indicating that the interactive process under the 5 ADA requires, inter alia, “offering an accommodation that is reasonable and effective”
How later courts described this case
- indicating that the interactive process under the 5 ADA requires, inter alia, “offering an accommodation that is reasonable and effective”
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 BERKELEY HOMELESS UNION, et al., Case No. 25-cv-01414-HSG
8 Plaintiffs, ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER
9 v.
Re: Dkt. No. 6
10 CITY OF BERKELEY, et al.,
11 Defendants.
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13 Pending before the Court is a motion for a temporary restraining order. Dkt. No. 6. The
14 Court directed service on Defendants, Dkt. No. 10, and the City of Berkeley has since filed its
15 opposition to the motion, Dkt. No. 11. Having considered the parties’ filings, the Court GRANTS
16 the motion for a temporary restraining order until a hearing can be held on February 20, 2025, at
17 2:00 p.m.
18 Under Federal Rule of Civil Procedure 65, a temporary restraining order may enjoin
19 conduct pending a hearing on a preliminary injunction. See Fed. R. Civ. P. 65(b). The standard
20 for issuing a temporary restraining order and issuing a preliminary injunction are substantially
21 identical. See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839, n.7 (9th
22 Cir. 2001). Such an order may be issued only where the plaintiff has established: (1) a likelihood
23 of success on the merits; (2) a likelihood of irreparable harm to plaintiff in the absence of
24 preliminary relief; (3) the balance of equities tips in plaintiff’s favor; and (4) that an injunction is
25 in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Under
26 the Ninth Circuit’s sliding scale approach, a plaintiff may alternatively establish that there are
27 “serious questions going to the merits” if “a hardship balance [also] tips sharply towards the
1 632 F.3d 1127, 1134–35 (9th Cir. 2011).
2 The Court finds that Plaintiffs have shown that there are serious questions going to the
3 merits of at least one of their claims.1 Specifically, the parties dispute what the Americans with
4 Disabilities Act (“ADA”) requires before the City may evict disabled and unhoused individuals
5 when clearing an encampment, and whether the City has complied with these requirements.
6 Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such
7 disability, be excluded from participation in or be denied the benefits of the services, programs, or
8 activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
9 § 12132. The Ninth Circuit has held, and the City appears to acknowledge, that “compliance with
10 municipal code enforcement can constitute a benefit of the services, programs, or activities of a
11 public entity under Title II.” See Dkt. No. 12 at 14 (citing McGary v. City of Portland, 386 F.3d
12 1259, 1269 (9th Cir. 2004)). Title II’s implementing regulations, in turn, require state agencies to
13 “make reasonable modifications in policies, practices, or procedures when the modifications are
14 necessary to avoid discrimination on the basis of disability, unless the public entity can
15 demonstrate that making the modifications would fundamentally alter the nature of the service,
16 program, or activity.” 28 C.F.R. § 35.130(b)(7)(i).
17 Here, Plaintiffs state that the City failed to engage in a good-faith interactive process to
18 explore reasonable accommodations for their disabilities, and ultimately failed to provide them
19 with any accommodation at all. All three named Plaintiffs appear to have requested, at least in the
20 first instance, an opportunity to stay at 8th and Harrison Streets rather than relocate. See Dkt. No.
21 1 (“Compl.”) at pp. 4 (¶¶ 19, 22), p. 8 (¶ 8).2 Mr. Bouchard has “severe mobility impairments”
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1 The Court notes that although listed as a plaintiff in this case, the Berkeley Homeless Union
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(“BHU”) is not currently represented by counsel. Two individuals, Gordon Gilmore and Yesica
Prado, suggest that they are representatives of BHU, and each filed declarations in support of the
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motion for temporary restraining order. See, e.g., Dkt. No. 6-1; Dkt. No. 6-5. However, because
neither Mr. Gilmore nor Ms. Prado appear to be attorneys, they are not permitted to represent
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anyone but themselves. See In re Am. W. Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (per
curiam) (“Corporations and other unincorporated associations must appear in court through an
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attorney.”); Civil L.R. 3-9(b) (“A corporation, unincorporated association, partnership or other
such entity may appear only through a member of the bar of this Court.”). And because neither
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Mr. Gilmore nor Ms. Prado are listed as named Plaintiffs in this case, the Court only considers the
1 and “cannot relocate independently.” See id. at p. 4 (¶ 19). Mr. Johnson “is a neurodivergent
2 individual diagnosed with autism and ADHD.” See id. at p. 4 (¶ 22). And Mr. Moore has
3 “chronic back pain from a prior tailbone injury, limit[ing] his mobility and making frequent
4 relocation impossible.” See id. at p. 5 (¶ 25). According to Plaintiffs, the City’s ADA
5 Coordinator, Thomas Gregory, denied their requests as unreasonable without proposing any
6 alternatives, simply informing Plaintiffs to “‘remove themselves’ from the area.” See id. at p. 8
7 (¶ 8), p. 10 (¶ 11).
8 The City urges that it has attempted to work with Plaintiffs, but blames “Plaintiffs’ delayed
9 responses, late requests, and repeated insistence on asserting their purported right to stay in place
10 despite an order to leave the area . . . .” See Dkt. No. 12 at 15. Although the Court has already
11 acknowledged concerns about the timing of this case, it also cannot rule out that at least some of
12 the perceived delay may be precisely because Plaintiffs are unhoused and disabled. Additionally,
13 although the initial site visit may have occurred in December 2024, Plaintiffs appealed the City’s
14 decision to close the encampment. The administrative hearing officer did not issue its ruling
15 affirming the City’s ability to clear the encampment until January 29, 2025. See Dkt. No. 13 at
16 ¶ 6; see also Dkt. No. 13-3, Ex. C at 23–26. A notice explaining this decision and requiring
17 Plaintiffs to leave the area was not posted until January 31, 2025—just ten days before the City’s
18 February 10 “Compliance Deadline” to leave the area. See Dkt. No. 13-3, Ex. C; see also Dkt.
19 No. 15 at ¶ 8; Dkt. No. 13 at ¶¶ 7–8. The notice itself directed people to request ADA
20 accommodations by February 3. See Dkt. No. 13-3, Ex. C at 18–19. Put in this context, it is not
21 clear that Plaintiffs unduly delayed in requesting any ADA accommodation.3
22 Moreover, despite the City’s suggestion that it has attempted to work with Plaintiffs, that is
23 not indisputable from the current record. The City’s own exhibits suggest that Mr. Gregory
24 offered no alternatives after denying Plaintiffs’ initial requests to remain in place; said he was not
25 a lawyer and had “no good ideas” in response to Plaintiffs’ needs; and suggested that Plaintiffs
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pagination and the relevant paragraph numbers throughout this order for ease of reference.
1 were harassing him with their requests. See Dkt. No. 14, Ex. A; see also id, Exs. B–C. At this
2 stage the Court need not decide whether the City’s conduct in fact violated the ADA, but Plaintiffs
3 have raised serious questions going to this fact-specific inquiry. Cf. Zivkovic v. S. California
4 Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (indicating that the interactive process under the
5 ADA requires, inter alia, “offering an accommodation that is reasonable and effective”).
6 The balance of hardships also tips sharply in Plaintiffs’ favor. The City has confirmed that
7 it intends to clear the encampment without further notice and on a date of its own choosing. See
8 Dkt. No. 12 at 9. Plaintiffs have clearly shown that immediate and irreparable injury—specifically
9 the removal of Plaintiffs and their belongings from the place they are now living—will occur
10 before a hearing can be held on a motion for preliminary injunction. The harm to Plaintiffs is
11 further compounded by the storm and heavy rain that have hit the Bay Area. The Court does not
12 minimize the burden a temporary restraining order would place on the City. As the City has
13 detailed, it has devoted significant resources to the planned clearing of the encampment and would
14 face challenges in having to reschedule. See Dkt. No. 15 at ¶¶ 9–10. Nevertheless, the Court is
15 not persuaded that the City’s resource allocation concerns outweigh the hardship and irreparable
16 injury Plaintiffs would otherwise face without a modest delay in the City’s plans to clear the
17 encampment to allow the Court to address the merits on a more informed basis. Plaintiffs have
18 also offered evidence that they have engaged in considerable efforts to clean up at least some of
19 the conditions that the City identified as posing health and safety risks. See, e.g., Dkt. No. 11 at
20 ¶¶ 6–13; see also Dkt. No. 13-3, Ex. C at 26 (administrative hearing officer commending
21 “substantial cleanup efforts” and removal of “3,000 pounds of waste from the encampment”).
22 Given the imminent nature of the challenged action and resulting irreparable harm shown,
23 the Court finds that the requirements of Rule 65(b) are met and the Winter factors weigh in favor
24 of a temporary restraining order.
25 I. CONCLUSION
26 Accordingly, the Court GRANTS Plaintiffs’ motion for a temporary restraining order,
27 solely to maintain the status quo until the earliest possible hearing on the merits of the temporary
1 Defendants are enjoined from proceeding with the clearing and eviction of those currently residing
2 || in and along 8th and Harrison Streets (the “Harrison Corridor”) in Berkeley, California, until a
3 || hearing can be held on the merits of Plaintiffs’ request.
4 A hearing on whether the temporary restraining order should be further extended is set for
5 Thursday, February 20, 2025, at 2:00 p.m. in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland,
6 || CA. All parties shall attend in-person. The Clerk is DIRECTED to serve this Order on the
7 || Plaintiffs by email at berkeley.homeless.union @ gmail.com.
8 IT IS SO ORDERED.
9 || Dated: 2/14/2025
10 Atatpursnd g Ube | |
HAYWODD S. GILLIAM, JR.
I United States District Judge
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