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Hooper v. City of Seattle

United States District Court, W.D. Washington, Seattle

October 4, 2017

LISA HOOPER, et al., Plaintiffs,
CITY OF SEATTLE, et al., Defendants.




         This matter is before the Court on Plaintiffs' Motion for Class Certification (Dkt. #2) and Plaintiffs' Motion for Preliminary Injunction (Dkt. #93). Oral argument on this matter was heard on September 7, 2017. Having considered the parties' oral and written arguments, along with the remainder of the record, the Court, for the reasons stated herein, DENIES Plaintiffs' motions.


         Plaintiffs' suit stems from Defendant City of Seattle's (the “City”), Defendant Washington State Department of Transportation's (“WSDOT”), and Defendant Roger Millar's (collectively “Defendants”) enforcement of rules and guidelines that authorize the removal of unauthorized encampments from City-owned and Washington State-owned property.[1] See Dkt. #87 ¶¶ 3, 5, 14-31, 90-96. In 2008, the City enacted rules, the Multi-Departmental Administrative Rules 08-01 (“MDAR 08-01”), to establish, in part, standard procedures for the removal of unauthorized encampments, camping equipment, and personal property left on City-owned property. See id. ¶ 97; also Dkt. #33, Ex. A at 8. That same year, WSDOT also adopted guidelines, entitled WSDOT's Guidelines to Address Illegal Encampments within State Right of Way (“WSDOT Guidelines”), establishing similar removal procedures for unauthorized encampments. See Dkts. #87 ¶ 97 and #33, Ex. B.

         When this suit was filed on January 19, 2017, the MDAR 08-01 were still in effect. See Dkt. #33, Ex. A. At the time, Plaintiffs' putative class action alleged the MDAR 08-01 and WSDOT Guidelines were unconstitutional on their face, and as applied, because exceptions and exclusions within both policies rendered their notice and storage provisions meaningless. Dkt. #1 ¶¶ 65-90. Specifically, the named individual plaintiffs alleged they were victims of Defendants' ongoing policy and practice of seizing and destroying the property of unhoused people living outside without adequate notice, an opportunity to be heard, or a meaningful way for them to reclaim any of their undestroyed property. Id. ¶¶ 1, 5. Plaintiffs alleged Defendants' policies, and actual encampment removal practices, violated Plaintiffs' federal and state constitutional rights. Id. ¶¶ 91-137, 158-65.

         On January 31, 2017, the City proposed two new rules to modify the MDAR 08-01. Dkt. #87 ¶ 123; also Dkt. #33, Exs. C and D. The Finance and Administrative Services Encampment Rule 17-01 (“Proposed FAS 17-01”) proposed a uniform set of rules and procedures for removing encampments on City property, while the Multi-Departmental Administrative Rules (“Proposed MDAR 17-01”) proposed a uniform set of rules and procedures for addressing encampments on City property. See id.

         On February 6, 2017, Plaintiffs moved for a temporary restraining order (“TRO”). Dkt. #23. A TRO hearing was scheduled on February 13, 2017; Plaintiffs' TRO motion was subsequently denied because Plaintiffs did not demonstrate a likelihood of success on the merits or irreparable harm. Dkt. #65 at 14-17. Following this denial, Plaintiffs amended their initial Complaint. See Dkt. #73. Subsequently, after a public comment period and revisions, the City's MDAR 08-01 was superseded by the final versions of the Proposed FAS 17-01 and the Proposed MDAR 17-01. See Dkt. #94, Ex. C at 2 and Ex. D at 2. On April 3, 2017, the FAS 17-01 and MDAR 17-01 (collectively the “Updated Encampment Rules”) went into effect. See id. Plaintiffs filed a Second Amended Complaint on May 23, 2017. Dkt. #87.

         Plaintiffs' Second Amended Complaint raises facial and as-applied challenges to the City's Updated Encampment Rules and the WSDOT Guidelines.[2] Id. ¶¶ 102, 108-109, 111- 115, 124-138. Plaintiffs claim Updated Encampment Rule exceptions governing “obstructions” and “immediate hazards” allow the City to remove any unauthorized encampment without notice. Id. ¶¶ 126-130. Plaintiffs also claim the City's creation of “Emphasis Areas” force unhoused persons to live in dangerous areas or leave them subject to immediate removal. Id. ¶¶ 131-134. Plaintiffs also assert the Updated Encampment Rules do not contain a prior MDAR 08-01 requirement that allowed unhoused persons to return to an encampment location to pack up their belongings, and thus fail to provide an opportunity for unhoused persons to contest the seizure and destruction of their property. Id. ¶ 135. Finally, Plaintiffs contend the Updated Encampment Rules do not require training for City personnel, and they claim the enforcement of the rules remains discretionary. See id. ¶¶ 136-37. Plaintiffs likewise claim that exceptions and exclusions to the WSDOT Guidelines “exempt many, if not most, people living outside from even the most minimal of notice protections, ” and they claim the WSDOT Guidelines lack provisions to ensure pre- and post-deprivation due process. Id. ¶¶ 102, 108, 116.

         Aside from their facial challenges, Plaintiffs also claim Defendants' actual cleanup practices are unconstitutional. Dkt. #87 ¶¶ 139-188. Plaintiffs' Second Amended Complaint identifies eight practices that allegedly result in the inadequate, inconsistent, inaccurate, inaccessible, and/or misleading provision of notice. Id. ¶¶ 144-157. These practices include Defendants' alleged provision of notice less than 72-hours before a cleanup, posting notice in inconspicuous areas, notices that fail to specify where a cleanup will occur, notices that do not reflect the date a cleanup actually occurs, and notices that are inaccessible to unhoused persons who cannot read written English.

         Regarding the seizure of property, Plaintiffs' Second Amended Complaint identifies six practices they claim are unconstitutional. See id. ¶¶ 162-173. These practices include Defendants alleged use of heavy equipment machinery to summarily seize and destroy the property of unhoused persons, Defendants' physical seizure and destruction of property on site, the off-site disposal of items unilaterally determined to be garbage or of insufficient value, Defendants' practice of piling up all items at an encampment site (including garbage), Defendants' seizure and destruction of property without an owner's permission (notwithstanding that the owner is present), and the seizure and destruction of unabandoned property left momentarily unattended. Id.

         Plaintiffs also identify several storage and storage-retrieval practices they claim are unconstitutional. See Dkt. #187 ¶¶ 174, 178-88. These practices include: (1) Defendants' alleged “official sanctioned practice” of ignoring policies that govern whether an item should be stored; (2) Defendants ignore policies that require them to notify unhoused persons of whether their property will be stored, where it will be stored, for how long it will be stored, and how it may be retrieved; (3) when Defendants provide storage information, they only provide a phone number, thus leaving people without phone access or money for phone access without recourse; (4) Defendants do not inventory or keep track of destroyed or confiscated items, thus preventing unhoused persons from knowing whether their property was stored; and (5) Defendants impose additional barriers-including the location of Defendants' storage facilities and the facilities' limited operating hours-that burden an unhoused person's ability to retrieve their personal property. Id.

         The individual named Plaintiffs, Lisa Hooper, Brandi Osborne, Kayla Willis, and Reavy Washington (collectively the “Individual Plaintiffs”), live outside, on public property, in the City of Seattle. Dkt. #87 ¶¶ 34, 41, 50, 55. They allege they are victims of Defendants' ongoing policy and practice of seizing and destroying the property of unhoused people living outside without adequate and effective notice, an opportunity to be heard, or a meaningful way for them to reclaim any of their undestroyed property. Id. ¶¶ 34-59. Plaintiffs further allege they have had critical personal belongings taken and destroyed during cleanups conducted by the City and WSDOT, and were not given an opportunity to contest the confiscation and destruction of their property. Id. ¶¶ 35-36, 42-43, 46-47, 51, 56-57. They further assert they were not given notice or reason to believe their property would be stored and could later be retrieved. See id. ¶¶ 35-59. Three organizational plaintiffs, the Diocese of Olympia, Trinity Parish of Seattle, and Real Change, also join the Individual Plaintiffs' suit. Id. ¶¶ 61-71.

         Through this suit, Plaintiffs seek a declaratory judgment that Defendants' alleged policy and practice of confiscating and/or destroying the personal property of unhoused persons without a warrant, probable cause, and the requisite due process safeguards is unlawful under federal and state law. Id. at 51. Plaintiffs also seek injunctive relief. Id.


         A. Class Certification.

         Federal Rule of Civil Procedure 23 governs class certification. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Under Rule 23(a), the party seeking certification must demonstrate “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). After satisfying the Rule 23(a) requirements, the proposed class must also satisfy at least one of the three requirements listed in Rule 23(b). Dukes, 564 U.S. at 345; also Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2013). In this case, Plaintiffs seek to certify a class under Rule 23(b)(2). Dkt. #2 at 7-8. Rule 23(b)(2) requires Plaintiffs to demonstrate “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Dukes, 564 U.S. at 360.

         Notably, Rule 23 “does not set forth a mere pleading standard.” Id. at 350. Instead, the party seeking certification must “affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. “Certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Id. at 350-51 (internal quotation omitted). “[I]t may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). This is because “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.” Id. (internal quotation omitted). Nonetheless, the ultimate decision regarding class certification “involve[s] a significant element of discretion.” Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).

         B. Preliminary Injunction.

         To obtain a preliminary injunction, Plaintiffs must establish the following: (1) their likelihood to succeed on the merits; (2) that it is likely they will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in their favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Where a moving party's assertions are “substantially controverted by counter-affidavits, ” relief should not be granted unless that party makes a “further showing” that it will “probably succeed on the merits.” K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1089 (9th Cir. 1972).


         A. Class Certification Motion.

         The Individual Plaintiffs seek certification of a class comprised of all unhoused[3] people who live outside[4] within the City of Seattle and who keep their personal possessions on public property. Dkt. #2 at 1, 8. They assert certification is proper because they satisfy the requirements of Rule 23. Defendants do not dispute that Plaintiffs have established Rule 23(a)(1)'s numerosity requirement, but disagree that Plaintiffs demonstrate the remaining requirements needed for class certification. The Court addresses each requirement in turn.

         a. Rule 23(a).

         i. Plaintiffs Establish Numerosity.

         Under Rule 23(a)(1), a class action may only be maintained if “the class is so numerous that joinder of all members is impracticable.” Courts consider several factors to determine if joinder of class members is impracticable, and plaintiffs need not demonstrate that joinder is impossible. 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1762 (3d ed. 2017). The size of the proposed class, the location of putative class members, the nature of the action and relief sought, and the class members' reluctance, or inability, to sue on their own may all contribute to a court's Rule 23(a)(1) analysis. Id.; also Gray v. Golden Gate Nat. Recreational Area, 279 F.R.D. 501, 508 (N.D. Cal. 2011); Jordan v. L.A. Cnty., 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982).

         Plaintiffs satisfy numerosity for three reasons. First, Plaintiffs have submitted a report indicating there are at least 2, 942 people in Seattle without fixed, regular, or adequate housing, and at least 2, 000 of these people live outside. See Dkt. #202, Ex. 1 at 3. Second, considering that unhoused persons typically lack the financial means to pursue individual litigation, and because this population may be transient, the Court agrees with Plaintiffs that individual joinder is unlikely. See Dkt. #2 at 9-10. Finally, the Court also agrees that because the proposed class may contain unknown members who may also be subject to Defendants' alleged policies and practices, joinder is impracticable. In summary, given the potential size and demographics of the proposed class, the Court agrees that joinder is impracticable, if not impossible. Plaintiffs thus satisfy Rule 23(a)(1)'s numerosity requirement.

         ii. Plaintiffs Fail to Establish Commonality.

         Commonality can be established if Plaintiffs demonstrate they and the proposed class members “‘have suffered the same injury.'” Dukes, 564 U.S. at 349-50 (quoting Falcon, 457 U.S. at 157). This can be done if Plaintiffs raise a “common contention” between them and the proposed class members of “such a nature that it is capable of classwide resolution.” Id. at 350. A contention is capable of classwide resolution if determining its truth or falsity resolves “an issue that is central to the validity of each one of the claims in one stroke.” Id. Consequently, “what matters to class certification . . . is not the raising of common questions-even in droves- but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. Commonality is thus usually satisfied where plaintiffs allege that the same conduct or practice by the same defendant underlies their claims. 1 Joseph M. McLaughlin, McLaughlin on Class Actions: Law and Practice § 4:7, at 623 (13th ed. 2016). This requirement is construed permissively, and all questions of fact and law need not be common to satisfy Rule 23(a)(2). See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). “In the civil rights context, commonality is satisfied ‘where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.'” Parsons v. Ryan, 289 F.R.D. 513, 516 (D. Ariz. 2013) (quoting Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)). However, Plaintiffs must present “significant proof” of the alleged system-wide practice or policy. Id. at 521-22 (“[T]he crucial question is whether there is sufficient evidence of systemic issues in the provision of health care or whether Plaintiffs' allegations are simply many examples of isolated instances of deliberate indifference.”).

         Plaintiffs do not meet the evidentiary burden necessary to demonstrate commonality. As explained by the Ninth Circuit in Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014), in analyzing commonality, it is critical for district courts to identify the policies and practices plaintiffs allege they and the proposed class members are exposed to. By identifying these policies and practices, the Court can then determine if Plaintiffs demonstrate that the proposed class members are all exposed to the challenged policies, which in turn allows the Court to assess whether determining common questions raised by these policies will “resolve an issue that is central to the validity of each one of the [individual class members'] claims in one stroke.” Dukes, 564 U.S. at 350.

         Here, although Plaintiffs' Second Amended Complaint identifies several notice, storage, and storage-retrieval practices Defendants allegedly engage in, Plaintiffs' class certification motion does not try to demonstrate the existence of the practices alleged. See Dkts. #2 at 10-11 and #87 ¶¶ 139-188. Instead, in their Reply, Plaintiffs refer to declarations, videos, and photographs they contend support the existence of Defendants' alleged unlawful practices. See Dkt. #159 at 2, 4. However, Plaintiffs' conclusory statement is not supported by the evidence cited. See Dkts. #94, Exs. J-R and #121. The declarations, photographs, and videos cited do not provide enough context for the Court to determine at which point in the City's multi-stage cleanup process the declarants observed the alleged destruction of property. Notably, at least one source of the videos and photographs admits not knowing this critical information, and Plaintiffs' own counsel admitted at oral argument he did not know at which stage in the cleanup process the videos and photographic evidence were taken. See Dkts. #180, Ex. E at 209-211 and #208 at 13. This is unlike Parsons, where the plaintiffs submitted significant proof of the existence of the systemic policies and practices alleged. 754 F.3d at 681-84. Here, Plaintiffs fail to do the same.

         Plaintiffs' raising of five questions they claim are common to the entire proposed class also fails to satisfy commonality. See Dkt. #2 at 11. Plaintiffs contend they satisfy commonality because the proposed class members share common questions of fact and law. Plaintiffs list the following as representative questions shared by the proposed class:

1. Whether Defendants have a practice and policy of seizing and destroying the personal property of people living outside without a warrant, probable cause, adequate notice, an opportunity to have a meaningful pre- or post-deprivation hearing, or an opportunity to retrieve vital personal property before its seizure or destruction?;
2. Whether Defendants' policy and practice violates Plaintiffs' constitutional rights against unreasonable search and seizures under the U.S. Constitution?;
3. Whether Defendants' custom, policy, or practice violates class members' right to privacy under Article I, Section 7 of the Washington State Constitution?;
4. Whether Defendants' custom, policy, or practice violates class members' constitutional rights to due process ...

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