Thompson v. Allen

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TREVA THOMPSON, et al., )

)

Plaintiffs, )

)

v. ) CIVIL CASE NO. 2:16-cv-783-ECM

) (wo)

JOHN H. MERRILL, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Now before the court is a Motion for Preliminary Injunction filed by the Plaintiffs

on May 27, 2020. (Doc. 215). The Plaintiffs seek a preliminary injunction only as to count

13 of their complaint (doc. 1) and supplemental complaint (doc. 93).1

After careful consideration of the parties’ submissions and the applicable law, for

reasons to be discussed below, the motion for preliminary injunction is due to be DENIED.

I. JURISDICTION AND VENUE

The court has subject-matter jurisdiction over the claims at issue pursuant to 28

U.S.C. § 1331. The parties do not contest personal jurisdiction or venue, and the court

finds adequate allegations to support both.

1 The Plaintiffs did not file an amended complaint complete unto itself, but instead filed a

supplemental complaint which added parties, facts which supplemented fact in claims in the

original complaint, and new facts and claims. (Doc. 93).

II. PROCEDURAL HISTORY AND FACTS

The procedural history and facts relevant to the preliminary injunction motion are

as follows:

Alabama state law prohibits persons convicted of various felonies from voting until

restoration of civil and political rights. Ala. Const. art VIII. Individuals with certain

disqualifying felony convictions can have their voting rights restored through a Certificate

of Eligibility to Register to Vote (“CERV”), issued by the Alabama Board of Pardons and

Paroles (“the Board”). The Board must grant a CERV if a person has (1) lost his or her

right to vote by reason of conviction in a state or federal court for a crime other than those

listed in a separate section, (2) no pending felony charges, (3) paid all fines, court costs,

fees, and victim restitution ordered by the sentencing court at the time of sentencing on

disqualifying cases, and (4) been released upon completion of sentence, pardoned, or

successfully completed probation or parole. Ala. Code §15-22-36.1.

The original Plaintiffs initially filed this lawsuit on September 26, 2016. (Doc. 1).

The complaint brought a claim in count 13 on behalf of various plaintiffs, including movant

Treva Thompson (“Thompson”), challenging the denial of a CERV to those who are unable

to pay legal financial obligations (LFOs). (Doc. 1 at 53). In the original complaint, the

Plaintiffs alleged that Thompson owes over $40,000 in LFOs that she is not financially

able to pay in full at this time or anytime in the foreseeable future, and her inability to pay

these fines makes her ineligible for a CERV that would restore her voting rights. (Doc. 1

at 10). The complaint alleges that Thompson “wishes to vote in the 2016 and future

elections.” (Id.) In support of the motion for preliminary injunction, the Plaintiffs have

presented evidence that Thompson cannot pay the $40,000 she owes in LFOs. (Doc. 215

at 7).

On June 30, 2017, the then-Plaintiffs, including Thompson, filed a motion for

preliminary injunction. (Doc. 56). The requested preliminary injunction was for relief

based on counts 6-10 of the Complaint. (Doc. 56 at 17). There was no request for

preliminary injunction with regard to count 13 at that time. The motion was denied on July

28, 2017. (Doc. 72).

On March 1, 2018, the Plaintiffs filed a supplemental complaint. (Doc. 93). The

supplemental complaint, among other things, added movant Darius Gamble (“Gamble”) as

a Plaintiff and added Plaintiff Greater Birmingham Ministries (“GBM”) to count 13. (Doc.

93 at 15). The supplemental complaint alleges that Gamble owes $63,073.30 in LFOs

which is he not financially able to pay, and that he “wishes to vote in the 2018 and future

elections.” (Doc. 93 at 7). In the motion for preliminary injunction, Gamble has provided

evidence that he owes and cannot pay $30,000 in LFOs. (Doc. 215 at 9).

On January 24, 2020, this Court entered an Amended Scheduling Order which set

deadlines for discovery on July 20, 2020 and for dispositive motions on August 19, 2020.

Trial of the case is set for the February 1, 2021 trial term. (Doc. 195).

In their May 27, 2020 motion, the Plaintiffs seek a preliminary injunction on their

claim in count 13 of the complaint and supplemental complaint on the basis that Thompson

and Gamble cannot pay their LFOs in full before the upcoming municipal election on

August 25, 2020 and general election on November 3, 2020. (Doc. 215 at 18). They

contend that under Jones v. Governor of Florida, 950 F.3d 795 (11th Cir. 2020), they are

likely to succeed on the merits of their claim.

III. STANDARD OF REVIEW

A district court may grant injunctive relief if the plaintiff establishes (1) a substantial

likelihood of success on the merits; (2) irreparable injury will be suffered unless the

injunction issues; (3) the threatened injury to the movant outweighs whatever damage the

proposed injunction may cause to the moving party; and (4) if issued, the injunction would

not be adverse to the public interest. Charles H. Wesley Educ. Found., Inc. v. Cox, 408

F.3d 1349, 1354 (11th Cir. 2005). Additionally, the injury must be “neither remote nor

speculative, but actual and imminent.” Northeast Fla. Chapter of Ass'n of Gen.

Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990).

“A preliminary injunction is an extraordinary and drastic remedy not to be granted

unless the movant clearly established the ‘burden of persuasion.’” McDonald's Corp. v.

Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998).

As long as the notice requirement of Rule 65 of the Federal Rules of Civil Procedure

is met, and the material facts are not in dispute, or the disputed facts are not material to the

preliminary injunction sought, a district court need not conduct an evidentiary hearing on

the motion. Id. at 1313.2

2 In this case, the Court finds that there is appropriate notice and that there are no material facts in

dispute for which an evidentiary hearing would be required.

IV. DISCUSSION

At the outset, the Court notes that it rejects any argument by the Defendant that the

Plaintiffs cannot establish a likelihood of success on the merits because Jones v. Governor

of Florida, 950 F.3d 795 (11th Cir. 2020), was wrongly decided. Jones is binding law in

this circuit. See, e.g., United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019). The

Court, however, pretermits any further discussion of whether the Plaintiffs can establish a

likelihood of success on the merits under Jones because, for reasons to be discussed, the

Court concludes that the Plaintiffs have failed to demonstrate that they will suffer

imminent, irreparable harm if the Court does not grant the preliminary injunction before

trial on the merits. See Lake Martin Realty, Inc. v. Lake Martin Real Estate Co., LLC, 2019

WL 1938802, at *2 (M.D. Ala. 2019).

It is certainly the case that in Jones, the court upheld a finding of irreparable harm.

950 F.3d at 828. Jones, however, is distinguishable from this case because of the

substantially dissimilar timing of the filing of the motions for preliminary injunction.

In Jones, a state law requiring payment of LFOs to obtain re-enfranchisement was

passed in May 2019. 950 F.3d at 803. Plaintiff Jones filed his lawsuit on June 28, 2019,

the case was consolidated with other cases two days later, and the plaintiffs jointly moved

for preliminary injunction in August 2019. Id. at 804. In this case, Thompson brought

count 13 on September 26, 2016, and GMB and Gamble brought count 13 on March 1,

2018, but no motion for preliminary injunction was filed as to those claims at or near the

time that the complaints were filed. The Plaintiffs did not file the motion for preliminary

injunction as to count 13 until May 27, 2020, more than three and a half years after the

initial complaint and more than two years after the supplemental complaint.

The substantial length of time between the filings of the initial and supplemental

complaint and the filing of the motion for preliminary injunction in this case, and the short

length of time between the filings in Jones, is a significant distinction because irreparable

harm must be “imminent,” irreparable harm. See Northeast Fla. Chapter of Ass'n of Gen.

Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990).

“Imminent” harm includes a consideration of whether the Plaintiffs acted sufficiently

quickly to obtain relief. See Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th

Cir. 2016). “Indeed, the very idea of a preliminary injunction is premised on the need for

speedy and urgent action to protect a plaintiff’s rights before a case can be resolved on its

merits.” Id. at 1248–49 (emphasis in original).

In analyzing whether there is imminent, irreparable harm in this case, the Court finds

that the factual basis for distinguishing Jones—the extended period of time between filing

the complaints and the motion for preliminary injunction—is also fatal to a finding of

irreparable harm. See Wreal, 840 F.3d 1249. In Wreal, the court upheld a finding of no

irreparable harm where the motion was filed five months after the complaint. Id. at 1248.

The court noted that the preliminary injunction motion relied on evidence that was

available to the plaintiff at the time it filed its complaint. Id. at 1248-49. In this case, the

preliminary injunction motion relies on facts supporting Thompson, GBM, and Gamble’s

claims in count 13 which were known to the Plaintiffs at the time their claims were first

filed. Thompson pleaded in her complaint in 2016 that she could not afford to pay $40,000

in LFOs, which is the amount she identifies in her motion for preliminary injunction, and

Gamble alleged in 2018 and provides evidence now that he is unable to pay his LFOs.

(Doc. 1 at 10, Doc. 93 at 7, & Doc. 215 at 7-8). Therefore, because the instant motion for

preliminary injunction was filed not just months, but years, after the factual basis of the

Plaintiffs’ claims were known to them, the Plaintiffs have not shown they will suffer

imminent, irreparable harm. See Powers v. Nielsen, 806 F. App'x 958, 959 (11th Cir. 2020)

(stating “the almost one-year delay between filing the suit and filing her motion for a

preliminary injunction belie[s] the notion that irreparable injury would be suffered unless

the injunction is issued.”).

Further undermining a showing of imminent, irreparable harm is the fact that not

only did the Plaintiffs not file the motion for preliminary injunction at the time the claims

in count 13 were filed, count 13 was not included in a motion for preliminary injunction

filed on June 30, 2017. (Doc. 56). The Plaintiffs offer no explanation for why they

consider the harm resulting from the violation of law pleaded by Thompson in count 13 as

imminent and irreparable now, but did not in 2017.3 Furthermore, Thompson alleged a

desire to vote in the 2016 and future elections and Gamble alleged a desire to vote in the

2018 and future elections (doc. 1 & doc. 93), but no preliminary injunction was sought on

count 13 near the time of the 2016 or 2018 elections. The Plaintiffs’ filing now, after a

3 Even if the Plaintiffs had taken that position, it is not clear they would have prevailed because

the 2017 motion was denied in part because the delay in its filing undermined finding of irreparable

harm. See Thompson v. Alabama, 2017 WL 3223915, at *11 (M.D. Ala. 2017).

lack of action at those earlier points in time, can hardly be considered acting with “speed

or urgency.” Wreal, 840 F.3d at 1248.

It appears that the Plaintiffs have relied on Jones as the reason for the filing of their

motion, rather than facts. The Eleventh Circuit’s decision, however, applied existing

precedent, and the court did not purportedly decide an issue of first impression. Jones, 980

F.3d at 817-20 (applying heightened scrutiny based on existing precedent). Furthermore,

the district court’s decision in Jones, decided in October 2019, gave Plaintiffs notice of the

analysis of the wealth discrimination claim. See Jones v. DeSantis, 410 F. Supp. 3d 1284

(N.D. Fla. 2019). This Court cannot find, therefore, that the Plaintiffs have shown the

urgency required for a finding of imminent, irreparable harm by waiting to file their motion

for more than six months after the district court’s decision in Jones. Wreal, 840 F.3d at

1248.

Even if the date on which Jones was decided by the Eleventh Circuit is the relevant

point for analysis, the Jones opinion was issued on February 19, 2020, and the Plaintiffs

inexplicably delayed filing their motion for preliminary injunction for over three months,

until May 27, 2020. The Plaintiffs have failed to show imminent, irreparable injury. See

Wreal, 840 F.3d at 1248; see also Thompson, 2017 WL 3223915, at *11 (finding that

“Plaintiffs have known since April 18, 2017, when Governor Kay Ivey signed a

proclamation, of the dates for the special election for the United States Senate seat in

Alabama. Yet, Plaintiffs delayed filing a preliminary injunction motion until nearly two-

and-a-half months later on June 30, 2017).

The Defendant also opposes preliminary relief on a slightly different timing basis.

She points out that the voter registration deadline for the August 25, 2020 municipal

election is August 11, 2020 and the deadline for the November 3, 2020 general election is

October 19, 2020. The Defendant argues that there is insufficient time for her to implement

a new process of evaluating CERVs if this Court were to grant relief, especially if the relief

entered would not be limited to the individual Plaintiffs, but would require a process to be

implemented for all potentially eligible CERV applicants.

The Court agrees that the time remaining between any relief ordered by this Court

and the registration deadlines for the elections identified by the Plaintiffs has not been

shown to be sufficient to allow the Plaintiffs to vote in the August and November elections,

even if the Court were to enter injunctive relief. See Jones, 950 F.3d at 805 (noting that

the district court stayed its order while on appeal as to the second part of a two-part order

which enjoined the defendants from preventing the plaintiffs from registering to vote if

they assert inability to pay and enjoined them from preventing the plaintiffs from voting if

they could establish that they are unable to pay). Therefore, the uncertainty of the

Plaintiffs’ ability to obtain relief, which arises from their own late filing of the motion, also

undermines a finding of imminent, irreparable harm. See Thompson, 2017 WL 3223915,

at *11 (stating “with a July 31 voter registration deadline for the special primary election

looming and given the multitude of steps that the State must take to get ready for the

election, the delay nevertheless cuts against the premise that these HB 282 voters needed

urgent action to protect their rights.”); cf. Siegel v. LePore, 234 F.3d 1163, 1177 (11th Cir.

2000) (finding no showing of irreparable harm because even if manual recounts were to

resume pursuant to a discretionary state court order, “it is wholly speculative as to whether

the results of those recounts may eventually place Vice President Gore ahead.”).

V. CONCLUSION

For the reasons discussed, this Court concludes that due to the timing of the filing

of the motion for preliminary injunction, the Plaintiffs have “failed to demonstrate an

imminent injury that would warrant the ‘extraordinary and drastic remedy’ of a preliminary

injunction” before trial on the merits. Wreal, LLC, 840 F.3d at 1249 (citations omitted).

Accordingly, the motion for preliminary injunction is due to be and is hereby

ORDER DENIED.

DONE this 29th day of June, 2020.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE