O'Rourke v. VanHeel

• Decision Date: 03 May 2022
• Docket Number: 2:22-cv-00689-RFB-DJA
• Parties: Kenneth O'Rourke, et. al., Plaintiffs, v. Kim VanHeel, et. al., Defendants.
• Court: U.S. District Court — District of Nevada

Kenneth O'Rourke, et. al., Plaintiffs, v. Kim VanHeel, et. al., Defendants.

No. 2:22-cv-00689-RFB-DJA

United States District Court, D. Nevada

May 3, 2022

TEMPORARY RESTRAINING ORDER

RICHARDF. BOULWARE, II, UNITED STATES DISTRICT JUDGE

Before the court is pro se Plaintiffs Kenneth O'Rourke, Charleen Kurr-O'Rourke, and Kassidy O'Rourke's motion for preliminary injunction. ECF No. 2. This case was initiated on April 27, 2022. ECF No. 1. Plaintiffs bring a single Fair Housing Act claim against Defendants Kim Van Heel, Palm Hills HOA Board, Phoebe Fricke, Trish Hall, Joseph Yakubik, Joshua Dana, and Written Warfare Investments LLC-63 Blaven. Pro se pleadings are subject to liberal construction by the Court. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Given the nature and urgency of the relief requested in this case, the Court construes the Plaintiffs' motion for preliminary injunction as a motion for a temporary restraining order without notice to the adverse party. The Court will hereafter evaluate the motion accordingly.

A temporary restraining order may be issued without notice to the adverse party only if the moving party: (1) provides a sworn statement clearly demonstrating “that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition ” and (2) sets forth the efforts made to notify the opposing party and why notice should not be required. Fed.R.Civ.P. 65(b)(1). TROs issued without notice “are no doubt necessary in certain circumstances, but under federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.” Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (quoting Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974)). The analysis for a temporary restraining order is “substantially identical” to that of a preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush &amp Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). To obtain a preliminary injunction, a plaintiff must establish four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

The Court finds that, based on the facts alleged in the Complaint and Motion for Temporary Restraining Order, “serious questions going to the merits” are raised by the motion. Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-1132 (9th Cir. 2011); see also Clear Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003). For reasonable accommodation claims under the Fair Housing Act (“FHA”), unlawful discrimination includes a housing provider's “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B) (2009). A plaintiff must prove five elements to prevail on an FHA reasonable accommodation claim under § 3604(f)(3)(B): “(1) that the plaintiff or his associate is handicapped within the meaning of 42 U.S.C. § 3602(h) (“‘Handicap' means, with respect to a person (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment....”); (2) that the defendant knew or should reasonably be expected to know of the handicap; (3) that accommodation of the handicap may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; (4) that the accommodation is reasonable; and (5) that defendant refused to make the requested accommodation.” Dubois v. Ass'n of Apartment Owners of Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006) (citations omitted), cert. denied, 549 U.S. 1216 (2007); see also Sanzaro v. Ardiente Homeowners Ass'n, LLC, 364 F.Supp.3d 1158, 1163 (D. Nev. 2019). The Court finds that Plaintiffs' allegations provide a sufficient basis for a valid FHA claim. Plaintiffs allege that they have a handicap within the meaning of 42 U.S.C. § 3602(h) by alleging that Kenneth O'Rourke has a hearing disability and PTSD and that Kassidy O'Rourke has Type 1 Diabetes. Plaintiffs have alleged that retention of specifically designated service dogs is necessary to afford them an equal opportunity to use and enjoy their property. Plaintiffs have alleged that the accommodation is reasonable, and that Defendants have refused to make the accommodation by continually charging them “Failure to Provide Proof of Service Dog” fines. These allegations indicate that there are serious questions going to the merits of Plaintiffs' claim. Until these issues are resolved, the Court finds that it must issue a temporary restraining order to preserve the status quo. See generally Barahona-Gomez v. Reno, 167 F.3d 1228, 1234 (9th Cir. 1999).

It is well-established that the loss of an interest in real property constitutes an irreparable injury. Park Vill Apt. Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150, 1159 (9th Cir. 2011). Furthermore, the Ninth Circuit has found that individuals are likely to suffer irreparable harm absent preliminary relief when facing eviction. Id. Here, the Court finds that Plaintiffs will suffer irreparable harm if an injunction does not issue. The balance of equities weights in favor of Plaintiffs because the TRO staying...