United States District Court, D. Alaska
ORDER DIRECTING SERVICE AND RESPONSE
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE.
On
September 24, 2019, self-represented litigant Ben Latham
filed a civil rights complaint along with a civil cover sheet
and a financial affidavit.[1]Subsequently, Mr. Latham filed an
Application to Waive the Filing Fee.[2]
On
November 15, 2019, Mr. Latham filed a Motion to Amend
Complaint along with a First Amended Complaint and a Motion
for the U.S. Marshals to Serve the Summons and the First
Amended Complaint to All Parties and Waiver of the Cost for
the U.S. Marshals.[3] Mr. Latham alleges a civil rights action
under 42 U.S.C. § 1983, Section 504 of the
Rehabilitation Act, multiple provisions of the Americans with
Disabilities Act, and several other statutory and regulatory
provisions of federal law.[4] Mr. Latham alleges that the
Municipality of Anchorage's People Mover bus service and
three individuals-Director Jamie Acton, Supervisor Will
Brown, and Disability Supervisor Sandy James-have violated
his rights to due process and equal protection. Broadly, Mr.
Latham alleges that he has a disability and is being denied
access to public services, specifically, the Half Fare
Disability Bus Pass program. For relief, Mr. Latham requests
a declaratory judgment, compensatory and punitive damages,
and injunctive relief.
Subsequently,
Mr. Latham filed two motions seeking injunctive
relief.[5] In one motion, Mr. Latham seeks a
preliminary injunction directing the Municipality of
Anchorage to provide him with a Half Fare program card for
the People Mover bus service.[6] In the second motion, Mr. Latham
seeks a preliminary injunction directing the Municipality of
Anchorage to provide People Mover bus service between Eagle
River and Anchorage, Alaska on the weekends.[7] Mr. Latham
requests a hearing on each of the motions.[8]
I.
First Amended Complaint
Mr.
Latham alleges that he is a person with a disability, and
broadly, he is being denied access to public services.
Liberally construed, Mr. Latham has sufficiently pled a
plausible claim under the Americans with Disabilities Act and
potentially other civil rights statutes. Mr. Latham's
civil rights action may proceed. The Court has jurisdiction
under 28 U.S.C. § 1343.
Accordingly,
the Motion to Amend at Docket 11, the Application to Waive
the Filing Fee at Docket 5, and the Motion for the U.S.
Marshals to Serve the Summons and the First Amended Complaint
at Docket 13 will all be granted. The case caption is amended
as set forth on page one of this order to add the Anchorage
Municipality as the first defendant.
II.
Motions for Preliminary Injunction
Mr.
Latham has filed two motions for temporary (preliminary)
injunctive relief. 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.”[9] Under this standard, “plaintiffs
must establish that irreparable harm is likely, not
just possible, in order to obtain a preliminary
injunction.”[10] In the Ninth Circuit, a sliding scale
analysis may be applied to the remaining
factors.[11] 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.”[12]
Moreover,
Rule 65 of the Federal Rules of Civil Procedure governs the
issuance of injunctive orders. Generally, a court cannot
issue preliminary injunctions without notice being given to
the adverse party.[13] A court may issue a temporary injunction
without notice to the adverse party only if: (1)
“specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition”; and (2) “the
movant's attorney certifies in writing” what
efforts, if any, were made to give notice or the reasons why
notice should not be required.
The
Court notes that since the inception of this action, Mr.
Latham has filed three separate motions for preliminary
injunctive relief. The pending motions at Dockets 16 and 19
are his second and third of such filings, respectively.
a.
Motion for Preliminary Injunction at Docket 16
At
Docket 16, Mr. Latham requests the Court issue a preliminary
injunction directing the Municipality of Anchorage to provide
him with a Half Fare program card for the People Mover
service. Mr. Latham alleges that the Anchorage Municipality
People Mover Bus Reduced Fare Application is problematic.
Specifically, he alleges that the question “Does
condition affect their ability to ride the bus?” is
vague, ambiguous, and misleading, because his doctor has
previously marked “No.”[14] He further alleges that
Defendant Brown has “stated that a Doctor has to mark
yes to be permitted a Disability bus pass.” Mr. Latham
alleges he has been denied a disability bus pass for two
years and attaches the instruction sheet discussing
eligibility as an exhibit.
Mr.
Latham has not shown that irreparable harm is likely if he is
not immediately granted a half fare bus pass, particularly as
Mr. Latham continues to have access to People Mover services
for full price during the pendency of this case. Furthermore,
Mr. Latham has not shown that he is likely to succeed on the
merits of his civil rights and ADA claims against the
Municipality and municipal employees. Rather, he alleges that
his doctor has not provided the correct information required
to establish his eligibility. The balance of equities does
not tip in Mr. Latham's favor to warrant an immediate
change in the status quo. Additionally, on the facts, there
is no showing the requested preliminary injunctive relief is
in the public interest. Therefore, Mr. Latham's motion
for preliminary injunctive relief at Docket 16 must be
denied. Accordingly, Mr. Latham's companion motion for a
hearing on the matter at Docket 18 is denied as moot.
b.
Motion for Preliminary Injunction at Docket 19
At
Docket 19, Mr. Latham requests the Court issue a temporary
(preliminary) inunction directing the Municipality of
Anchorage to provide People Mover bus service between Eagle
River and Anchorage, Alaska on the weekends. Mr. Latham
alleges he “is indigent and in Therapeutic Court and
must provide urinalysis on the Weekends at the Court House in
Anchorage and the Anchorage Municipality People Mover Bus
does not run on the weekends” between Eagle River and
Anchorage.[15] Mr. Latham alleges that this lack of
service “is denying Plaintiff Ben Latham access to the
Courts on the Weekends.”[16]
Mr.
Latham has not demonstrated that he is likely to prevail on
the merits of this claim and obtain an order directing the
Municipality and the municipal employees he has named as
defendants to provide him with weekend bus service between
Eagle River and Anchorage. Mr. Latham alleges that the lack
of bus service denies him access to his weekend court
obligations. However, his obligations to a court program do
not bestow a de facto constitutional right to compel
government services be provided to him.[17] Therefore,
Mr. Latham's motion for preliminary injunctive relief at
Docket 19 must be denied. Accordingly, Mr. Latham's
companion motion for a hearing on the matter at Docket 21 is
denied as moot.
IT
IS THEREFORE ORDERED:
1. The
Motion to Amend Complaint at Docket 11 is GRANTED. The First
Amended Complaint has been screened according to 28 U.S.C.
§ 1915(e)(2)(B), and, liberally construed, may state a
claim for relief under federal law.
2. The
Application to Waive the Filing Fee at Docket 5 is GRANTED.
3. The
Motion for the U.S. Marshals to Serve the Summons and the
First Amended Complaint to All Parties and Waiver of the Cost
at Docket 13 is GRANTED, to the extent that Mr. Latham is not
required at this time to pay the costs incurred by the U.S.
Marshal Service in serving the summons and complaint on
defendants. The Court's finding that Mr. Latham may
proceed in forma pauperis in this action entitles
him to service of process by the U.S. Marshal Service,
pursuant to 28 U.S.C. § 1915(d). The U.S. Marshal
Service fee may be taxed as costs in this case, pursuant to
28 U.S.C. §§ 1920(1) and 1921(a)(1)(A) and included
in the judgment.
4. The
Motion for a Temporary Injunction at Docket 16 is DENIED.
5. The
Motion for a Hearing on the Motion for a Temporary Injunction
at Docket 18 is DENIED AS MOOT.
6. The
Motion for a Temporary Injunction at Docket 19 is DENIED.
7. The
Motion for a Hearing on the Motion for a Temporary Injunction
at Docket 21 is DENIED AS MOOT.
8. Mr.
Latham shall proceed with the steps outlined in this order to
ensure that service of process of the summons and complaint
on each of the defendants is completed no later than
ninety (90) days from the date of this
order.[18]All service shall be made in a manner
authorized by Rule 4 of the Federal Rules of Civil Procedure.
9. The
Clerk of Court shall provide four summons forms to Mr.
Latham, as well as four U.S. Marshals Service Process ...