MacDonald v. The University of Alaska et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANIEL MACDONALD,
Plaintiff,
v.
THE UNIVERSITY OF ALASKA, et
al.,
Defendants.
Case No. 1:20-cv-00001-SLG
ORDER RE PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Before the Court at Docket 4 is Plaintiff’s Emergency Motion for a Temporary
Restraining Order and Preliminary Injunction.1 Plaintiff has requested oral
argument on an expedited basis, but oral argument was not necessary to the
Court’s determination.2
In his Complaint, Plaintiff asserts 10 causes of action against The University
of Alaska, Sara Childress, Chase Parkey, Sean McCarthy, Jon Tillinghast, and
John Does 1–25 (“Defendants”), including: several violations of the Fifth and
Fourteenth Amendment; conspiracy to deprive Plaintiff of his due process rights
1 Due to the coronavirus pandemic, by Miscellaneous General Order 20-11, the District of Alaska
imposed a stay on all civil matters for 30 days, effective March 30, 2020. Due to the asserted
emergency nature of the motion, the undersigned judge, presiding in this matter, hereby lifts the
stay in this case. See Miscellaneous General Order 20-11 at 6–7.
2 Docket 4 at 1.
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under the Fifth and Fourteenth Amendments; violation of Alaska’s Administrative
Procedures Act, AS 44.62.010, et seq.; breach of contract; breach of express
warranty; and two negligence claims.3 He requests a jury trial and seeks
declaratory judgment, injunctive relief, actual damages, punitive damages, and
costs and fees.4
Relevant to the instant motion,5 Plaintiff’s unverified Complaint, signed only
by his counsel, alleges the following facts: On November 8, 2019, Plaintiff, a
student and part-time residence assistant at the University of Alaska (“UA”),
received a letter from Sarah Childress, Title IX Coordinator for UA, informing him
that he was under investigation for sexual harassment and non-consensual sexual
contact.6 The letter stated that Chase Parkey, acting Title IX Coordinator for UA
Southeast, would be conducting the investigation.7 The Complaint states that
3 Docket 1 at 15–34, ¶¶ 70–165.
4 Docket 1 at 34–35, ¶¶ 166–67.
5 Plaintiff bases his request for injunctive relief on two constitutional claims. The instant motion
only discusses those two claims and states:
Plaintiff brings this motion and the associated lawsuit claiming that the conduct of
the investigation has violated his due process rights, breached the contract he had
with UA incorporating the sexual harassment policy, and that UA violated the
Alaska administrative procedures act. He also brings other claims which are not
subject to this motion for a TRO/preliminary injunction.
Docket 4 at 8.
6 Docket 1 at 3–4, 6, ¶¶ 7, 14, 29; see also Docket 4-2 (letter).
7 Docket 1 at 6, ¶ 29; see also Docket 4-2 at 2.
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“[r]eference to UA’s sexual harassment policy . . . was made within the letter
implying that the investigation would be conducted in accordance with that policy.”8
The Complaint alleges that Mr. Parkey conducted the investigation in a way
that violated Plaintiff’s due process rights.9 The Complaint claims that Mr. Parkey’s
“inappropriate conduct during the investigation virtually assured that Plaintiff would
not be given a fair and equitable treatment of the allegations lodged against him,”
and that this “conduct . . . violated Plaintiff’s right to due process guaranteed under
the Fifth Amendment of the U.S. Constitution.”10
Plaintiff raised these concerns in a January 27, 2020 letter addressed to Mr.
Parkey and the UA administration.11 The Complaint alleges that “[a]s a result of
the letter, [Mr.] Parkey was removed from the investigation,”12 but asserts that “UA
intends to continue the investigation.”13
The Complaint next alleges that the investigation was not completed within
the 50-day timeframe prescribed by UA’s policy on sexual and gender-based
8 Docket 1 at 7, ¶ 29. Plaintiff has attached UA’s policy on sexual and gender-based discrimination
as an exhibit to the instant motion. Docket 4-1.
9 Docket 1 at 7–12, ¶¶ 33–53.
10 Docket 1 at 11–12, ¶ 50–53.
11 Docket 1 at 11, ¶ 49. Plaintiff attached a copy of this letter as an exhibit to the instant motion.
Docket 4-3.
12 Docket 1 at 11, ¶ 49.
13 Docket 1 at 16, ¶ 72. In a March 2, 2020 letter, attached as an exhibit to the instant motion,
Ms. Childress informed Plaintiff that a new investigator would be assigned to his case. Docket 4-
4 at 2. There is no evidence in the record of any activity in the investigation since that date.
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discrimination.14 Since Plaintiff was informed of the investigation on November 8,
2019, the Complaint alleges that “the investigation was to be completed by
December 28, 2019.”15 The Complaint claims that “Plaintiff was entitled to due
process under the Fifth and Fourteenth Amendments to the U.S. [Constitution] to
have allegations investigated following the policies set forth by UA,” and that
“continuing to investigate this matter violates Plaintiff’s due process rights.”16
Contending that he has raised serious questions going to the merits of these
two claims and that the continuation of UA’s investigation will harm him irreparably,
Plaintiff requests a temporary restraining order and a preliminary injunction.17
Plaintiff requests that the Court “enjoin UA and its agents from continuing with their
investigation” and “order that UA allow Plaintiff to complete his studies at UA with
no references to the allegations of sexual harassment and non-consensual sexual
contact.”18
14 Docket 1 at 6, ¶ 28 (emphasis in original); see also Docket 4-1 at 19 (policy stating that “[w]ithin
approximately 50 calendar days from the date the complaint was filed, the final investigative report
will be completed and the Title IX coordinator will notify the parties of the outcome of the
investigation . . . .”)
15 Docket 1 at 7, ¶ 30.
16 Docket 1 at 13, ¶¶ 57–58.
17 Docket 4 at 12–22.
18 Docket 4 at 23–24.
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LEGAL STANDARD
The standard for obtaining a temporary restraining order is the same as that
for a preliminary injunction. In Winter v. Natural Resources Defense Council, Inc.,
the United States Supreme Court held that 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.”19 Winter was focused on the second element, and clarified that
irreparable harm must be likely, not just possible, for an injunction to issue.20
Following Winter, the Ninth Circuit addressed the first element—the
likelihood of success on the merits—and held that its “serious questions” approach
to preliminary injunctions was still valid “when applied as a part of the four-element
Winter test.”21 Accordingly, if a plaintiff shows “that there are ‘serious questions
going to the merits’—a lesser showing than likelihood of success on the merits—
then a preliminary injunction may still issue if the ‘balance of hardships tips sharply
in the plaintiff’s favor.”22
19 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)).
20 See Winter, 555 U.S. at 25; see also All for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
(9th Cir. 2011).
21 See All. for the Wild Rockies, 632 F.3d at 1131–35.
22 Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in original)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
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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.”23
DISCUSSION
Based on the record before it, the Court finds that Plaintiff has not made the
requisite showing that he is likely to suffer irreparable harm in the absence of
preliminary injunctive relief. Plaintiff’s complaint is unverified; he has not filed a
sworn statement or other evidence to support his allegations.24 In his motion,
Plaintiff asserts that immediate relief is necessary since “UA has sought to re-
interview Plaintiff by the new investigator within the next week or so,”25 but no
evidence in the record before the Court supports this assertion.26 The Court does
not intend to discount the severity of Plaintiff’s alleged constitutional injury,27 but
23 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (citing United States v. Odessa
Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)).
24 Cf. Fed. R. Civ. P. 65(b) (allowing issuance of temporary restraining order without notice only
where “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”).
25 Docket 4 at 6; see also id. at 8 (“Time is of the essence” because “Defendants are intending to
continue the investigation by interviewing Plaintiff within the next week or so.”); id. at 20 (“UA is
seeking to interview Plaintiff, probably in the next week. As such, Plaintiff respectfully requests
that this Court act quickly in considering this motion.”).
26 The only indication in the record that the investigation is ongoing is the March 2, 2020 letter
stating that a new investigator would be assigned to Plaintiff’s case. Docket 4-4 at 2.
27 See Docket 4 at 20–22 (contending that Plaintiff’s constitutional injuries show a likelihood of
irreparable harm).
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Plaintiff simply has not offered any evidence that establishes that irreparable harm
is likely in the absence of preliminary injunctive relief.28
CONCLUSION
In light of the foregoing, Plaintiff’s Emergency Motion for a Temporary
Restraining Order and Preliminary Injunction at Docket 4 is DENIED without
prejudice.
DATED this 17th day of April, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
28 “[A] plaintiff must show that she ‘is likely to suffer irreparable harm in the absence of preliminary
relief.’ [The Ninth Circuit] has ruled that ‘[s]peculative injury does not constitute irreparable injury
sufficient to warrant granting a preliminary injunction. A plaintiff must do more than merely allege
imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened
injury as a prerequisite to preliminary injunctive relief.’” Boardman v. Pac. Seafood Grp., 822 F.3d
1011, 1022 (9th Cir. 2016) (alteration and emphasis in original) (first quoting Winters v. Nat.
Resources Def. Council, 555 U.S. 7, 20 (2008); then quoting Caribbean Marine Servs. Co., Inc.
v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)).
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