 2020. Among the first measures adopted to combat
the spread of the virus was a requirement that people wear masks while shopping
indoors. On July 26, 2020, Plaintiff was refused entry to a farm store because he
was not wearing a mask. Am. Compl. ¶ 1. ECF No. 26. It is not clear whether the
individuals who denied Plaintiff entry were store employees, but Plaintiff was
subsequently charged with trespassing as a result of the incident. Id. at ¶¶ 1-2.
Plaintiff initially commenced this pro se action on August 7, 2020. ECF No.
1. On August 12, 2020, Plaintiff sought an emergency temporary restraining order
(“TRO”) enjoining the State of Oregon and Governor Kate Brown from issuing or
enforcing any emergency provisions related to the COVID-19 pandemic. ECF No. 8.
The Court denied the TRO motion by written order on the same day. ECF No. 9.
Over the course of the following week, Plaintiff filed a motion for
reconsideration, motions to recuse, and a motion for preliminary injunction seeking
to enjoin Oregon and Governor Brown from enforcing any provisions related to the
pandemic. ECF Nos. 11, 12, 13, 14. On August 20, 2020, Plaintiff filed a Notice of
Appeal concerning the denial of his TRO motion. ECF No. 15.
On February 3, 2021, the Court denied Plaintiff’s various motions, including
the motion for preliminary injunction. ECF No. 19.
On June 1, 2021, the Ninth Circuit affirmed the Court’s denial of Plaintiff’s
TRO motion. ECF No. 25-1. On August 23, 2021, the Ninth Circuit denied
Plaintiff’s request for a rehearing en banc. ECF No. 23. The Ninth Circuit’s
mandate issued on September 2, 2021. ECF No. 25.
Plaintiff filed an Amended Complaint on September 21, 2021. ECF No. 26.
Defendants filed their Answer on December 15, 2021. ECF No. 39. Plaintiff filed a
renewed Motion for Preliminary Injunction on January 4, 2022. ECF No. 40.
LEGAL STANDARD
A preliminary injunction is an “extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary
injunction must show (1) that he or she is likely to succeed on the merits; (2) he or
she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the
balance of the equities tips in his or her favor; and (4) an injunction is in the public
interest. Id. at 20.
In the Ninth Circuit, courts may apply an alternative “serious questions” test,
which allows for a preliminary injunction where a plaintiff shows that “serious
questions going to the merits” were raised and the balance of hardships tips sharply
in plaintiff’s favor, assuming the other two elements of the Winter test are met.
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). This
formulation applies a sliding scale approach where a stronger showing of one element
may offset a weaker showing in another element. Id. at 1131. Nevertheless, the
party requesting a preliminary injunction must carry its burden of persuasion by a
“clear showing” of the four elements set forth above. Lopez v. Brewer, 680 F.3d 1068,
1072 (9th Cir. 2012).
DISCUSSION
Plaintiff’s Amended Complaint is substantially similar to his original
Complaint. Once again, he challenges the emergency measures instituted by the
Oregon government to respond to the COVID-19 pandemic and asserts that the
statutes authorizing the emergency measure are unconstitutionally vague and that
the implementation of the measures has violated his rights. Plaintiff seeks an award
of $100,000 for himself and $21 billion in punitive damages to be divided among the
people of Oregon. In his renewed Motion for Preliminary Injunction, Plaintiff once
again seeks to enjoin Defendants from implementing or enforcing the emergency
measures instated to control the spread of COVID-19.
Applying the Winter factors, the Court concludes that Plaintiff has not
demonstrated either a likelihood of success on the merits of his claims or even
substantial questions going to the merits for much the same reasons as in the Court’s
denial of Plaintiff’s prior motions. Plaintiff’s claims are not clearly delineated in his
Amended Complaint or in his Motion. For example, in his motion Plaintiff discusses
the Equal Protection Clause, but does not appear to allege that he is being treated
differently from similarly situated individuals. Plaintiff likewise discusses First
Amendment rights in his motion, but no claim for violation of Plaintiff’s First
Amendment rights is apparent in the Amended Complaint. Plaintiff also appears to
bring claims under various federal criminal statutes, which do not provide any
private right of action.
Although Plaintiff contends that he will suffer irreparable harm in the
infringement of his rights, the only concrete incident he alleges is his exclusion from
the farm store in July 2020 for refusing to wear a mask while indoors. The Court
concludes that Plaintiff has not made a sufficient showing of imminent irreparable
harm.
Finally, the Court considers the balance of the equities and the public interest.
When the government is a party, these last two factors of the preliminary injunction
analysis will merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
2014). Here, Plaintiff’s requested relief is not aimed at preserving the existing status
quo but instead requests a sweeping mandatory injunction to undo the Oregon
government’s efforts to restrain the spread of a highly contagious and deadly virus.
The Court once again finds that the balance of the equities and the public interest tip
sharply against the requested injunction.
In sum, the Court concludes that Plaintiff has not met his burden on any of the
Winter factors and the Court denies Plaintiff’s requested injunction.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Preliminary Injunction,
ECF No. 40, is DENIED.
It is so ORDERED and DATED this 10th day of January 2022.
/s/Ann Aiken
ANN AIKEN
United States District Judge