Aguilar v. King

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

MYNTORA AGUILAR, MICHELLE Civ. No. 6:23-cv-01064-AA

HESTER, & NICHOLAS SCHINDLER,

Homeless Individuals On Hunnell & OPINION & ORDER

Clausen Roads City of Bend, OR

on Behalf of Themselves & Other Homeless

Individuals on Hunnell & Clausen Roads;

ERIC GARRITY; Bend Equity Project;

Plaintiffs,

v.

ERIC KING, City Manager, City of Bend;

MELANIE KEBLER, Mayor, City of Bend;

MEGAN PERKINS, Mayor Pro Tem,

ANTHONY BROADMAN,

BARB CAMPBELL, ARIEL MENDEZ,

MEGAN NORRIS, and

MIKE RILEY, City Councilors, City of Bend;

Defendants.

_______________________________________

AIKEN, District Judge.

This case comes before the Court on Plaintiffs’ Complaint and application for

Temporary Restraining Order, ECF No. 1, filed by pro se Plaintiffs Myntora Aguilar;

Michelle Hester; Nicholas Schindler; Homeless Individuals on Hunnell & Clausen

Roads on Behalf of Themselves & Other Homeless Individuals; Eric Garrity; and

Bend Equity Project. Plaintiffs name as Defendants the City Manager and all seven

members of the City Council, but not the City of Bend (“City of Bend” or “the city”).

BACKGROUND

Plaintiffs allege that Aguilar, Hester, and Schindler are three disabled

homeless individuals “who are being displaced, along with 19 other disabled persons,”

camping in an area of the City of Bend at Hunnell & Clausen Roads. Compl. at 2.

Plaintiff Garrity is a service provider with Bend Equity Group, a community

organization that has been assisting the homeless on Hunnell & Clausen with meals

and other services.

Plaintiffs allege that on June 20, 2023, an agent of the city provided 28 days’

notice that their encampments at Hunnell & Clausen would be closed, and that the

agent posted a written notice on every tent or trailer at the camp. Id. On July 12,

2023, Plaintiffs filed suit in Deschutes County Circuit Court seeking an emergency

hearing and temporary injunction, and on July 13, 2023, Plaintiffs requested

reasonable accommodation under the city’s camping code and Title II of the

Americans with Disabilities Act (“the ADA”). See Aguilar v. King, Case No. 23-cv-

27630.

In the Deschutes County action, Plaintiffs’ alleged grounds for a TRO was their

fear that the city would ignore the interactive process of review required by the ADA

and proceed to clean up the street without providing reasonable accommodations.

However, the city reviewed the application for reasonable accommodation, and

provided an additional seven days before the encampment would be cleaned out.

The court issued its ruling from the bench, instructing Defendants to prepare

an order and judgment accordingly. In its ruling, the court found that the city had a

duty to manage its streets, and that the city had authority to implement regulations

governing the time, place and manner that individuals may camp or otherwise reside

on city streets. See Winters Decl., Ex. 4 (proposed order pursuant to court ruling);

see also Compl. ¶ 14-16 (Plaintiffs summarizing court ruling).

The court also found that the city’s Camping Code and its implementing policy

applied to Hunnell & Clausen and determined that the city had given proper notice

under its code and policies that it had followed its code and policies. As to Plaintiffs’

ADA claim, the court determined that the city had met its obligations to engage as

required in an interactive process of review for reasonable accommodation requests,

and by giving the Plaintiffs Aguilar, Hester, and Schindler, and all other individuals

who had requested accommodations under the ADA, an extra seven days—until July

25, 2023—to remain at the site before they would be required to leave. Winters Decl.,

Ex. 4 Defendants assert, and Plaintiffs do not dispute, that Plaintiffs have not taken

any steps to challenge the Deschutes County Circuit Court order. See Defs.’ Resp. at

4.

Now, Plaintiffs ask the Court to immediately issue a TRO enjoining

Defendants from clearing the camp—nearly identical relief as they did in state court.

Plaintiffs assert a claim under the Fourteenth Amendment, maintaining that the city

will clear the camp “pursuant to the Deschutes County court’s [order],” and violate

their Due Process right to appeal the appropriateness of the 7-day accommodation.

Plaintiffs also claim that Defendants will violate Plaintiffs’ rights under the Fourth

Amendment, based on the seizure and destruction of property left at the site, and

under the Eighth Amendment because Plaintiffs will be arrested if they refuse to

leave the site.

LEGAL STANDARD

“In deciding whether to grant a motion for a temporary restraining order

(‘TRO’), courts look to substantially the same factors that apply to a court’s decision

on whether to issue a preliminary injunction. Pacific Kidney & Hypertension LLC v.

Kassakian, 156 F. Supp.3d 1219, 1222 (D. Or. 2016). 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 on 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

Before turning to the legal analysis of Plaintiffs’ claims according to the

standard set forth above, the Court finds that some parties are not properly before

the Court. Plaintiffs are all self-represented. Bend Equity Project is not an

individual, but a non-profit organization. “It is a longstanding rule that corporations

and other unincorporated associations must appear in court through an attorney.” D-

Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972, 973-74 (9th Cir. 2004)

(internal quotation marks and citation omitted). This is reflected in the Local Rules

of this District. See LR 83-9(b) (“Unless otherwise specifically provided by law or

Court order, a corporation may appear or act only through an attorney.”).

Accordingly, Bend Equity Project is not a party properly before the Court.

Next, Plaintiffs, being pro se, can only represent themselves, not others. The

Ninth Circuit has routinely adhered to the general rule prohibiting pro se plaintiffs

from pursuing claims on behalf of others in a representative capacity. Simon v.

Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). As such, “Other Homeless

Individuals” are not properly before the Court. Plaintiff Garrity is also not properly

before the Court, as Plaintiffs allege that Garrity is appearing as a representative of

Bend Equity Project. To the extent that Plaintiff Garrity is appearing pro se on behalf

of himself, the Court finds that he does not have standing to bring any claim alleged

in this case. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (setting forth

requirements for standing).

I. Success on the Merits

In their Complaint, ECF No. 1, Plaintiffs ask the Court to issue the same

extraordinary relief the state court already considered and denied: to enjoin

Defendants from enforcing the temporary closure and clearing of Hunnell & Clausen.

Cf. Winters Decl., ¶ 2, Prayer for Relief with Compl. at 12-13, Prayer for Relief.

Defendants contend that Plaintiffs’ federal lawsuit amounts to a de facto

appeal of unfavorable rulings by the Deschutes County Circuit Court and that it

therefore runs afoul of the Rooker-Feldman doctrine.1

Pursuant to the Rooker-Feldman doctrine, federal courts lack jurisdiction to

hear cases that amount to collateral attacks on state court judgments. The basic

premise of the doctrine is that “a federal district court does not have subject matter

jurisdiction to hear a direct appeal from the final judgment of a state court.” Noel v.

Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). Instead, the United States Supreme Court

is the only federal court with jurisdiction to hear appeals from state courts. Id.

The scope of the Rooker-Feldman doctrine includes de facto appeals from a

state court decision and “any issues raised in the suit that is ‘inextricably intertwined’

with an issue resolved by the state court in its judicial decision.” Noel, 341 F.3d at

1158. A claim is inextricably intertwined with a state court judgment if the federal

claim can succeed only to the extent that the state court wrongly decided the issues

1 The Rooker-Feldman doctrine takes its name from Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923)

and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

before it, or if the relief requested in the federal action would effectively reverse the

state court decision or void its ruling. Doe & Assocs. Law Offices v. Napolitano, 252

F.3d 1026, 1029-30 (9th Cir. 2001) (citation omitted).

“Rooker-Feldman bars a suit from going forward if: (1) the plaintiff in the

federal suit lost in the state court proceeding; (2) the state court determination is at

the core of the federal lawsuit; (3) the federal lawsuit seeks review and rejection of

the state court verdict; and (4) the state court judgment was entered before

commencement of the federal action.” Bunnell v. Brown, Case No. 3:17-cv-1786-SI,

2018 WL 3040893, at *3 (D. Or. June 19, 2019) (citing McKithen v. Brown, 481 F.3d

89, 97 (2nd Cir. 2007)). A dismissal under this doctrine is generally without

prejudice, although one form which the plaintiff will not be able to replead in this

Court. See White v. Dobrescu, 651 Fed. App’x 701, 703 (9th Cir. 2016) (“Because we

affirm the dismissal on the basis of the Rooker-Feldman doctrine, we treat the

dismissal as one without prejudice.”); see also Kelly v. Fleetwood Enters., Inc., 377

F.3d 1034, 1036 (9th Cir. 2004) (dismissal for lack of subject matter jurisdiction

should be without prejudice).

First, Plaintiffs assert the same claims and seek the same relief that was

already denied a week ago in Deschutes County Circuit Court—a decision

unfavorable to Plaintiffs.

Second, the state court’s determination is at the core of this lawsuit. The crux

of the Complaint is that Defendants are allegedly violating Plaintiffs’ rights

“pursuant to the Deschutes County court’s [order].” Winters Decl. ¶ 2, Compl. ¶ 18;

see also id. ¶¶ 5, 9, 11–16 (alleging in detail the process and decision in the state

court, including the rationale for the state court’s conclusion that the city “had a right,

even an obligation, to regulate its own streets.”).

Third, Plaintiffs’ suit effectively asks the Court to remedy what they allege was

error on the part of the state court and enjoin Defendants from enforcing the

temporary closure and clearing of Hunnell & Clausen. Cf. Winters Decl., ¶ 2, Prayer

for Relief with Compl. at 12-13, Prayer for Relief. For example, Plaintiffs assert that

they argued to the state court that seven days was an insufficient accommodation

under the ADA. Compl. ¶ 13. Plaintiffs contend that the state court denied the TRO,

finding that the city had engaged in the proper review process and that the seven-

day extension was sufficient. Compl. ¶¶ 14-16. Plaintiffs, now dissatisfied with the

state court’s ruling, ask this court to rule differently and grant the request for a TRO.

Doing so is inextricably linked with the state court proceedings and a de facto review.

Fourth, the Deschutes County Circuit Court’s ruling was final before Plaintiffs

filed this federal action. The Court notes that a final judgment has not formally been

entered due to the procedural requirements the state court follows. See Oregon

Uniform Trial Court Rule 5.100(1)(c) (requiring the city to wait seven days before

submitting the proposed order and judgment to Deschutes County Circuit Court for

signature). Here, Plaintiffs assert, and Defendants agree that the state court’s order

from the bench was a final decision denying its request for a TRO.

Accordingly, the relief requested in the federal action would, in effect, reverse

the state court decision or void its ruling. Doe & Assocs. Law Offices, 252 F.3d at

1029-30. The Rooker-Feldman doctrine bars such a suit from going forward.

Because the Court is barred from considering the merits of Plaintiffs’ claims,

there can be no “likely success on the merits,” a requirement necessary to succeed on

a motion for TRO. Winter, 555 U.S. at 20. Even if the Rooker-Feldman doctrine did

not bar the suit, the Court has reviewed the filings, exhibits, declarations, and legal

authority and concludes that Plaintiffs could not meet their burden to demonstrate a

likelihood of success on the merits of their claims.

II. Irreparable Harm

Plaintiffs allege that they will suffer irreparable harm if the city continues its

clean up as planned on July 25, 2023. However, Defendants have provided evidence

that the city’s Camping Code does not ban camping in the city. The record shows that

the Camping Code allows people to use many of the city’s public rights-of-way to camp

for up to 24 hours in one location. The code allows people to use vehicles for shelter

for up to three business days in one location almost everywhere in the city, essentially

treating vehicles used for shelter the same as any other vehicles that are parked by

allowing them to be in one location for the same period of time.

Contrary to Plaintiffs’ allegation that they will be arrested for failing to leave

the encampment, the city’s Camping Code does not contain any criminal penalties,

does not subject violators to the possibility of jail time, and applies to everyone

equally, regardless of whether they do or do not have access to shelter. Plaintiffs are

thus entitled to camp elsewhere in the city without fear of penalty, and Defendants

maintain that Plaintiffs could even return to Hunnell & Clausen following the

closure. Accordingly, Plaintiffs will not suffer irreparable harm if the temporary

restraining order is denied. See Martin v. Boise, 920 F.3d 584 (9th Cir. 2019).

III. Balance of Hardships and Public Interest

Defendants maintain that Hunnell & Clausen Roads have had restricted

access by members for the public for over three years. Plaintiffs’ allegations are in

accord. Defendant contends that the city undertook almost six months of public

process in 2022 to enact a reasonable Camping Code, delayed application of the code

for over three months, and provided individuals residing on Hunnell & Clausen an

additional four months following the code’s effective date to remove themselves from

the area. The hardship on the city and its residents is not outweighed by the

requirement that Plaintiffs camp in another location while the street is closed to be

cleaned. It is in the public interest to regulate public streets in a way that could allow

all to use the roads, including Plaintiffs according to the Camping Code, and the

public for passage. Accordingly, Plaintiffs have not satisfied the factors, identified in

Winter, necessary to succeed on a motion for TRO.

CONCLUSION

The Court has reviewed the filings in this case, including the exhibits and

declarations, and concludes that Plaintiffs have not carried their burden and have

failed to make the showing necessary to support the extraordinary and drastic

remedy of a TRO. The Court also finds that it does not have subject matter

jurisdiction over the action, as it is barred under the Rooker-Feldman doctrine.

Accordingly, Plaintiffs’ Complaint, ECF No. 1, is DISMISSED without prejudice and

Plaintiffs’ request for a Temporary Restraining Order is DENIED.

It is so ORDERED and DATED this 26th day of July 2023.

/s/Ann Aiken

ANN AIKEN

UNITED STATES DISTRICT JUDGE