Thompson v. Central Valley School District No 365

1 U.S. FDILISETDR IINC TT HCEO URT EASTERN DISTRICT OF WASHINGTON 2 Nov 01, 2021 3 SEAN F. MCAVOY, CLERK 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 10 RANDEY THOMPSON, No. 2:21-CV-00252-SAB 11 Plaintiff, 12 v. 13 CENTRAL VALLEY SCHOOL 14 DISTRICT NO. 365; BEN SMALL, ORDER DENYING 15 individually as Superintendent of the PLAINTIFF’S MOTION FOR 16 Central Valley School District, CENTRAL TEMPORARY RESTRAINING 17 VALLEY SCHOOL DISTRICT NO. 365 ORDER AND PRELIMINARY 18 BOARD OF EDUCATION and in their INJUNCTION 19 individually capacity BOARD OF 20 EDUCATION MEMBERS and 21 DIRECTORS DEBRA LONG, MYSTI 22 RENEAU, KEITH CLARK, TOM 23 KINGUS, and CYNTHIA MCMULLEN 24 Defendants. 25 26 Before the Court is Plaintiff’s Motion for Temporary Restraining Order and 27 Preliminary Injunction, ECF No. 7. A hearing on the motion was held on October 28 29, 2021, in Spokane, Washington. Plaintiff was represented by Robert Greer and Michael Love. Defendant was represented by Michael McFarland and Rachel Platin. 3 At the conclusion of the hearing, the Court orally denied Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction. This Order 5|| memorializes the Court’s oral ruling. Background Prior to August 2020 Plaintiff was an assistant principal at Evergreen Middl School, which is in the Central Valley School District (CVSD). He started working CVSD in 1991. After watching the Democratic National Convention, Plaintiff 10|| posted his thoughts about the convention on Facebook. The following post was on Facebook: 12 ae Pee) ee a 4 = et - 13 14 Hy Randey Thompson 15 ae Leen Tetras could retire on Michelle Obama's rant alone. What 8 | hatefull racists bitch. If you need to lie to try and win 1 6 | you are just shit. If you believe them you are even worse. Wake the fuck up Ee wtb 1 7 □□ cece Wen “ah pedophile man) and the former DNC, now just the little bitch of 18 er cit ra Greet Cotry and he rest of Use gawu wert of ole act and going to take you to the 19 eee rae a forthe ra tide. Lets see a long | until the FB liberal defenders take this one down. 20 | Oos 6 Comments 21 uike = Comment) Sena □ 22 Although he maintains it was a private post to a select group, it appears it was posted so that others could see it. Plaintiff asserts that he did not post the above-captured post. Instead, he maintains that he posted the following: 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER ANT) PRET IMINARYV INJITINCTION ~ 9 1 a 4 Ce 3 = Pe — en: ee □□ 3 < aye . <i Demtard convention opens and the only facts spoken were the names. lie after lie. The fact checkers could 5 ean Tyaimetss ney ol a Tenkuacaewe Poe cork we fame. = are being ee Patiereiananmeaemes: 4,02 aoe," a g Doroes scale. You we nivel 9 Seine tira cou cleat May God help you to pull your heads Sie were Loe ous ow tay eal | 0 ere liberal defenders take this one down. 11 □ 12 In the ensuing months, Plaintiff maintained that his Facebook account was 13|| hacked and someone else posted the first example of the post. 14 One person who viewed the first Facebook post believed it to be offensive 15|| and the post was forwarded on to at least three other CVSD employees until it 16|| reached Ben Small, the Superintendent of CVSD. He also thought it was offensive 17|| and placed Plaintiff on administrative leave on August 19, 2020. Eventually, 18|| Plaintiff was demoted from his assistant principal job and is now teaching in the classroom for CVSD. 20 Plaintiff filed suit on August 23, 2021, alleging claims for violation of his 21|| First Amendment rights. Ultimately, he is seeking to be reinstated as assistant 22\| principal at Evergreen Middle School, as well as compensatory and special 23|| damages, punitive damages and attorneys’ fees. 24 On September 20, 2021, Plaintiff filed his Motion for Temporary 25|| Restraining Order and Preliminary Injunction. 26 Motion Standard 27 “A preliminary injunction is a matter of equitable discretion and is ‘an 28|| extraordinary remedy that may only be awarded upon a clear showing that a ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND) PRET IMINARY INJITINCTION ~ 2 1 plaintiff is entitled to such relief.’” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2 2018) (quoting Winter v. NRDC, 555 U.S. 7, 22 (2008)). “A party can obtain a 3 preliminary injunction by showing that (1) it is ‘likely to succeed on the merits,’ 4 (2) it is ‘likely to suffer irreparable harm in the absence of preliminary relief,’ (3) 5 ‘the balance of equities tips in [its] favor,’ and (4) ‘an injunction is in the public 6 interest.’” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) 7 (quoting Winter, 555 U.S. at 20). 8 The Ninth Circuit uses a “sliding scale” approach in which the elements are 9 “balanced so that a stronger showing of one element may offset a weaker showing 10 of another.” Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (quotation 11 omitted). When the government is a party, the last two factors merge. Drakes Bay 12 Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). This means that when 13 the government is a party, the court considers the balance of equities and the public 14 interest together. Azar, 911 F.3d at 575. “[B]alancing the equities is not an exact 15 science.” Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 16 (1952) (Frankfurter, J., concurring) (“Balancing the equities . . . is lawyers’ jargon 17 for choosing between conflicting public interests”)). 18 A plaintiff seeking preliminary relief must “demonstrate that irreparable 19 injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. The 20 analysis focuses on irreparability, “irrespective of the magnitude of the injury.” 21 Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999). Economic harm is 22 not normally considered irreparable. L.A. Mem’l Coliseum Comm’n v. Nat’l 23 Football League, 634 F.2d 1197, 1202 (9th Cir. 1980). 24 Due to the exigent nature of a preliminary injunction, a court may consider 25 hearsay and other evidence that would otherwise be inadmissible at trial. Johnson 26 v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009). 27 To the extent that Plaintiff is seeking money damages and back pay for the 28 loss of his administrative job, his remedy at law is adequate. See Stanley v. Univ. of 1 S. Cal., 13 F.3d 1313, 1321 (9th Cir. 1994). Thus, the only issue currently before 2 this Court is whether Plaintiff should be reinstated as Assistant Principal at 3 Evergreen Middle School. 4 Preliminary relief may take two forms: it may be prohibitory or mandatory 5 in nature. “A prohibitory injunction prohibits a party from taking action and 6 preserves the status quo pending a determination of the action on the merits.” 7 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 8 (9th Cir. 2009) (alterations and quotation marks omitted). A mandatory injunction 9 orders a responsible party to “take action.” Garcia v. Google, Inc., 786 F.3d 733, 10 740 (9th Cir. 2015). It “goes well beyond simply maintaining the status quo 11 pendente lite and is particularly disfavored.” Stanley, 13 F.3d at 1320 (quotations 12 omitted). The Ninth Circuit has observed that “courts should be extremely cautious 13 about issuing a preliminary injunction” in those circumstances. Martin v. Int'l 14 Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984). When a mandatory 15 preliminary injunction is requested, the district court should deny such relief unless 16 the plaintiff can establish that the facts and law clearly favor him, not simply that 17 he is likely to succeed. Garcia, 786 F.3d at 740. Consequently, “[i]n general, 18 mandatory injunctions are not granted unless extreme or very serious damage will 19 result and are not issued in doubtful cases or where the injury complained of is 20 capable of compensation in damages.” Marlyn Nutraceuticals, 571 F.3d at 879. 21 Analysis 22 Here, the Court finds that Plaintiff has not meet the requirements for 23 obtaining a mandatory preliminary injunction. First, Plaintiff cannot show 24 irreparable harm in the absence of an injunction. Plaintiff seems to be arguing that 25 simply because he is alleging his First Amendment rights are violated, the Court 26 should find he has suffered irreparable harm. But the cases relied on by Plaintiff 27 for that assertion deal with prior restraint of speech by the government. See e.g. 28 Elrod v. Burns, 427 U.S. 347 (1976) (holding that retention of government jobs 1 cannot be based on employee’s political belief or political affiliation); Reno v. 2 ACLU, 521 U.S. 844 (1997)(challenging the constitutionality of provisions of 3 Communications Decency Act seeking to protect minors from harmful material on 4 internet). Here, Plaintiff is not arguing that CVSD is currently restraining his 5 speech. Instead, he asserts CVSD is retaliating against him for speech that was 6 made in the past. Moreover, Plaintiff is still employed with CVSD. Because his 7 salary is significantly less, however, it may be that Plaintiff is experiencing harm, 8 but it is clear the harm is not “irreparable.” 9 Additionally, Plaintiff has not shown that the law and facts are clearly in his 10 favor, or that there are serious questions going to the merits. There is nothing in the 11 record to suggest that CVSD took any adverse action because of Plaintiff’s 12 political views or his affiliation with any political party. Rather, the record strongly 13 suggests that CVSD took the action it did because of Plaintiff’s use of certain 14 words, including using the term “Demtard,” calling the former First Lady a racist 15 “bitch,” using the term “short bus” in a derogatory manner, and calling students 16 “snowflakes” and “Tide Pod challenged,” and because it believed that not only did 17 Plaintiff not cooperate with the investigation, but he also lied to school officials. 18 In sum, Plaintiff has not met his burden of showing that the requested 19 preliminary injunction is required or proper. 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 7, is DENIED. IT IS SO ORDERED. The Clerk of Court is directed to enter this Order 5|| and forward copies to counsel. DATED this Ist day of November 2021. 8 9 ‘ Shockey ec toar Stanley A. Bastian 12 Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER ANT) PRET IMINARYV INJTINCTION ~ 7