Latham v. Anchorage Municipality People Mover

          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 ...