The opinion
1
2
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 BERKELEY HOMELESS UNION, Case No. 25-cv-04449-HSG
8 Plaintiff, ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER
9 v.
Re: Dkt. No. 2
10 CITY OF BERKELEY, et al.,
11 Defendants.
12
13 Pending before the Court is an ex parte application for a temporary restraining order, filed
14 May 27, 2025. Dkt. No. 2. The motion seeks to delay Defendant City of Berkeley’s closure of
15 encampments at Ohlone Park, Berkeley, scheduled to begin by May 28, 2025. See Dkt. No. 2-5,
16 Ex. A, at 6. The Court DENIES the motion.
17 Plaintiff Berkeley Homeless Union (BHU) initially requested this same relief on May 21,
18 2025, in Berkeley Homeless Union v. City of Berkeley, an earlier filed case in this district related to
19 encampments along 8th and Harrison Streets in Berkeley. See Case No. 3:25-cv-01414-EMC,
20 Dkt. No. 21. Judge Chen found that Plaintiff’s claims regarding Ohlone Park fell outside the
21 scope of that case because they involve a different location, different facts, and potentially
22 different individuals than those related to the Harrison Street encampment. See id., Dkt. No. 69
23 at 2. Accordingly, Judge Chen ordered that Plaintiff must file a new civil action to pursue relief
24 related to Ohlone Park. See id.
25 Plaintiff’s counsel alleges that after Judge Chen’s order was issued, he contacted
26 Defendants’ lead counsel on May 23, 2025, to inform him that Plaintiff intended to seek a TRO
27 regarding Ohlone Park, and to request that the parties stipulate to a briefing schedule for the
1 encampments. See Dkt. No. 2-1 ¶¶ 3–7. Defense counsel purportedly declined Plaintiff’s
2 proposals, and in response, Plaintiff’s counsel confirmed that the motion would be filed.
3 See id. ¶ 8.
4 Under Federal Rule of Civil Procedure 65, a temporary restraining order may enjoin
5 conduct pending a hearing on a preliminary injunction. See Fed. R. Civ. P. 65(b). The standard
6 for issuing a temporary restraining order and issuing a preliminary injunction are substantially
7 identical. See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839, n.7 (9th
8 Cir. 2001). Such an order may be issued only where the plaintiff has established: (1) a likelihood
9 of success on the merits; (2) a likelihood of irreparable harm to plaintiff in the absence of
10 preliminary relief; (3) the balance of equities tips in plaintiff’s favor; and (4) that an injunction is
11 in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Under
12 the Ninth Circuit’s sliding scale approach, a plaintiff may alternatively establish that there are
13 “serious questions going to the merits” if “a hardship balance [also] tips sharply towards the
14 plaintiff,” and the other two Winter factors are satisfied. See All. for the Wild Rockies v. Cottrell,
15 632 F.3d 1127, 1134–35 (9th Cir. 2011).
16 The Court may issue a temporary restraining order without written or oral notice only if
17 (A) specific facts in an affidavit or a verified complaint clearly show that immediate and
18 irreparable injury, loss, or damage will result to the movant before the adverse party can be heard
19 in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice
20 and the reasons it should not be required. Fed. R. Civ. P. 65(b)(1).
21 Here, Plaintiff’s request fails because it has not shown serious questions going to the
22 merits of any of its claims. First, regarding Plaintiff’s Americans with Disabilities Act (“ADA”)
23 claim, Plaintiff largely relies on broad allegations that do not pertain the individuals living in
24 Ohlone Park. Such allegations cannot sustain a finding of likelihood on the merits in this case.
25 The complaint generally alleges that Defendant “discriminates against unhoused individuals by
26 failing to provide adequate notice, time, and assistance to unhoused people with disabilities who
27 are forced to move themselves or their belongings from public space.” Compl. ¶ 98. Plaintiff
1 accommodation requests, “created unreasonable barriers, in a way that did not address or find a
2 fact intensive finding as to any ADA request.” Id. ¶ 103. Yet Plaintiff’s facts alleged as to the
3 residents of Ohlone Park are extremely limited. According to her declaration, Yesenia Prado,
4 BHU representative, submitted 7 requests for disability accommodations to Defendant on May 24,
5 2025. See Dkt. 2-9 (“Prado Decl.”) ¶ 11. The requests were admittedly filed late, after the May
6 21, 2025, deadline for accommodation requests had passed. See id.; Dkt. No. 2-5, Ex. A, at 7.
7 Ms. Prado does not state that this deadline was itself unreasonable, but contends that she filed the
8 requests late because she “only noticed that part of the notice on May 22.” See Prado Decl. ¶ 11.
9 Plaintiff alleges that in response, Thomas Gregory “without going into an in depth fact finding,
10 denied the requests.” Compl. ¶ 89.
11 But aside from this broad allegation, Plaintiff submits specific facts as to only one of Mr.
12 Gregory’s responses to the accommodation requests. See Prado Decl., Ex. A. The email exchange
13 Plaintiff attached to the TRO and complaint shows that Mr. Gregory responded on May 25, 2025
14 (the Sunday before Memorial Day) to Ms. Prado’s May 24, 2025, request on behalf of Richard
15 Weaber. See id. at 3. Defendant stated that he had a prior conversation with Mr. Weaber on May
16 15, 2025, in which he did not make an accommodation request, and rejected an offer of packing
17 assistance. Id. Mr. Gregory did not accede to Ms. Prado’s request to waive the City’s requirement
18 to provide third-party verification from a qualified professional regarding the nexus between Mr.
19 Weaber’s disabilities and his inability to comply with the City’s order to vacate the encampment.
20 Id. Mr. Gregory also stated that the requests for physical relocation or transportation services fell
21 outside the scope of reasonable accommodations. Id. He concluded his response by saying, “That
22 being said, if you have additional information or alternative proposals you would like us to
23 consider, I welcome further discussion.” Id. at 4. Plaintiff responded on the evening of May 26,
24 2025, again requesting that Defendant waive the medical verification requirement and requesting
25 that Defendant provide assistance identifying ADA accessible shelter options. Id. at 5. Plaintiff
26 alleges that Defendant did not respond as of the filing of the complaint approximately twelve
27 hours later.
1 specific allegations describing, the accommodation requests that were submitted and Defendant’s
2 responses. And based on this request, Plaintiff has not met its burden to show that Defendant’s
3 response raises serious questions going to the merits of its ADA claim. “The ADA requires ‘only
4 ‘reasonable modifications’ that would not fundamentally alter the nature of the service provided.’”
5 Where Do We Go Berkeley v. California Dep’t of Transportation, 32 F.4th 852, 862 (9th Cir.
6 2022) (citing Tennessee v. Lane, 541 U.S. 509, 532 (2004)). “In no event is the entity required to
7 undertake measures that would impose an undue financial or administrative burden or effect a
8 fundamental alteration in the nature of the service. . . . Public entities are not required to create
9 new programs that provide heretofore unprovided services to assist disabled persons.” See Where
10 Do We Go Berkeley, 32 F.4th at 862 (internal citations and quotation marks omitted). Plaintiff
11 does not explain how, within this framework, the ADA requires Defendant to agree to the specific
12 requests that it denied. For example, Plaintiff does not explain how the ADA requires Defendant
13 to provide assistance to unhoused individuals to identify shelter options. Similarly, Plaintiff does
14 not explain how or why Defendant’s request for medical verification violates the ADA. Plaintiff
15 also does not explain how Defendant’s response to Plaintiff’s late-filed requests failed to provide
16 adequate notice of the closure to Plaintiff’s members in violation of the ADA. Without any
17 allegations or arguments addressing these facts, Plaintiff’s conclusory assertions cannot meet its
18 burden to raise serious questions going to the merits of its claims.
19 Second, Plaintiff’s Fourth Amendment claim is similarly conclusory and fails to connect
20 the specific allegations relevant to this case with any legal authority showing that it is likely to
21 succeed on the merits here. Plaintiff alleges generally that the City of Berkeley refuses to store the
22 property of unhoused people after encampment sweeps, citing incidents in which this allegedly
23 occurred in January 2024 and November 2024. See Compl. ¶¶ 106–113. Plaintiff argues that the
24 Ninth Circuit held that unhoused people “have a legitimate expectation of privacy in their
25 property,” but cites a non-binding district court case, Lavan v. City of Los Angeles, 797 F. Supp.
26 2d 1005 (C.D. Cal. 2011). See id. ¶ 108. Plaintiff’s failure to cite any controlling legal authority
27 and explain how such authority supports its claim precludes any entitlement to extraordinary
1 Finally, the Court finds that Plaintiff has not raised serious questions going to the merits of
2 its state-created danger claim under 42 U.S.C. § 1983. “To succeed on a state-created danger
3 claim, a plaintiff must establish that (1) a state actor’s affirmative actions created or exposed him
4 to an actual, particularized danger [that he] would not otherwise have faced, (2) that the injury he
5 suffered was foreseeable, and (3) that the state actor was deliberately indifferent to the known
6 danger.” Sinclair v. City of Seattle, 61 F.4th 674, 680 (9th Cir. 2023) (quotations omitted). Here,
7 Plaintiff offers little more than conclusory assertions and a recitation of these elements. Plaintiff
8 takes issue with Berkeley’s broad efforts to clear encampments across the city, and urges that
9 unhoused people are being “pushed into more and more dangerous living situations.” See Dkt.
10 No. 2 ¶ 67. Plaintiff further notes that Ohlone Park has public restrooms and water fountains and
11 is close to other resources. See id. ¶¶ 68–76. But critically, Plaintiff has not explained why
12 requiring individuals to leave Ohlone Park—even if further from such resources—rises to the level
13 of a state-created danger. See Sacramento Homeless Union v. City of Sacramento, 115 F.4th
14 1149, 1154–55 (9th Cir. 2024) (Nelson, J., dissenting from denial of rehearing en banc).
15 Because Plaintiff has not at least raised serious questions going to the merits of its
16 complaint, it is not entitled to the extraordinary relief sought here (especially where Plaintiff gave
17 the Court well less than 24 hours to consider the request, which also realistically foreclosed
18 Defendant’s opportunity to be heard before the motion was decided). In addition, the Court notes
19 that an underlying and consistent premise of Plaintiff’s application is that Defendant could, and
20 thus must, simply allow its members and others to continue to live in Ohlone Park indefinitely
21 under certain conditions. See, e.g., Dkt. No. 1 at ¶ 132 (“For example, the City of Berkeley could
22 allow BHU members to move to a particular part of the park that is reasonably close to the
23 bathrooms and water fountains to accommodate their disabilities.”). In the Court’s preliminary
24 view, this position simply lacks any support in the law.
25 Accordingly, Plaintiff’s motion for a temporary restraining order, Dkt. No. 2, is DENIED.
26 Defendants are further ORDERED to file a response to Plaintiff’s motion by noon on Thursday,
27 May 29, 2025. A hearing on Plaintiff’s request for preliminary injunction is set for Thursday,
] shall attend in-person unless otherwise ordered.
2 The Clerk is directed to serve this Order on Plaintiff by email at
3 berkeley.homeless.union@gmail.com. The Clerk is further directed to serve this Order; the
4 || complaint (Dkt. No. 1), and the ex parte application for temporary restraining order and
5 || preliminary injunction (Dkt. No. 2) on Defendants at mshapp@berkeleyca.gov,
6 pbuddenhagen@berkeleyca.gov, tgregory@berkeleyca.gov, and pradu@berkeleyca.gov.
7 IT IS SO ORDERED.
8 || Dated: May 27, 2025
Aspe 5 bbl}
HAYWOOD S. GILLIAM, JR.
10 United States District Judge
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