Hardt v. City of Portland

1

DALE EVERETT HARDT and SCOTT WHITISH, Plaintiffs, v. CITY OF PORTLAND, MINGUS MAPPS, TED WHEELER, CARMEN RUBIO, DAN RYAN, and RENE GONZALEZ, Defendants.

No. 3:23-cv-01980-AN

United States District Court, D. Oregon

March 26, 2024

OPINION AND ORDER

Adrienne Nelson, United States District Judge

Pro se plaintiffs Dale Everett Hardt and Scott Whitish bring this action against defendants City of Portland (the "City"), Mingus Mapps, Ted Wheeler, Carmen Rubio Dan Ryan, and Rene Gonzalez, alleging violations of the Eighth and Fourteenth Amendments and breach of contract. Hardt originally filed this case in Multnomah County Circuit Court, but defendants removed the case to this Court under federal question jurisdiction.

On January 8, 2024, Hardt filed a Motion for Preliminary Injunction, ECF [10]. On February 5, 2024, the City filed a Motion to Dismiss, ECF [21]. On February 12, 2024, the individual defendants joined the City's Motion to Dismiss, ECF [24]. On March 15, 2024, Hardt filed a Motion to Expedite, ECF [30], seeking oral argument on the preliminary injunction motion. Because the Court finds that, after reviewing the parties' pleadings, oral argument will not help resolve the motion for preliminary injunction plaintiffs' Motion to Expedite is DENIED. Local R 7-1(d). Hardt's Motion for Preliminary Injunction is DENIED. The City's Motion to Dismiss, joined by the individual defendants, is GRANTED.

LEGAL STANDARD

A. Motion for Preliminary Injunction

A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, the plaintiff must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the favor of the plaintiff; and (4) an injunction is in the public interest. Id. at 20. If there are "serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff," as well as a showing that the plaintiff will suffer irreparable harm and the injunction is in the public interest, then a preliminary injunction may still issue. All. For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

B. Motion to Dismiss

A motion to dismiss for lack of subject matter jurisdiction is properly brought under Federal Rule of Civil Procedure 12(b)(1) to challenge a plaintiff's Article III standing to bring the case. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). To establish Article III standing, a plaintiff must show: "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs., Inc., 528 U.S. 167, 180-81 (2000). Each element "must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

At the motion to dismiss stage, the court "must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501 (1975). At the pleading stage, "general factual allegations of injury resulting from the defendant's conduct may suffice," but "[a] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Maya, 658 F.3d at 1068-69 (internal quotation marks omitted).

BACKGROUND

Plaintiffs' claims are related to a street encampment located in Portland, Oregon where unhoused individuals are presently living. Am. Compl., ECF [15], ¶¶ 1-2. Plaintiffs allege that defendants have "consistently maintained" the camp "for several years without abatement." Id. ¶ 2. Hardt has spent "significant amounts of money to fortify his residence" in response to "the unstable and unregulated activities of the residents of the camp." Id. Whitish allegedly "was forced to engage in a dangerous encounter with one resident of the illegal camp which resulted in damage to his vehicle." Id. ¶ 1.

Plaintiffs allege that though it is "illegal to urinate, defecate, or dispose of hazardous waste in public spaces," defendants have "knowingly housed thousands of individuals in unsafe, unregulated, and unsupported encampments" that lack "basic necessities" such as "toilets, running water, and trash service." Id. ¶ 3. Plaintiffs allege that this forces "the campers to spread disease and hazardous waste in areas the plaintiffs traverse regularly." Id. Plaintiffs allege that a disease, Shigella,^[1] has been spreading throughout the camp and a local business. Id. ¶ 6. Hardt "has a compromised immune system and no longer feels comfortable entering" the business where a worker contracted the disease. Id.

Plaintiffs allege that "[i]t is illegal to camp in public spaces inside city limits," and have "consistently requested that the camp . . . be removed," but defendants "have refused to remove it." Id. ¶ 4. Hardt filed an application on August 25, 2023 with the Parks Department, requesting that Kelly Point Park be used for "Emergency tent camping." Id. ¶ 9. The request was denied, and Hardt made two more requests to have the application approved by the city council. Id. Those requests were denied. Id.

During the election period of 2022, plaintiffs allege that defendant Wheeler "announced on public television that three mass camps would be opened by the end of 2023 that would significantly eliminate the street camping crisis." Id. ¶ 8. Plaintiffs allege that "[t]his was an intentionally deliberate promise that [Wheeler] did not fulfill in any significant way." Id.

DISCUSSION

A. Motion for Preliminary Injunction

Hardt^[2] seeks a preliminary injunction that would prohibit defendants from "illegally housing individuals unsafely on public property in a manner that threatens the plaintiff and the public at large." Pl.'s Mot. for Preliminary Inj. ("Pl.'s Mot. for Prelim. Inj."), ECF [10], at 1. Specifically, plaintiff asks this Court to require defendants to "provide[ ] toilets, running water, or trash services to the illegal campsites" in Portland, Oregon. Id.

Because plaintiffs seek injunctive relief that would "'order[ ] a responsible party to 'take action,'" it is a mandatory injunction. Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015) (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). Mandatory injunctions are particularly disfavored because they go "well beyond simply maintaining the status quo." Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994). Thus, a "district court should deny such relief 'unless the facts and law clearly favor the moving party.'" Id. (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979)). Put simply, mandatory injunctions "should not issue in 'doubtful cases.'" Garcia, 786 F.3d at 740 (quoting Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Tr., 636 F.3d 1150, 1160 (9th Cir. 2011)).

1. Likelihood of Success on the Merits

Hardt's motion was filed before the Amended Complaint, which added new claims. However, all parties have treated the Amended Complaint as the operative complaint; therefore, the Court relies on the claims in the Amended Complaint to assess Hardt's motion. The Amended Complaint asserts three claims: (1) violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment; (2) violation of the Equal Protection Clause of the Fourteenth Amendment; and (3) breach of contract. These claims are addressed in turn.

a. Eight Amendment Violation

Though the factual basis for this claim is not delineated, the Court understands this claim to allege that defendants are violating plaintiffs' rights to be free from cruel and unusual punishment by "forc[ing] human beings to live in camps that do not provide the services that are standard for human cohabitation," by forcing plaintiffs to "exist in an environment where danger is present in the illegal campers themselves and the diseases spread by the unsafe housing practices of the [defendants]," and by "[i]ntentionally refusing to end the threat." Am. Compl. ¶¶ 5, 7. In essence, plaintiffs bring three Eighth Amendment claims: one on behalf of those living in the camps, and two on behalf of themselves. However, these alleged facts are insufficient to establish that the law and facts clearly favor plaintiffs' position.

As for plaintiffs' first claim, defendants aptly point out that plaintiffs likely lack standing to bring this claim on behalf of unhoused individuals. Under Article III, a plaintiff must show: "(1) . . . an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, 528 U.S. at 180-81. Here plaintiffs' alleged injury is based on injuries allegedly experienced by the unhoused individuals living in the camps. Hardt has not alleged that he is living in a camp in these conditions. Similarly, though Whitish has indicated that he is presently unhoused, he has stated that he is living in an RV, not an encampment. Resp. to Defs.' Objs., ECF [31], at 1. Accordingly, neither Hardt...