United States District Court, D. Alaska
ORDER RE MOTION FOR PRELIMINARY INJUNCTION
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Self-represented
litigant Ben Latham initiated a civil rights action under 42
U.S.C. § 1983, Section 504 of the Rehabilitation Act,
and multiple provisions of the Americans with Disabilities
Act on September 24, 2019.[1] On October 2, 2019, he filed a
“Motion for Temporary Injunction Local Civil Rule 7.1
General Motion, ” along with a Motion for Expedited
Consideration, Affidavit, and a Certificate of
Service.[2]
Mr.
Latham requests the Court issue a temporary (preliminary)
injunction against (1) Mayor Ethan Berkowitz and all
employees of the Municipality of Anchorage, (2) Municipal
Attorney Rebecca Windt Pearson and all employees of the Civil
and Criminal Divisions of the Municipal Attorney's
Office, (3) Director of the Anchorage People Mover Jamie
Acton and all People Mover employees, (4) Municipality of
Anchorage Americans with Disabilities Act Coordinator Paul
Deery and all the employees of his office, (5) all Securitas
Security Services employees, and Anchorage Police Department
Police Chief Justin Doll and all employees of the Anchorage
Police Department. He seeks an order that would direct all
these individuals “to [not] follow, Stalk, nor harass
Plaintiff Ben Latham in violation of Harassment in the Second
degree AS. 11.61.120. and Stalking in the Second degree AS.
11.41.270.”[3]
Mr.
Latham alleges that he is currently in a dispute with
Anchorage Municipality People Mover administrators about
whether he qualifies for a discounted bus pass due to a
mental health disability.[4] In support of his request for a
temporary or preliminary injunction, Mr. Latham alleges that
on September 17, 2019, he was denied “a Disability
Reduced Fa[re] Application”; and on September 18, 2019,
received two harassing phone calls from Will Brown, a
Supervisor of the Anchorage People Mover, who would not take
his “verbal complaint” regarding being denied a
reduced fare application.[5]
Mr.
Latham further alleges that on September 29, 2019, he called
the Alaska State Troopers to report death threats made by
“Anchorage Community residents when I was at a[n] AA
meeting” and that three individuals followed him home
and had waited outside of his residence for three
days.[6] He alleges that he was referred to the
Anchorage Police Department and “was told by dispatch
that an Anchorage Police officer would come to my residen[ce]
to make a formal complaint and to make sure that I was
safe”; however, no officer responded.
Lastly,
Mr. Latham alleges that on September 30, 2019, he took the
People Mover Bus to Anchorage from Eagle River, where the bus
driver did not honor the People Mover policy of allowing
monthly bus pass users a one-way grace fare in order to renew
their pass and he had to pay the $2.00 fare.[7] Mr. Latham
alleges that the bus driver refused to provide him with his
name and badge number, which escalated into the driver
calling dispatch and requesting the Anchorage Police respond
to the bus stop at 5th and C Streets. Mr. Latham alleges that
the bus arrived before the police, so he “exited the
bus because I refused to be further harassed by the
Municipality Employees pursuant to AS 11.61.120 harassment in
the second degree.” Mr. Latham also alleges that when
he went to the Anchorage Municipality's ADA office to
supplement his previously filed ADA complaint, he was
followed by Securitas Security Service officers at the
direction of the Anchorage Police Department.
For
relief, Mr. Latham requests on order from this Court to
enjoin the defendants from following, stalking or harassing
Mr. Latham in violation of harassment in the second degree in
accordance with AS 11.61.120 and stalking in the second
degree in accordance with AS 11.41.270.
DISCUSSION
Mr.
Latham requests this Court enforce Alaska state criminal
statutes to enjoin contact and communication between him and
the defendants in this suit. The Court cannot provide Mr.
Latham the relief he seeks with a preliminary injunction in
federal court.
Plaintiffs
seeking preliminary injunctive relief must establish that
“(1) they are likely to succeed on the merits; (2) they
are likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in their
favor; and (4) a preliminary injunction is in the public
interest.”[8] Under this standard, “plaintiffs
must establish that irreparable harm is likely, not
just possible, in order to obtain a preliminary
injunction.”[9] In the Ninth Circuit, a sliding scale
analysis may be applied the remaining factors.[10] Injunctive
relief is an equitable remedy, and “[t]he essence of
equity jurisdiction is the power of the court to fashion a
remedy depending upon the necessities of the particular
case.”[11]
Mr.
Latham requests this Court enjoin the defendants under two
Alaska criminal laws-harassment[12] and
stalking.[13] Under the constitutional principle of
federalism, states are entrusted to enforce their own
criminal laws.[14] Only Alaska law enforcement can enforce
Alaska criminal laws, and only Alaska state courts can
preside over cases of Alaska criminal law. If Mr. Latham
believes that state criminal laws have been violated, he may
report such violations to Alaska law enforcement.
The
Court notes that Alaska state law also provides a civil
remedy for stalking through the use of stalking protective
orders. According to the Alaska Court System Self-Help
Center, stalking is described as:
A crime in which a person knowingly and repeatedly contacts
you or a family member without your consent, and that places
you in fear of your own death or physical injury or the death
or physical injury of a family member. You may be able to get
either a Stalking Protective Order or a Domestic Violence
Protective Order based on stalking, depending on the
relationship you have with the opposing party.[15]
The
Alaska Court System Self-Help Center provides a Stalking
Protective Order packet (CIV-750) for individuals to file
requests ...