Stokes v. City of Visalia
| Decision Date | 11 December 2017 |
| Docket Number | No. 1:17-cv-01350-DAD-SAB,1:17-cv-01350-DAD-SAB |
| Court | U.S. District Court — Eastern District of California |
| Parties | KIMBERLY RENEE STOKES, Plaintiff, v. CITY OF VISALIA, Defendant. |
ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
This matter is before the court on plaintiff's motions for a temporary restraining order (Doc. No. 2) and a preliminary injunction (Doc. No. 12). The motions came on for hearing on November 21, 2017. Attorney Marla A. Tauscher appeared at the hearing telephonically on behalf of plaintiff Kimberly Renee Stokes. Attorney Leonard C. Herr appeared on behalf of defendant City of Visalia. Having reviewed the parties' briefing and heard arguments, and for the reasons that follow, plaintiff's motion for a temporary restraining order and motion for a preliminary injunction will be denied.
In her complaint plaintiff alleges as follows. Plaintiff lives in the City of Visalia and is the owner of three dogs, one of which is named Armani whose status is at issue in this action. (Doc. No. 1 ("Compl.") at ¶¶ 11-12.) On the morning of January 31, 2017, plaintiff's neighbor Stephen Stewart ("Stewart") called Visalia Animal Control complaining that dogs belonging to plaintiff had attacked his dogs. (Id. at ¶ 14.) Animal Control officer Murad Bayless ("Bayless") went to Stewart's residence the same day and made a report documenting the incident, which included taking the statements of several eyewitnesses. (Id. at ¶ 15.) Plaintiff, who is a nurse and had been working the night shift the previous evening, was asleep in her home at the time of the incident. (Id. at ¶ 16.) While plaintiff was sleeping, two of her dogs—Armani and Mademoiselle—had found a weak plank in the fencing surrounding plaintiff's backyard and crawled out. (Id. at ¶ 17.) Plaintiff's dogs had never escaped her yard before, and have not done so since. (Id.)
After being awoken, plaintiff went outside and found her dog Mademoiselle sitting in the middle of the street. (Id. at ¶¶ 18-19.) Plaintiff then observed Armani sitting in Stewart's driveway and, upon approaching, saw Stewart and noticed that his hand was bleeding. (Id. at ¶ 22.) She then returned home with both of her dogs. (Id.) Shortly thereafter, Bayless went to plaintiff's house and seized both Armani and Mademoiselle. (Id. at ¶ 23.) Armani has remained at the Visalia Animal Control facility ever since. (Id.)
Upon seizing plaintiff's dogs, Bayless provided plaintiff with several documents, which he collectively referred to as a "vicious hearing packet." (Id. at ¶ 24.) One of these documents was entitled "Owner's Request for a Hearing," which stated in relevant part that plaintiff would be required to pay $350 in order to receive an administrative hearing to attempt to secure the return of her dogs. (Id. at ¶¶ 24, 25.) The form also provided that her failure to pay the fee would result in her request for hearing being considered invalid. (Id. at ¶ 25.)
An administrative hearing was held on February 13, 2017. (Id. at ¶ 28.) Plaintiff and two witnesses appeared at that time and attorney Thomas E. Hornburg ("Hornburg"), who was hired by defendant, presided over the hearing. (Id. at ¶¶ 28, 29.) At the outset of the hearing, Hornburg informed the participants that both Armani and Mademoiselle had been deemed "vicious" by Animal Control, and that the burden was on plaintiff to establish that her dogs were not vicious. (Id. at ¶ 31.) He also informed the participants that the hearing would be conducted in an informal manner, and that he could consider any evidence he deemed relevant to the issues athand, including hearsay evidence. (Id.) He also informed the participants that there would be no cross-examination of witnesses.1 (Id.) Plaintiff and Stewart then recounted their recollections of the events at the hearing. (See id. at ¶¶ 33-54.)
On February 14, 2017, Hornburg issued a written decision in which he concluded that Mademoiselle was not vicious and should be returned to plaintiff, but that Armani was vicious and should be euthanized. (Id. at ¶¶ 56-57.) Plaintiff then filed a petition for a writ of mandate in the Tulare County Superior Court. (Id. at ¶ 60.) In May 2017, on the advice of her then-counsel, plaintiff agreed to dismiss that petition in exchange for an agreement to have Armani evaluated by professional dog trainers. (Id. at ¶¶ 62-64.) Two behavior assessments were then submitted to Hornburg, both of which concluded that Armani was not aggressive. (Id. at ¶ 65; Doc. No. 17-1 at 101-106.) Defendants, in turn, submitted a declaration by Animal Control supervisor Ivy Ruiz stating that she had observed aggressive behavior by Armani. (Compl. at ¶ 66; Doc. No. 17-1 at 96-97.) Plaintiff alleges that it had not been her desire to dismiss the petition for a writ of mandate, and that as a result she terminated her prior counsel who had advised her to do so. (Compl. at ¶ 68.) Plaintiff then secured a new attorney who filed a motion to set aside the dismissal, which was granted, and plaintiff's petition for a writ of mandate was reinstated in early July 2017. (Id. at ¶ 70.) On September 28, 2017, the Tulare County Superior Court denied the petition.
In her complaint, plaintiff asserts that her due process rights under 42 U.S.C. § 1983 have been violated, in several respects. First, she claims that she received inadequate notice regarding the February 13, 2017 administrative hearing. (Id. at ¶ 74.) Second, plaintiff claims that the burden of proof was unlawfully shifted upon her to affirmatively prove that her dogs were not vicious. (Id. at ¶¶ 92-99.) Third, plaintiff argues that she was unlawfully prohibited from cross-examining witnesses at the administrative hearing. (Id. at ¶¶ 100-07.) Fourth, plaintiff argues that Hornburg was biased in favor of defendant at the hearing. (Id. at ¶¶ 108-16.) Finally,plaintiff claims that Hornburg and defendant engaged in unlawful ex parte communication prior to the hearing. (Id. at ¶¶ 117-20.) Plaintiff seeks monetary damages and injunctive relief. (Id. at ¶¶ 121-29.)
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). The standard for issuing a temporary restraining order is "substantially identical" to the standard for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). "The proper legal standard for preliminary injunctive relief requires a party to demonstrate 'that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (); Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). A plaintiff seeking a preliminary injunction must make a showing on all four of these prongs. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). The Ninth Circuit has also held that "[a] preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." Id. at 1134-35 (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)).2 The party seeking the injunction bears the burden of proving these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citation omitted) ("A plaintiff must domore than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief").
As noted, plaintiff must make a sufficient showing on all four prongs of the Winter test in order to be entitled to a preliminary injunction. All. for the Wild Rockies, 632 F.3d at 1135. Below, the court examines each prong in turn.
First, plaintiff bears the burden of demonstrating that she is likely to succeed on the merits. At a minimum, this requires plaintiff to demonstrate that, on at least one of her claims, there are "serious questions" going to the merits of the claim. Id.
Plaintiff first asserts that she received inadequate notice with respect to the administrative hearing. In order to pass constitutional muster, the government must provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832 F.3d 1154, 1158 (9th Cir. 2016) (internal quotation marks and citations omitted). Plaintiff claims that notice of the hearing here was inadequate, in that she "had not received any notice that Armani had been deemed dangerous or vicious or that she would have to present evidence to overcome the presumption of his 'guilt.'" (Doc. No. 12 at 6.) Defendant asserts that this is incorrect as a factual matter and that, in any event, plaintiff has waived this argument.
In support of its position, defendant submits a declaration signed by Bayless. (Doc. No. 17-3 ("Bayless Decl.").) Bayless avers that upon taking Mademoiselle and Armani into custody following the incident, he notified plaintiff "that her dogs had been declared dangerous/vicious under the...
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