Kabir v. City of Grove
| Decision Date | 28 September 2022 |
| Docket Number | 2:22-cv-01661-TLN-DB |
| Parties | FARYAL KABIR, THE GUARDIAN OF THE CANINE COMPANION ZEUS, Plaintiff, v. CITY OF ELK GROVE; BOBBIE SINGH-ALLEN, ACTING MAYOR OF ELK GROVE; AND DOES 1-10, Defendants. |
| Court | U.S. District Court — Eastern District of California |
This matter is before the Court on Plaintiff Faryal Kabir's (“Plaintiff) Motion for Temporary Restraining Order (“TRO”). (ECF No. 3.) Defendants City of Elk Grove (the “City”) and Mayor Bobbie-Singh Allen (collectively, “Defendants”) filed an opposition. (ECF No. 13.) Plaintiff filed a reply. (ECF No. 14.) For the reasons set forth below, Plaintiff's motion is DENIED. The Court also STAYS the instant action in part.
The instant motion seeks to enjoin Defendants from euthanizing her dog, Zeus. (ECF No. 3.) Plaintiff also seeks one of the following pending litigation: (1) enjoin Defendants to properly care for and shelter Zeus until further orders are given; (2) allow Rocket Dog Rescue to hold Zeus; or (3) return Zeus to Plaintiff.[1] (Id.)
This case arises out of the City designating Zeus as a dangerous animal and Plaintiff being accused of noncompliance with the City's dangerous animal restrictions. (ECF No. 11 at 2.) On May 16, 2022, there was an incident between Zeus and a man, which resulted in Zeus biting the man on both legs. (Id. at 4; ECF No. 13-2 at 2, 5-6.) Defendants assert the man was on the public sidewalk, and Plaintiff contends he was by the end of her driveway. (ECF No. 11 at 4; ECF No. 13 at 5.) The parties also dispute the extent of the man's injuries. (See ECF No. 11 at 4; ECF No. 13 at 5.) On May 25, 2022, the City designated Zeus as a dangerous animal, a designation Plaintiff sought to dispute. (ECF No. 11 at 5; ECF No. 13-2 at 8-10.)
On June 8, 2022, an administrative hearing regarding the dangerous animal designation was held via Zoom. (ECF No. 11 at 5; ECF No. 13-2 at 16.) Plaintiff contends she attempted to attend the hearing, but she could not attend due to technical issues. (ECF No. 11 at 5.) Plaintiff then phoned the hearing officer, but she was told she could not attend the hearing via phone. (Id.) The hearing continued in Plaintiff's absence and Plaintiff was unable to assert a provocation defense for Zeus. (Id.)
On June 15, 2022, the hearing officer issued an order finding the City had proven by a preponderance of the evidence that Zeus is a dangerous animal within the meaning given in the Elk Grove Municipal Code (“EGMC”). (ECF No. 13-2 at 16-21.) The order provided that Plaintiff had 30 days from the issuance of a dangerous dog designation to comply with all restrictions regarding Zeus. (Id. at 19.) Plaintiff alleges she provided evidence of compliance but before the 30-day period to comply elapsed the City's animal control and police seized Zeus. (ECF No. 11 at 5.) Plaintiff alleges animal control demanded Plaintiff put Zeus in their truck. (Id. at 5-6.)
A video recording from the seizure shows Plaintiff attempting to place a leashed and unmuzzled Zeus in the back of the City's animal control truck.[2] Elk Grove Police Dep't Dangerous Dog Case, YouTube (Sept. 22, 2022), https://www.youtube.com/watch?v=ErQDkFJzZMQ. At that time, the City's police and animal control officers were several feet behind the truck. Id. As Plaintiff and Zeus were nearing the rear of the truck, Zeus barked and began running at the officers while continuing to bark. Id. The officers backed up, but Zeus continued to advance toward them despite Plaintiff holding onto his leash. Id. Zeus then bit one of the officers on his left leg causing a tear in the officer's pant leg. Id. Plaintiff then placed Zeus in the back of truck. Id. One of the officers asked, “You have broken skin?” to the officer who was bitten. Id. After inspecting his leg, the officer who was bitten replied, “Yeah.” Id. Plaintiff alleges a criminal misdemeanor change was placed against her on July 15, 2022, for failure to comply pursuant to the EGMC. (ECF No. 11 at 8.)
On August 15, 2022, a second administrative hearing took place before a different hearing officer. (Id. at 6; ECF No. 13-2 at 30.) After the hearing, Plaintiff alleges the hearing officer asked for post-hearing objections, which the City submitted along with video evidence. (ECF No. 11 at 6.) Plaintiff alleges she submitted proof of compliance after the hearing, but it was not admitted. (Id.) Plaintiff further contends the City made an ex parte communication with the hearing officer after the hearing instead of using the correct procedure. (Id.)
On September 2, 2022, an order from the second hearing was issued. (ECF No. 13-1 at 52-61.) The order found Zeus had violated two provisions of the EGMC, and therefore, Zeus was to be humanely euthanized. (Id. at 60.) The order also provided a five-day period to appeal the order, and that any appeal would be trial de novo. (Id. at 61.) The hearing officer later issued an amended order changing the right to judicial review. (ECF No. 13-2 at 30 n.1.) The amended order stated a party could seek judicial review by filing a petition for review with the Sacramento County Superior Court. (Id. at 39.)
On August 16, 2022, Plaintiff filed a petition for a writ of administrative mandate in the Sacramento County Superior Court, case no. 34-2022-80003929 (the “First State Court Action”).[3](Kabir v. City of Elk Grove, 34-2022-80003929-CU-WM-GDS (Sacramento Sup. Ct. 2022).) On September 13, 2022, Plaintiff filed her first amended verified petition for writ of mandate (the “Amended Writ Petition”). (ECF No. 13-1 at 5.) The Amended Writ Petition alleges: (1) federal and state procedural due process violations stemming from the administrative hearings on June 8th and August 15th; (2) portions of the EGMC relating to dangerous dogs are in conflict with California law and void under Article XI, § 7 of the California Constitution; and (3) violation of the “takings” provisions of the United States Constitution and California Constitution. (See id. at 5-23.)
Also on September 13, 2022, Plaintiff filed an emergency ex parte motion to stay Zeus' euthanasia in the First State Court Action. (Id. at 26.) On September 14, 2022, the City filed its opposition to Plaintiff's ex parte motion. (Id. at 38.) That same day, the superior court issued a minute order denying Plaintiff's ex parte motion. (Id. at 49.) The minute order states, “Based upon the information presented, the Court denies Petitioner's Application.” (Id.) However, the First State Court Action's docket shows the case remains pending and judgment has not been entered. (Kabir v. City of Elk Grove, 34-2022-80003929-CU-WM-GDS (Sacramento Sup. Ct. 2022).)
On September 6, 2022, Plaintiff appealed the order from the August 15th administrative hearing to the Sacramento County Superior Court, case no. 34-2022-00326595 (the “Second State Court Action”). (ECF No. 13-1 at 51; Kabir v. City of Elk Grove Animal Servs., 34-2022-00326595-CL-PT-GDS (Sacramento Sup. Ct. 2022).) On September 21, 2022, the superior court issued an order granting the City's motion to dismiss Plaintiff's request for appeal by trial de novo.
(ECF No. 13-1 at 117-118.) The Second State Court Action's docket reflects this case has been dismissed. (See Kabir v. City of Elk Grove Animal Servs., 34-2022-00326595-CL-PT-GDS (Sacramento Sup. Ct. 2022).)
On September 21, 2022, Plaintiff initiated the instant action and filed her complaint. (ECF No. 1.) Also on September 21, 2022, Plaintiff filed the instant motion for TRO. (ECF No. 3.) On September 22, 2022, Plaintiff filed her FAC. (ECF No. 11.) The FAC alleges six causes of action: (1) 42 U.S.C. § 1983 for Fourth, Fifth, and Fourteenth Amendment violations; (2) 42 U.S.C. § 1983 for procedural due process violations; (3) a constitutional challenge to portions of the EGMC regulating dangerous animals; (4) a due process claim concerning the burden of proof; (5) declaratory relief; and (6) violation of the Article XI, Section 7 of the California Constitution. (Id.) On September 22, 2022, the Court issued an order enjoining Defendants from euthanizing Zeus until September 28, 2022 in order to preserve the status quo until Defendants had a chance to respond to the motion for TRO. (ECF No. 12.) On September 26, 2022, Defendants filed their opposition to the motion. (ECF No. 13.) On September 27, 2022, Plaintiff filed her reply. (ECF No. 14.)
A TRO is an extraordinary remedy. The purpose of a TRO is to preserve the status quo pending a fuller hearing. See Fed.R.Civ.P. 65. In general, “[t]emporary restraining orders are governed by the same standard applicable to preliminary injunctions.” Aiello v. One West Bank, No. 2:10-cv-0227-GEB-EFB, 2010 WL 406092, at *1 (E.D. Cal. Jan. 29, 2010) (internal citations omitted); see also E.D. Cal. L.R. 231(a).
Injunctive relief 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) (citingMazurekv. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also Costa Mesa City Emps. Ass'n v. City of Costa Mesa, 209 Cal.App.4th 298, 305 (2012) (); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) ().
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