“It is clear from the language of Title II and the integration 14 regulation that public entities are not required to create new programs that provide 15 heretofore unprovided services to assist disabled persons.”
How later courts described this case
- “It is clear from the language of Title II and the integration 14 regulation that public entities are not required to create new programs that provide 15 heretofore unprovided services to assist disabled persons.”
- “[E]conomic injury alone does not support a finding of irreparable harm, 24 because such injury can be remedied by a damage award.” (internal citation omitted)
- noting that a 28 “particular statutory provision . . . may be so manifestly precatory that it could not fairly 1 be read to impose a binding obligation on a governmental unit.” (quoting Pennhurst 2 State Sch. and Hosp. v. Halderman, 451 U.S. 1, 27 (1981)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 KURT HIPP, et al., No. 2:25-cv-01806-DJC-SCR
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Plaintiffs,
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v. ORDER
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THE CITY OF VALLEJO,
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Defendant.
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18 The City of Vallejo has been engaged in efforts to remove encampments of
19 unhoused individuals near the Vallejo City Hall. The Court previously issued a
20 Temporary Restraining Order enjoining the City from removing the four Plaintiffs from
21 their temporary residences in this area on the basis that the City had not provided
22 reasonable accommodations for Plaintiffs’ disabilities or communicated with Plaintiffs
23 about possible accommodations for their disabilities. Plaintiffs seek a preliminary
24 injunction that would continue to enjoin the City from removing them from their
25 present location.
26 As the Supreme Court has recognized, many believe that “homelessness may
27 be the defining public health and safety crisis in the western United States today.” City
28 of Grants Pass, Or. v. Johnson, 603 U.S. 520, 528 (2024) (cleaned up). The Court
1 further observed that California is home to half of the nation’s unhoused population,
2 id., and the City of Vallejo seems to be no exception to this crisis. Plaintiffs,
3 understandably, have attempted to create some sort of shelter while searching (in
4 vain) for housing. While the Supreme Court has concluded that jurisdictions such as
5 the City of Vallejo may, consistent with the Eighth Amendment to the United States
6 Constitution, enforce anti-camping ordinances such as the ones at issue in this case, it
7 is incumbent on those entities to fully comply with all other constitutional, statutory,
8 and regulatory obligations. It was the City’s apparent failure to comply with its
9 obligations under the Americans with Disabilities Act (“ADA”) that led the Court to
10 issue a Temporary Restraining Order. However, that was only a provisional remedy to
11 prevent Plaintiffs’ removal until the Court could hear further argument as to whether a
12 preliminary injunction was warranted. In the period since the Temporary Restraining
13 Order was issued, it appears that the City has met its obligations to provide
14 reasonable accommodations to Plaintiffs.
15 The Court is sympathetic to the plight presented by Plaintiffs, who appear to be
16 sincere in their desire to find housing, and whose disabilities make their lack of
17 housing all the more intolerable. But the power of this Court is limited. The primary
18 law Plaintiffs employ to challenge the City’s actions – the Americans with Disabilities
19 Act – simply does not contemplate the creation of new housing or the indefinite
20 nullification of the City’s anti-camping ordinance. Finding that the Plaintiffs are
21 unlikely to succeed under that law and the constitutional challenges presented in the
22 Complaint, the Court has no choice but to deny Plaintiff’s Request for a Preliminary
23 Injunction (ECF No. 5).
24 BACKGROUND
25 Plaintiffs are four unhoused individuals currently residing in temporary housing
26 locations near the Vallejo City Hall. Plaintiffs face disabilities that multiply the
27 challenges of their unstable housing situations. Plaintiff Kurt Hipp must manage his
28 HIV-positive status, a seizure disorder, and a learning disability. Plaintiff Corletta Tate
1 has two children, including Plaintiff M.T., who is autistic, susceptible to overstimulating
2 environments, and only able to walk on the balls of his feet. Plaintiff Deshawnda
3 Watson has been diagnosed with PTSD and anxiety resulting from mental and
4 physical abuse she previously suffered. Plaintiffs filed suit seeking to prevent the City
5 of Vallejo from enacting plans to remove them from their current housing locations.
6 The Court issued a Temporary Restraining Order as it appeared the City had failed to
7 communicate with Plaintiffs or offer them reasonable accommodations for their
8 disabilities.
9 In the time since that order, the City conducted its encampment removal efforts
10 in the area near the Vallejo City Hall. Due to the Court’s prior order, Plaintiffs were
11 permitted to remain in their locations and were not removed. (Opp’n (ECF No. 13) at
12 5.) The City submitted an Opposition to Plaintiffs’ Motion for Preliminary Injunction on
13 July 7, 2025. (See id.) Therein, the City stated that as accommodations the City would
14 permit Plaintiffs to remain in their current locations until July 25, 2025, the City would
15 provide at least 90 days of storage (with the possibility for additional storage time),
16 and the City could also give Plaintiffs transport to housing, through their IHART
17 program, should they successfully secure housing. (Id. at 5, 10) In their Reply,
18 Plaintiffs reiterated a desire to remain in their present location until they obtain
19 permanent housing. (See Reply (ECF No. 22).) At oral argument, Counsel for the City
20 again stated their willingness to provide the above accommodations. When directly
21 asked by the Court if there were other accommodations Plaintiffs needed, the only
22 accommodations Plaintiffs identified were to remain where they were or to receive
23 hotel vouchers. At the conclusion of the hearing, the Court ordered the Temporary
24 Restraining Order extended through July 25, 2025, at which time it would expire. On
25 July 24, 2025, the day before the Temporary Restraining Order was set to expire,
26 Plaintiffs filed a supplemental brief. (Suppl. Br. (ECF No. 25).)
27 ////
28 ////
1 LEGAL STANDARD
2 “A preliminary injunction is an extraordinary remedy never awarded as of right.”
3 Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a
4 preliminary injunction must establish that he is likely to succeed on the merits, that he
5 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance
6 of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. A
7 preliminary injunction may only be awarded “upon a clear showing” of evidence that
8 supports each relevant preliminary injunction factor. Id. at 22. “This ‘clear showing’
9 requires factual support beyond the allegations of the complaint, but the evidence
10 need not strictly comply with the Federal Rules of Evidence.” CI Games S.A. v.
11 Destination Films, No. 2:16-cv-05719-SVW-JC, 2016 WL 9185391, at *11 (C.D. Cal.
12 Oct. 25, 2016).
13 Alternatively, in the Ninth Circuit, “’serious questions going to the merits’ and a
14 hardship balance that tips sharply towards the plaintiff can support issuance of an
15 injunction, so long as the plaintiff also shows a likelihood of irreparable injury and that
16 the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 622
17 F.3d 1045, 1053 (9th Cir. 2010). Serious questions are those “which cannot be
18 resolved one way or the other at the hearing on the injunction.” Bernhardt v. Los
19 Angeles County, 339 F.3d 920, 926 (9th Cir. 2003) (citation omitted).
20 DISCUSSION
21 Plaintiffs have not successfully shown a likelihood of success on the merits. The
22 Court previously granted a Temporary Restraining Order because, at that time, the
23 City had apparently not communicated with Plaintiffs or actually provided Plaintiffs
24 with any reasonable accommodations. This is no longer the case. Considering each
25 of Plaintiffs’ claims, it no longer appears that they are likely to succeed on the merits of
26 those claims or that Plaintiffs have raised serious questions going to the merits of
27 those claims.
28 ////
1 I. ADA Title II
2 Plaintiffs’ first and primary claim is that the City has failed to provide reasonable
3 accommodations for Plaintiffs’ disabilities. Title II of the ADA requires that “no
4 qualified individual with a disability shall, by reason of such disability, be excluded
5 from participation in or be denied the benefits of the services, programs, or activities
6 of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
7 § 12132. While this requires the City to make “reasonable modifications” to its
8 policies, practices, and procedures to avoid discrimination on the basis of disability, it
9 does not mandate that the City make modifications that would “fundamentally alter
10 the nature of the service, program, or activity.” McGary v. City of Portland, 386 F.3d
11 1259, 1266 (9th Cir. 2004). Title II also does not require that Plaintiffs create “new”
12 programs in order to provide accommodations. Townsend v. Quasim, 328 F.3d 511,
13 518 (9th Cir. 2003) (“It is clear from the language of Title II and the integration
14 regulation that public entities are not required to create new programs that provide
15 heretofore unprovided services to assist disabled persons.”)
16 Here, the “program” in question is the implementation of Administrative Rule
17 7.10, which is the City’s program for enforcement of its unlawful camping ordinance,
18 cleanup of temporary shelters, and storage of unattended property. Naturally, this is
19 not a program that “benefits” Plaintiffs in any traditional sense. Nevertheless, as a
20 program implemented by the City, Title II still requires the City of Vallejo to take
21 Plaintiffs’ disabilities into account in how the City enforces its municipal code. Put
22 another way, “compliance with municipal code enforcement can constitute a benefit
23 of the services, programs, or activities of a public entity under Title II.” McGary v. City
24 of Portland, 386 F.3d 1259, 1269 (9th Cir. 2004). Thus, the City must make reasonable
25 modifications to its policies, practices, and procedures in implementing Rule 7.10
26 such that Plaintiffs are not subject to discrimination on the basis of their disability.
27 The City has now identified several accommodations that it can provide
28 Plaintiffs. In addition to the added time before removal that Plaintiffs have already
1 been permitted by virtue of the Court’s Temporary Restraining Order, the City offered
2 a further extension until July 25, 2025. The City also offered to store Plaintiffs’
3 belongings for at least 90 days and to provide transport to housing should Plaintiffs
4 succeed in their quest to secure a more permanent living situation.
5 In their Reply brief, Plaintiffs did not identify any additional accommodations
6 besides being permitted to remain in their present location until they secure housing.
7 At oral argument, the Court specifically inquired if there were other accommodations
8 they were requesting. Plaintiffs only requested that they be permitted to remain
9 where they are or be provided with hotel vouchers until they could secure housing. In
10 either case, this likely represents a modification that would fundamentally alter the
11 implementation of Rule 7.10.
12 As noted, section Rule 7.10 is an administrative rule enacted to enforce
13 unlawful camping ordinances and remove temporary shelters. Permitting Plaintiffs to
14 stay in their present location until they obtain housing seemingly undermines the
15 fundamental purpose of the program. Plaintiffs’ declarations detail ongoing,
16 sometimes years-long, struggles with homelessness and lengthy searches for housing.
17 (See ECF No. 1-2 at 7–8 ¶ 5, 18 ¶ 4.) This is not Plaintiffs’ failing. From the record
18 available to the Court, it appears that Plaintiffs are all in serious need of permanent
19 housing and genuinely desire such housing. Indeed, at the hearing, the undersigned
20 was honored to speak to each of the Plaintiffs directly, and it was clear they have spent
21 considerable time and effort trying to locate housing, with no success. If these
22 Plaintiffs, who face serious disabilities, are unable to find housing, it is abundantly
23 clear that it is the system itself that has failed, not Plaintiffs. However, this also means
24 that permitting Plaintiffs to remain in their present locations would be an indefinite
25 delay in the enactment of Rule 7.10 and the removal of the encampment. This would
26 not be a modification to the City’s program, but what effectively is its nullification as it
27 relates to Plaintiffs for the foreseeable future. As such, it is a modification that would
28 fundamentally alter the “program,” that is, the enforcement of Rule 7.10.
1 Similarly, for the City to provide Plaintiffs with housing at hotels, the City would
2 need to create additional programs. The ADA does not require the creation of “new
3 programs that provide heretofore unprovided services to assist disabled persons.”
4 Where Do We Go Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852, 862 (9th Cir. 2022)
5 (internal citations and quotations omitted). While this is a very understandable
6 request, under the law this is unlikely to be a “reasonable accommodation” as that
7 term is understood in the context of the ADA.
8 In Plaintiffs’ Supplemental Brief, filed the day before the Temporary Restraining
9 Order was set to expire, Plaintiffs suggest that their ADA claims do not only concern
10 the encampment removal actions. (Suppl. Br. at 4.) Plaintiffs then suggest that they
11 require accommodations as it relates to access to the Navigation Center. (Id. at 5–6.)
12 However, the present action and Plaintiffs’ original motion clearly concern Plaintiffs’
13 removal from their temporary housing locations and the implementation of Rule 7.10.
14 (See ECF No. 1.) Whether Plaintiffs have been provided reasonable accommodations
15 as it relates to their ability to access temporary and transitional housing locations is
16 outside the scope of this action and the present Motion.
17 Also in the Supplemental Briefing, Plaintiffs suggest that they would accept
18 housing at “the Broadway Project” which Plaintiffs state is set to open on August 18,
19 2025. (Suppl. Br. at 7.) The suggestion that this represents a possible
20 accommodation the City can provide appears to be based on speculation. According
21 to the Plaintiffs, the Broadway Project is not yet open, and it is unclear that Plaintiffs
22 are eligible for admission to the Broadway Project. While the Court hopes that this
23 will ultimately present a solution for Plaintiffs’ lack of housing, it is not sufficiently
24 concrete to reasonably require the City to provide it as an accommodation, and in any
25 event the possibility of future housing is only tangentially related to the City’s
26 enforcement of Rule 7.10. Plaintiffs have thus not met their burden to establish that
27
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1 this is a reasonable accommodation that was denied or not provided.1 Mayfield v. City
2 of Mesa, 131 F.4th 1100, 1110 (9th Cir. 2025).
3 In short, the City has now offered accommodations to Plaintiffs, and Plaintiffs
4 have not identified any further reasonable accommodations that the City could
5 provide but that it has not yet considered or provided. Id. (“A plaintiff asserting a
6 reasonable-accommodation claim under Title II bears the initial burden of producing
7 evidence of the existence of a reasonable accommodation that was denied or not
8 provided.” (cleaned up)). As such, the Court cannot find at this stage that Plaintiffs will
9 likely be able to show that the City has violated Title II of the ADA by failing to provide
10 Plaintiffs with reasonable accommodations, or that there exist serious questions going
11 to the merits.2 Accordingly, Plaintiffs do not have a likelihood of success on the merits
12 of this claim.
13 II. State-Created Danger Doctrine
14 Plaintiffs also have not established a likelihood of success on their claim under
15 the state-created danger doctrine. The state-created danger doctrine arises from the
16 due process clause of the Fourteenth Amendment. To state a claim under this
17 doctrine, Plaintiffs must establish three elements. Plaintiffs must show “[1] that the
18 [state actors’] affirmative actions created or exposed [them] to an actual, particularized
19 danger that [they] would not otherwise have faced . . . [2] that the injury [they] suffered
20 was foreseeable . . . [3] that the [state actors] were deliberately indifferent to the
21 known danger.” Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019).
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24 1 The Court strongly encourages the City to contemplate all possible avenues to assist Plaintiffs in
securing housing whether at the Navigation Center, the Broadway Project, or elsewhere.
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2 At oral argument, Anthony Prince, General Counsel for the California Homeless Union appearing as an
26 amicus, argued that the ADA requires that any determination that an accommodation created an undue
burden or a fundamental alteration to the program must be made by the head of the public agency and
27 be accompanied by a written statement of the reasons for reaching that conclusion. This is a
procedural requirement that is easily rectified by the City. As such, it does not alter the Court’s analysis
28 as to Plaintiffs’ likelihood of success.
1 Notably, the first element requires that Plaintiffs identify an “actual,
2 particularized danger” that was created by a state actor’s affirmative actions. Plaintiffs
3 do not identify such a particularized danger here. Plaintiff Hipp noted a variety of
4 benefits to his current location: the proximity of clinics and other resources, the
5 presence of security nearby, the fact that people know where to find him, and the
6 calming presence of the waterfront. (ECF No. 1-2 at 3 ¶¶ 11–13.) Plaintiff Tate
7 discussed the importance of access to the library for her autistic son, Plaintiff M.T., and
8 the adjacency of local facilities. (Id. at 10–11 ¶¶ 15–19.) Plaintiff Watson noted many
9 of the same benefits as the other Plaintiffs, as well as how her location assists in
10 managing her PTSD. (Id. at 20 ¶ 7.)
11 The Court understands that the advantages provided by their current location
12 are significant given Plaintiffs’ disabilities. Similarly, the Court understands that
13 without the ability to remain in their current location, Plaintiffs will likely face
14 challenges and hazards. Those challenges and hazards, however, are inherent in
15 being unhoused, which is why the homelessness crisis creates such a public health
16 emergency. The state-created danger doctrine is not properly applied where, as
17 here, the dangers in question are generalized dangers inherent to homelessness that
18 are not created by the actions of a state actor. See Cobine v. City of Eureka, 250 F.
19 Supp. 3d 423, 433 (N.D. Cal. 2017); see also Koontz v. Town of Fairfax, No. 25-cv-
20 01311-RFL, 2025 WL 1766046, *6-7 (N.D. Cal. 2025); Coalition on Homelessness v.
21 City and County of San Francisco, 758 F. Supp. 3d 1102, 1130 (N.D. Cal. 2024).
22 Rather, where courts have applied the state-created danger doctrine to attempts to
23 remove unhoused individuals, they generally rely on more concrete dangers, such as
24 present dangerous weather conditions, that can be considered actual and
25 particularized. See Sacramento Homeless Union v. County of Sacramento, 617 F.
26 Supp. 3d 1179, 1193 (E.D. Cal. 2022) (finding a likelihood of success for claim under
27 the state-created danger doctrine where the county was seeking to “sweep”
28 encampments during extreme heat). That is not the case here. In their supplemental
1 brief, Plaintiffs argue that the dangers they face are “not generalizable to
2 homelessness; they are distinct dangers that are specific to each individual plaintiff[.]”
3 (Suppl. Br. at 4.) But the dangers identified by Plaintiffs, while not universal
4 experiences for all who are homeless, are still generalized, persistent risks created by
5 Plaintiffs’ disabilities and lack of housing. They are not the sort of discrete, identifiable
6 dangers created by state actors that warrant the invocation of the state-created
7 danger doctrine.
8 As Plaintiffs have not identified an actual and particularized danger that was
9 created by a state actor or that Plaintiffs were exposed to by the actions of a state
10 actor, Plaintiffs have not established a likelihood of success on the merits, even under
11 a serious questions analysis, on their state-created danger cause of action.
12 III. Other Due Process Claims
13 Separately from their state-created danger doctrine claim, Plaintiffs also allege
14 a violation of their substantive and procedural due process rights predicated on the
15 City’s implementation of Rule 7.10. In this claim Plaintiffs mainly reference language
16 from Rule 7.10’s “Policy” section in which states in part that the City’s intent is “to
17 promote a balanced approach to addressing potential negative impacts of
18 encampments” and that the Rule aims to “[e]numerate a continuum of response
19 options, emphasizing proportionality of response in relation to totality of
20 circumstances or impacts present at an encampment.” (Mot. at 18–19; Flor Decl. (ECF
21 No. 14), Ex. B at 1.)
22 To state a due process claim, Plaintiffs must establish that a state actor deprived
23 them of a constitutionally protected interest. Shanks v. Dressel, 540 F.3d 1082, 1087,
24 1090 (9th Cir. 2008). Plaintiffs have not established that they have been deprived of
25 any such interest by the actions of a state actor. Rather, the quoted language in Rule
26 7.10 is merely precatory, and does not create any protected interest under the Due
27 Process Clause. Cf. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (noting that a
28 “particular statutory provision . . . may be so manifestly precatory that it could not fairly
1 be read to impose a binding obligation on a governmental unit.” (quoting Pennhurst
2 State Sch. and Hosp. v. Halderman, 451 U.S. 1, 27 (1981)). In their Reply, Plaintiffs
3 reference an interest in family integrity that is violated by criminal liability for Plaintiff
4 Tate. (Reply at 13–14.) But there is no indication that Plaintiff Tate presently faces
5 criminal charges or that the encampment removal proceedings at issue involve
6 criminal prosecution of those removed. Plaintiffs do not have a likelihood of success
7 on their substantive and procedural due process claims due to their failure to identify
8 a protected interest violated by the City’s encampment removal.3
9 CONCLUSION
10 As Plaintiffs have not established a likelihood of success on any of their claims,
11 the Court does not need to address the remaining Winter factors.4 See Aargon
12 Agency, Inc. v. O’Laughlin, 70 F.4th 1224, 1240 (9th Cir. 2023). The Court will deny
13 Plaintiffs’ Motion based on the failure to establish a likelihood of success on the merits
14 or serious questions going to the merits.
15 Accordingly, and for the foregoing reasons, IT IS HEREBY ORDERED that
16 Plaintiffs’ Motion for Preliminary Injunction (ECF No. 5) is DENIED. The Temporary
17 Restraining Order shall expire, as previously ordered, on July 25, 2025. However,
18 under Administrative Rule 7.10 the City of Vallejo must provide at least 72-hours’
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3 In their Supplemental Brief, Plaintiffs allege that Defendants violated Plaintiff Watson’s procedural due
process rights and this Court’s Temporary Restraining Order when it discarded Plaintiff Watson’s
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belongings during the encampment removal proceedings. While the Court understands that the loss
of this property might seriously affect Plaintiff Watson, the Court does not address these issues here.
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The question presently before the Court is whether preliminary injunctive relief enjoining the City from
22 removing Plaintiffs is warranted. Preliminary injunctive relief based on the disposal of Plaintiffs’
personal property is not warranted as this is both a past harm and a harm for which economic damages
23 are the appropriate remedy. See Rent–A–Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944
F.2d 597, 603 (9th Cir. 1991) (“[E]conomic injury alone does not support a finding of irreparable harm,
24 because such injury can be remedied by a damage award.” (internal citation omitted)). Similarly, if
there was a violation of the Court’s prior order, some remedy might be warranted. But that is an issue
25 that must be addressed separately and does not alter the outcome of this Order.
26 4 The Court notes that, as pro se individuals, Plaintiffs’ claims are subject to the screening requirements
of 28 U.S.C. § 1915(e)(2)(B). Pursuant to the Local Rules, pre-trial proceedings in this matter are
27 referred to the assigned Magistrate Judge. See Local Rule 302(c)(21). Through this Order, the Court
takes no position on the result of that screening order, and nothing in this Order should be read to
28 suggest a particular result.
1 | notice in writing to Plaintiffs before seeking to remove Plaintiffs’ encampments. This
2 | matter is referred to the assigned Magistrate Judge for all further pretrial
3 | proceedings.
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5 IT IS SO ORDERED.
é| Dated: _July 24, 2025 “Daal A
Hon. Daniel alabretta
/ UNITED STATES DISTRICT JUDGE
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