Scott E. Pombrio v. A. Villaragosa et al

Filing 15

ORDER DENYING REQUESTS FOR INJUNCTIVE RELIEF by Judge George H. King: denying 6 Motion for Preliminary Injunction; and denying 14 Request for TRO. The Request and Motion are DENIED. IT IS SO ORDERED. (mz)

Scott E. Pombrio v. A. Villaragosa et al

Doc. 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SCOTT E. POMBRIO, ) NO. CV 10-5604-GHK (MAN) ) Plaintiff, ) ) v. ) ORDER DENYING REQUESTS FOR ) INJUNCTIVE RELIEF CITY-COUNTY OF LOS ANGELES, et al.,) ) Defendants. ) ___________________________________) This action commenced on August 16, 2010, after plaintiff was granted leave to proceed without prepayment of the filing fee and filed his original complaint. Amended Complaint On August 20, 2010, plaintiff filed his First The Complaint rests on asserted UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

("Complaint")

violations of the American With Disabilities Act ("ADA") that allegedly occurred in connection with plaintiff's unsuccessful attempts to enter the Los Angeles County Law Library ("LACLL") and the Los Angeles Public Library, Main Branch ("LAPL") with his personal possessions in tow and/or utilize the exterior premises of the LAPL in late July 2010. (Complaint at 3-5.) The named defendants in this action are the City of

Los Angeles, the County of Los Angeles, and Los Angeles Mayor Antonio Villaraigosa. (Id. at 1, 3, 5.)

Dockets.Justia.com

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The Complaint alleges a single cause of action.

(Complaint at 7-

Plaintiff contends that defendants have violated the ADA by

implementing and/or enforcing a policy at LACLL and LAPL that prohibits library users from bringing "bags" containing their personal possessions into the libraries and from "check[ing]" such bags and possessions and/or leaving them on outside patios. (Id. at 3-4.) Plaintiff alleges that he is homeless and physically disabled, it causes him pain to walk up and down hills, and the above library policies are barriers to his ability to use such libraries. (Id. at 3, 8-9.) Although this is

somewhat unclear, plaintiff also appears to rest his ADA claim on a July 31, 2010 incident at the LAPL, during a private party held on the exterior library premises on a Saturday evening, when "security guards" prevented plaintiff from utilizing a fountain and forced him to exit the premises via a stairway. (Id. at 5.) Plaintiff alleges that these

policies and events constituted discrimination on the basis of his physical disability in violation of the ADA. (Id. at 7-9.)1

As plaintiff has been advised by Order of August 17, 2010, United States Magistrate Judge Margaret A. Nagle presently is screening the Complaint pursuant to 28 U.S.C. § 1915(e)(2). defendant has been served with process in this case. Thus, as yet, no

On August 16, 2010, plaintiff filed a Motion For A Preliminary

1 The original complaint indicated that it was brought under both the ADA and 42 U.S.C. § 1983, and it alleged federal constitutional violations in addition to ADA violations. The instant Complaint states expressly (at 1) that it is brought pursuant to the ADA, as well as California statutory and regulatory law, and appears to have omitted the Section 1983 claim, although this is somewhat unclear given the bare references to "42 USC § 1983" set forth at the top of pages 5-9.

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Injunction ("Motion").

The Motion states that the relief sought is an

order granting plaintiff, along with his property, "full and equal access" to all of "defendants['] buildings, facilities, libraries." (Motion at 1.) However, in an accompanying memorandum of points and

authorities ("Memorandum"), plaintiff appears to limit the relief sought to unencumbered access, with his property, to LACLL and LAPL. Plaintiff complains that, on July 28, 2010, he was not allowed to bring into LACLL bags containing his possessions, even though he had been allowed to do so the day before. Plaintiff alleges that it is physically difficult

and/or painful for him to have to leave his bags elsewhere when he needs to use LACLL. (Memorandum at 1-3.) Plaintiff asserts that

"disadvantaged" and homeless persons, such as himself, should have full access to both libraries, whether by being allowed to bring their possessions inside or through the use of a procedure by which the libraries check the possessions of persons desiring entry. (Id. at 3.)

On September 3, 2010, plaintiff filed an "Amended TRO Request Per 42 USCS § 2000a-3(a) Status Of Action Request" and related proposed order ("Request"). Plaintiff asks that: a hearing be scheduled for the Motion; and a temporary restraining order issue, pending such hearing and prior to service of the defendants with process, directing LACLL and LAPL to grant him access with "all of plaintiff's property."

The Request does not comply with the requisites for the issuance of a temporary restraining order set forth in Rule 65 of the Federal Rules of Civil Procedure. The Complaint is not verified, and plaintiff has Plaintiff has not certified why notice to Accordingly, the

not submitted an affidavit.

defendants was not given and should not be required. 3

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requested temporary restraining order may not issue without notice. See Fed. R. Civ. P. 65(b)(1).

In addition, it is well-settled that "[a] district court must have personal jurisdiction over a party before it can enjoin its actions." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 111-12, 89 S. Ct. 1562, 1570 (1969); accord Zepeda v. United States I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). No defendant has been served with the The Court, therefore, does not

Summons and Complaint in this action.

yet have personal jurisdiction over any defendant and cannot issue injunctive relief against them. See also Fed. R. Civ. P. 65(a)(1)

("[t]he court may issue a preliminary injunction only on notice to the adverse party").

Further, preliminary injunctive relief may not issue unless the moving party establishes "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural

Resources Defense Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008). The Ninth Circuit has concluded that its "serious questions"

test for the issuance of a preliminary injunction remains viable after Winter, holding that "`[a] preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor.'" Alliance for Wild Rockies v. Cottrell, ___ F.3d ___, 2010 WL

2926463, *7 (9th Cir. July 28, 2010)(citation omitted).

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Plaintiff's allegations do not meet either formulation of the test. While the screening process has not yet been completed, it appears that the Complaint may not be ordered served upon any defendant and, instead, may be dismissed with leave to amend. Hence, there can be no finding of While plaintiff asserts

probable success on the merits at this time.

hardship, he has not established -- through competent evidence -- any such hardship. Significantly, by the Request and the Motion, plaintiff Rather, he seeks to have this

does not seek to maintain the status quo.

Court effect a significant change in the status quo, namely, to issue an order prohibiting two large public libraries from enforcing their policies limiting the items patrons may bring into the libraries. Given the safety or other public interest concerns potentially underlying such policies, the showing by plaintiff is inadequate to warrant the relief requested. Under the circumstances before it, the Court concludes that he is likely to

plaintiff has not met his burden of showing that:

suffer irreparable injury in the absence of injunctive relief, the balance of equities tips in his favor, and an injunction is in the public interest; or that the balance of hardships tips sharply in his favor.

Accordingly, the Request and Motion are DENIED.

IT IS SO ORDERED.

DATED:

9/8/10

. ____________________________ GEORGE H. KING UNITED STATES DISTRICT JUDGE 5

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PRESENTED BY:

______________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE

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