Bilodeau v. City of Medford

ANDRE BILODEAU, ROBERT BESSY, AMBER MCNAB, GREG KILLINGSWORTH, TRAVIS GREINER, and RONDA BJORK, Plaintiffs, v. CITY OF MEDFORD, Defendant.

No. 1:21-cv-00766-CL

United States District Court, D. Oregon, Medford Division

November 29, 2022

FINDINGS AND RECOMMENDATION

MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE

This case conies before the Court on Plaintiffs' Motion for Class Certification (ECF No. 21). For the reasons below Plaintiffs' motion should be DENIED.

BACKGROUND

Plaintiffs are six homeless or unhoused individuals who live in Medford Oregon. First Am. Compl. ¶¶ 24-60, ECF No. 40 (“FAC”). Plaintiffs allege they are involuntarily homeless. Id. Plaintiff Travis Greiner has been homeless or unhoused for over six years. Declaration of Travis Greiner ¶ 1, ECF No. 28-3 (“Greiner Deci.”). In 2021, Plaintiff Greiner was “swept from a campsite twice[,]... cited for possession of a controlled substance and prohibited camping[,] [and] issued an exclusion zone notice.” Id. ¶ 3. Plaintiff Greiner cannot go to the Urban Campground, a shelter site in Medford “because of its curfew that would keep [him] from being able to do [his] work and care for [his] mother.” Id. ¶ 6. Plaintiff Ronda Bjork has been homeless or unhoused for over ten years. Declaration of Ronda Bjork ¶ 1, ECF No. 28-2 (“Bjork Deci.”). In 2021, Plaintiff Bjork was “swept from a campsite[,]... cited with Possession of a Controlled Substance[,] and given an exclusion zone notice.” Id. ¶ 4. Plaintiff Bjork was also “cited for Prohibited Car Camping in 2021.” Id. ¶ 6. Plaintiff Bjork cannot go to the Urban Campground . “because of discipline.” Id. ¶ 9.

Plaintiffs allege that Defendant, through a combination of ordinances, customs, policies, and practices, has unconstitutionally punished and criminalized the existence of homeless people in Medford. Pls.' Mot. Class Certification 5, ECF No. 21 (“Pls.' Mot.”). Plaintiffs seek declaratory and injunctive relief from the enforcement of the following Medford Municipal Code (“MMC”) ordinances: MMC 5.256 (Civil Exclusion), MMC 5.257 (Prohibited Camping, Lying, and Sleeping), MMC 5.258 (Prohibited Solicitation), MMC 5.296 (Theft of Services), and MMC 5.557 (Overnight Sleeping in Vehicles).^[1] See FAC ¶¶ 114-15, ECF No. 40; see also Pls.' Mot. 9, ECF No. 21. Plaintiffs seek relief for themselves and on behalf of all involuntarily homeless people in Medford. Pls.' Mot. 9, ECF No. 21.

PROCEDURAL HISTORY

On May 18, 2021, Plaintiffs filed their original complaint. See Compl., ECF No. 1. On July 15, 2021, Defendant filed an answer. See Answer, ECF No. 7.

On March 15, 2022, Plaintiffs filed a motion for class certification. See Pls.' Mot., ECF No. 21. On April 15, 2022, Plaintiffs filed a motion for leave to file an amended complaint. See Pls.' Mot. Amend, ECF No. 25.

On September 13, 2022, this Court held oral argument on Plaintiffs' motion for class certification and Plaintiffs' motion for leave to file an amended complaint. See Minutes, ECF No. 36. The Court granted Plaintiffs' motion for leave to file an amended complaint and ordered Plaintiffs to file their amended complaint by September 23, 2022. See Order, ECF No. 37. Plaintiffs failed to do so within that time frame.

On October 14, 2022, the Court issued the following order:

Plaintiffs' amended complaint was due on 9/23/2022. Plaintiffs have failed to file their amended complaint. Plaintiffs are ordered to Show Cause in Writing by 10/21/2022 why this case should not be dismissed for lack of prosecution.

Order, ECF No. 39.

On October 24, 2022, Plaintiffs filed their amended complaint. See FAC, ECF No. 40. Plaintiffs' counsel attached a letter informing the Court that it was counsel's “original mistaken understanding that when [he] made a motion and attached the amended complaint and then that motion was ruled on in [his] client's favor, the amended complaint was then entered.” Letter, ECF No. 40-1.^[2] On November 7, 2022, Defendant filed an answer to Plaintiffs' FAC. See Answer, ECF No. 42.

STANDARD OF REVIEW

Plaintiffs seeking class certification must affirmatively demonstrate that they meet the . four threshold requirements of Fed.R.Civ.P. 23(a) and at least one of the requirements of Fed.R.Civ.P. 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). To satisfy Rule 23(a), the plaintiffs must show that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). To certify a class under Rule 23(b)(2), as Plaintiffs seek here, the plaintiffs must also show that the defendant “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed.R.Civ.P. 23(b)(2).

Plaintiffs bear the burden of demonstrating that each element of Rule 23 is satisfied. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). While the primary focus is not on the merits of the plaintiffs' claims, a court must conduct a “rigorous” analysis and conclude that each of the four requirements of Rule 23(a) has been affirmatively shown with facts before certification can occur. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982) (a class action “may only be certified if the trial court is satisfied, after a rigorous analysis,- that the prerequisites of Rule 23(a) have been satisfied”); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”). However, at the class certification stage, a court does not hold plaintiffs to the same evidentiary standards that will apply at trial. See Sail v. Corona Reg'l Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018).

DISCUSSION

Pursuant to Fed.R.Civ.P. 23, Plaintiffs move for an order certifying a class defined as “all involuntarily homeless individuals living in Medford, Oregon” including “homeless individuals who sometimes sleep outside of city limits to avoid harassment and punishment by Defendant as addressed in this lawsuit.” Pls.' Mot. 5, ECF No. 21. Defendant argues Plaintiffs' motion should be denied because: (1) Plaintiffs' proposed class definition is inadequate as Plaintiffs fail to define the qualifier “involuntarily;” (2) Plaintiffs fail to provide evidence in support of their motion; (3) Plaintiffs fail to establish numerosity, commonality, typicality, and adequacy as required under Fed.R.Civ.P. 23(a); and (4) Plaintiffs fail to establish whether Defendant “acted or refused to act” as required under Fed.R.Civ.P. 23(b). Def.'s Resp. 18-43, ECF No. 26. For the reasons that follow Plaintiffs' motion for class certification (ECF No. 21) should be denied.

I. Plaintiffs' proposed class definition is adequate.

Defendant argues Plaintiffs' proposed class definition is inadequate because Plaintiffs fail to define the qualifier “involuntarily.” Def.'s Resp. 20, ECF No. 26. The Ninth Circuit recently explained that “[p]ersons are involuntarily homeless if they do not ‘have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free.'” Johnson v. City of Grants Pass, 50 F.4th 787, 792 n.2 (9th Cir. 2022) (quoting Martin v. City of Boise, 920 F.3d 584, 617 n.8 (9th Cir. 2019)). Put differently, “[a] person with access to temporary shelter is not involuntarily homeless unless and until they no longer have access to shelter.” Id. at 805 n.24. The Court notes that Plaintiffs' proposed class definition is identical to the proposed class definition in Johnson. See 50 F.4th at 795. As such, the Court concludes Plaintiffs' proposed class definition is adequate under Johnson and Martin.

II. Plaintiffs have failed to submit material sufficient for the Court to form a reasonable judgment on each Rule 23 requirement.

As a preliminary matter, the Court addresses the sufficiency of the evidence that Plaintiffs have presented to the Court at the class certification stage.^[3]

“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350 (emphasis in original). However, the Ninth Circuit has “never equated a district court's ‘rigorous analysis' at the class certification stage with conducting a mini-trial.” Sali, 909 F.3d at 1004. A plaintiff must submit “evidentiary proof' in support of class certification, but such proof need not be admissible evidence. See id. “[I]n evaluating a motion for class certification, a district court need only consider ‘material sufficient to form a reasonable judgment on each [Rule 23(a)] requirement.'” Id. at 1005 (citation omitted; alteration in original).

Plaintiffs submitted no supporting evidence with their motion for class certification. See Pls.' Mot., ECF No. 21. With their reply, Plaintiffs submitted 220 pages of various evidence, consisting of: (1) a declaration from Plaintiffs' counsel, see ECF No. 28-1; (2) two brief declarations of Plaintiffs Bjork and Greiner see ECF Nos. 28-2, 28-3; (3) a brief declaration from Plaintiffs' counsel's intern, see ECF No. 28-4...