United States District Court, D. Oregon
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE.
Dennis Russell Hooper moves for Temporary Injunction seeking
a stay in state eviction proceedings to prevent the disposal
or removal of plaintiff's personal property. ECF No. 15.
The Motion is accompanied by Plaintiff's Memorandum (ECF
No. 16), Plaintiff's Declaration (ECF No. 17), and
Amended Complaint (ECF No. 18). Because Plaintiff has not
shown a likelihood of success on the merits, Plaintiff's
motion seeking temporary injunction (ECF No. 15) is DENIED.
limited purpose of Plaintiff's Motion and without
reaching the ultimate merits of the amended complaint, the
Court accepts the asserted facts at true. Plaintiff is or
until recently was a residential tenant of Coos-Curry Housing
Authority. Amend. Compl., ECF No. 18. On February 22, 2017,
plaintiff was served an eviction summons with the cause
listed for eviction to be a lease violation. Pl.'s Memo
1-2, ECF No. 16. The Curry County Circuit Court, State of
Oregon held a hearing on March 1, 2017 under the case number
17LT02905. The Circuit Court granted default judgment in
Coos-Curry Housing Authority's favor. Plaintiff states he
appeared by telephone, but had incorrectly e-filed his answer
and fee waiver. A Notice of Restitution was issued granting
defendant Coos-Curry Housing Authority possession. Defendant
then gave Plaintiff until April 4, 2017 to remove all of his
personal property from the rental unit. Plaintiff has
appealed to the Oregon Court of Appeals.
argues he is unable to retrieve his personal property,
because he is homeless and physically disabled. Pl.'s
Memo 2, ECF No. 16. The personal property at the apartment
unit consists of many boxes of records and legal documents in
support of his claims against defendant, a secondary
wheelchair, wheelchair parts and accessories, durable medical
equipment, i.e. shower bench, leg braces, various
medications, some of which require refrigeration, and
personal items such as clothes. Plaintiff has paid rent for
the month of March 2017. Plaintiff declares his income is
limited to SSI in the amount of $516.00, he is homeless and
unable to afford permanent shelter; and has no place to store
his legal or personal records. Pl.'s Decl. 1, ECF No. 17.
alleges the eviction constitutes retaliation against
plaintiff for filing this lawsuit in January 2017. Pl.'s
Mot., ECF No. 15; Amend. Compl. 20-22, ECF No. 18.
Plaintiff's Amended Complaint outlines the timeline of
facts. On November 29, 2016, Coos-Curry Housing Authority
conducted an annual inspection of Plaintiff's residence.
Amend. Compl. 20-22, ECF No. 18. On December 21, 2016,
Housing Authority notified Plaintiff there were
“certain failed items that needed to be addressed by
the resident” and that Plaintiff's residence would
be re-inspected on January 19, 2017. Failed items include
covering the window with a sheet and using a type of heat
source to heat a room that is not allowed. The Amended
Complaint reads that “Plaintiff elected not to comply
with the request” believing that Defendant's
requests were not mandatory.
January 18, 2017, Plaintiff told Defendant Housing Authority
that they would not be allowed to re-inspect the
“failed items.” Amend. Compl. 21-22, ECF No. 18.
By letter dated January 19, 2017, Housing Authority stated
that Plaintiff's tenancy would be cancelled and that if
no action to remedy the violation is taken, the eviction
procedure will continue forward. Plaintiff underwent the
Housing Authority's grievance procedure to aggrieve the
notice of cancellation. Plaintiff's grievance was
ultimately denied and a Residential Eviction Complaint was
filed on February 21, 2017.
seeking a preliminary injunction must establish that it is
likely to succeed on the merits, that it is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in its favor, and that an
injunction is in the public interest. Winter v. Natural
Resources Defense Council, Inc., 129 S.Ct. 365, 374
(2008). The mere possibility of irreparable harm is not
enough. Rather, the plaintiff must establish such harm is
likely. Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1131 (9th Cir. 2011). The standards for
issuing a temporary restraining order are similar to those
required for a preliminary injunction. Lockheed
Missile & Space Co., Inc. v. Hughes Aircraft
Co., 887 F.Supp. 1320, 1323 (N.D. Ca. 1995). The
court's decision on a motion for a preliminary injunction
is not a ruling on the merits. See Sierra On-Line, Inc.
v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.
Plaintiffs have shown a likelihood of success on the merits
is a threshold inquiry. Ass'n des Eleveurs de Canards
et d'Oies du Quebec v. Harris, 729 F.3d 937, 944
(9th Cir. 2013). I find here that there is not a likelihood
of success on the merit. First, the timeline of dates does
not support Plaintiff's claim for retaliation. While the
initial complaint was filed January 9, 2017, the process that
led to eviction began on November 29, 2016 from a required
annual inspection which has occurred every year since
Plaintiff had first moved into the unit in 2012. Defendant
discovered Plaintiff's non-compliance with Housing
Authority's policies during the November 29, 2016
inspection, six weeks prior the filing of this lawsuit.
Plaintiff's Amended Complaint states clearly that he
chose not to address the “failed items” and
refused to allow Defendant entry into his rental unit to
conduct a re-inspection in violation of the lease. A lease
violation is a valid, prima facie reason to evict Plaintiff
irrespective of any motivation to retaliate.
Plaintiff has not shown a likelihood of success on the
merits, Plaintiff's motion seeking temporary ...