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Kohr v. City of Houston

United States District Court, S.D. Texas, Houston Division

December 28, 2017

TAMMY KOHR, et al, Plaintiffs,




         Pending before the Court are the plaintiffs' motion for a preliminary injunction and related attachments, (See Dkt. Nos. 48, 49, 59 & 61), together with the City's responses thereto. (See Dkt. Nos. 51, 52, 54, 62 & 63).[1] After careful consideration of the pleadings, motions, responses, testimony at the hearing and arguments of counsel, the Court determines that the plaintiffs' motion for preliminary injunction should be DENIED.[2] The temporary restraining order (“TRO”) previously issued in this case is hereby DISSOLVED.


         The plaintiffs, Tammy Kohr, Eugene Stroman, Janelle Gibbs, and Robert Colton (collectively, the “plaintiffs”), on behalf of themselves and a class of homeless persons similarly-situated, filed the instant action against the City of Houston (the “City”) seeking, inter alia, preliminary injunctive relief from various city ordinances alleged to be violative of their First, Fourth, Eighth and Fourteenth Amendment rights under the U.S. Constitution. The plaintiffs contend that the City's enforcement of “no-camping” and/or “encampment” ordinances violates their rights to be free from cruel and unusual punishment under the Eighth Amendment and essentially criminalizes their “homeless” status, singling them out for disparate treatment.

         On August 22, 2017, upon the plaintiffs' ex parte emergency application for a TRO, this Court entered a TRO enjoining the City from enforcing Houston Code of Ordinances §§ 21-61 to 21-62, which prohibits encampment in a public place as well as the unauthorized use of various materials as a tent or other temporary structure for living accommodation purposes or habitation in certain public spaces. On September 6, 2017, the Court extended the TRO as a result of challenges associated with the landfall of Hurricane Harvey throughout various parts of Houston. On October 17, 2017, the parties filed their Notice of Joint Scheduling Proposal agreeing to convene for a preliminary injunction hearing relative to the matter on October 31, 2017, and further agreeing to file exhibits and other supplemental evidence by October 25, 2017. Thereafter, the Court set the matter for a preliminary injunction hearing on October 31, 2017 at 9:30 a.m.

         On October 31, 2017, the parties appeared before the Court for a hearing on the plaintiffs' motion for preliminary injunction relief. At the close of the evidence, the Court took the matter under advisement and hereby memorializes its factual findings and conclusions of law from that evidentiary hearing.[3]


         The Court has jurisdiction to resolve this matter pursuant to 28 U.S.C. § 1331, as this case involves, inter alia, claims arising under the Constitution and laws of the United States, namely 42 U.S.C. § 1983 and the First, Fourth, Eighth and Fourteenth Amendments to the U.S. Constitution. Rule 65 of the Federal Rules of Civil Procedure authorizes a district court to issue an injunction. See Fed. R. Civ. P. 65.

         A district court may grant the extraordinary relief of a temporary restraining order or preliminary injunction if the movant establishes four prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer immediate and irreparable harm if the injunction does not issue; (3) that the threatened harm to the movant outweighs any injury or damage the preliminary injunction may cause to the defendant; and (4) that the granting of the preliminary injunction will not disserve the public interest. See Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987) (citing Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974)); see also Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).

         The movant “must satisfy a cumulative burden of proving each of the four elements enumerated before a preliminary injunction can be granted.” Clark, 812 F.2d at 993 (citing Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). The decision whether to grant or deny a request for a preliminary injunction, however, is left to the sound discretion of the district court. Miss. Power & Light Co., 760 F.2d at 621. Nevertheless, the Fifth Circuit has “cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion' on all four requirements.” Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003) (internal citation omitted).


         A. Standing

         As a threshold matter, the City argues that the plaintiffs lack standing to raise constitutional challenges to its encampment ordinance. Since standing is a jurisdictional requirement that cannot be waived and concerns this Court's very ability to adjudicate the instant dispute, the Court must first determine whether the plaintiffs have standing to assert the constitutional challenges now before it. A standing inquiry “raises the issue of whether the plaintiff is entitled to have the court decide the merits of the dispute or of particular issues.” Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000) (citing Cook v. Reno, 74 F.3d 97, 98 - 99 (5th Cir. 1996) (internal quotations and footnotes omitted)). ‚ÄúStanding is a jurisdictional requirement that focuses on the party seeking to get his complaint ...

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