(HC) Keo v. Warden of the Mesa Verde ICE Processing Center, et al.

Filing 14

ORDER DENYING 4 Petitioner's Motion for a Temporary Restraining Order, signed by Magistrate Judge Helena M. Barch-Kuchta on 8/28/2024. (Rivera, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:24-cv-00919-HBK (HC)1

SOKHEAN KEO,

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ORDER DENYING PETITIONER’S MOTION
FOR A TEMPORARY RESTRAINING
ORDER

Petitioner,

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v.

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WARDEN OF THE MESA VERDE ICE
PROCESSING CENTER, et al,

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(Doc. No. 4)

Respondent.

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Before the court is Petitioner’s motion for a temporary restraining order. (Doc. No. 4,

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“Motion”). Petitioner, an immigrant detainee in U.S. Immigration Customs and Enforcement

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(ICE) custody at the Mesa Verde ICE Processing Center in Bakersfield, California, has pending a

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pro se petition for writ of habeas corpus filed under 28 U.S.C. § 2241 challenging his prolonged

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detention without a bond hearing. (Doc. No. 1, “Petition”). For the reasons set forth below, the

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Court denies the Motion.
I. BACKGROUND

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On August 8, 2024, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. §

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2241 claiming he has been detained in immigration custody for over 18 months without a bond

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Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C.
§636(c)(1). (Doc. No. 9).

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hearing in violation of the due process clause of the Fifth Amendment. (Doc. No. 1 at 2). As

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relief, the Petition seeks release from custody or, in the alternative, Respondent should be ordered

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to schedule a hearing before an immigration judge. (Id. at 18).

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The same day, Petitioner filed the instant Motion. Petitioner states he has been in ICE

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custody for approximately one year and eight months without a bond hearing and seeks a

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temporary restraining order directing Respondents to immediately release him from custody or

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provide him with a bond hearing before a neutral decisionmaker. (Doc. No. 4). The Motion

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otherwise contains no argument or facts. (See generally Id.). On August 16, 2024, Respondent

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filed an opposition to Petitioner’s motion for a TRO, arguing it should be denied as it

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inappropriately requests the ultimate relief sought in the Petition and deprives Respondent of a

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full and fair opportunity to investigate and respond to the Petition. (Doc. No. 11).

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II. APPLICABLE LAW AND ANALYSIS
The primary purpose of a preliminary injunction is preservation of the status quo. See,

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e.g., Ramos v. Wolf, 975 F.3d 872, 887 (9th Cir. 2020). More specifically, the purpose of a

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preliminary injunction is preservation of the Court's power to render a meaningful decision after a

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trial on the merits. See, e.g., Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Barth v.

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Montejo, 2021 WL 1291962, at *1 (E.D. Cal. Apr. 7, 2021). It is meant to maintain the relative

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positions of the parties and prevent irreparable loss of rights before a trial and final judgment.

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See, e.g., Camenisch, 451 U.S. at 395; Ramos, 975 F.3d at 887; Doe #1 v. Trump, 957 F.3d 1050,

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1068 (9th Cir. 2020). A preliminary injunction may assume two forms. Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009). Prohibitory injunctions

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prevent a party from acting, thus maintaining the status quo. Id. A mandatory injunction directs

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some responsible party to act. Id. at 879.

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The legal principles applicable to requests for injunctive relief, such as a temporary

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restraining order or preliminary injunction, are well established. To prevail, the moving party

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must show that irreparable injury is likely in the absence of an injunction. See Stormans, Inc. v.

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Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc.,

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555 U.S. 7, 20–22 (2008)); see also All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
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Cir. 2011). To the extent prior Ninth Circuit cases suggest a lesser standard by focusing solely on

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the possibility of irreparable harm, such cases are “no longer controlling, or even viable.” Am.

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Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); see Stormans,

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586 F.3d at 1127; Cottrell, 632 F.3d at 1131. Under Winter, the proper test requires a party to

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demonstrate: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in

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the absence of an injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is

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in the public interest. See, e.g., Winter, 555 U.S. at 20; Stormans, 586 F.3d at 1127; Cottrell, 632

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F.3d at 1131.

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Temporary restraining orders are governed by the same standard applicable to preliminary

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injunctions, with the exception that preliminary injunctions require notice to the adverse party.

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See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126

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(E.D. Ca. 2001); see also Fed. R. Civ. P. 65(a). Eastern District of California Local Rule 231,

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however, requires notice for temporary restraining orders as well, “[e]xcept in the most

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extraordinary of circumstances,” and the court considers whether the applicant could have sought

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relief by motion for preliminary injunction at an earlier date. Local Rule 231(a)-(b) (E.D. Cal.

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2019). A temporary restraining order “should be restricted to serving [its] underlying purpose of

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preserving the status quo and preventing irreparable harm just so long as is necessary to hold a

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hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers

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Local No. 70, 415 U.S. 423, 439 (1974).

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A preliminary injunction is an extraordinary remedy that is not awarded as of right.

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Winter, 555 U.S. at 24; Cottrell, 632 F.3d at 1131. The burden to achieve injunctive relief is

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particularly high when a party seeks a mandatory injunction. See Garcia v. Google, Inc., 786

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F.3d 733, 740 (9th Cir. 2015). Mandatory injunctions go beyond an injunction preventing a party

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from acting, and thus beyond mere maintenance of the status quo. See id. They require a party to

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act. Id. District courts must deny requests for mandatory injunctions unless the law and facts

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clearly favor a moving party. Id. The Court will not grant such requests in doubtful cases. Id.

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Here, Respondent argues Petitioner’s Motion is improper and should be denied because he

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“seeks only to alter the status quo by issuing an expedited order that would grant him the ultimate
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relief [he] seeks in his petition.” (Doc. No. 11 at 3). The Court agrees. In his 2-page Motion,

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Petitioner summarily requests that he be released from custody or provided with a bond hearing,

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which is precisely the same ultimate relief sought in his underlying Petition. (Compare Doc. Nos.

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1 and 4). “[I]t is generally inappropriate for a federal court at the preliminary-injunction stage to

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give a final judgment on the merits.” Mendez v. U.S. Immigrations and Customs Enforcement,

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2023 WL 2604585, at *3 (N.D. Cal. Mar. 15, 2023) (citing Univ. of Tex., 451 U.S. at 395)

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(denying Plaintiff’s motion for a TRO); Senate of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir.

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1992) (“In general, that kind of judgment on the merits in the guise of preliminary relief is a

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highly inappropriate result.”).

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Moreover, Petitioner’s Motion is procedurally deficient. Because a temporary restraining

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order provides extraordinary relief, a movant must comply with the procedural requirements set

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forth in Federal Rules of Civil Procedure 65 (b) and Local Rule 231. Rule 65(b) permits the court

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to issue a TRO only if (1) specific facts in the affidavit or underlying pleading show that

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immediate and irreparable injury, loss, or damage will result before the opposing party may be

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heard; and (2) the movant certifies in writing efforts made to give notice and the reasons why

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notice should not be required. Fed. R. Civ. P. 65(b)(1). This Court’s Local Rules also sets forth

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certain procedural mandates for a temporary restraining order to issue, including that the movant

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provide the following documents: (1) an underlying pleading; (2) a motion for temporary

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restraining order; (3) a brief on the relevant legal issues; (4) an affidavit to support the existence

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of irreparable harm; (4) an affidavit detailing the notice or efforts undertaken or showing good

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cause why notice should not be given; (5) a proposed temporary restraining order and provision

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for bond; and (6) a proposed order with blank for fixing time and date for a hearing. Local Rule

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231(c) (E.D. Cal. 2022). Critical is that there is no affidavit attesting to notice, no briefing on the

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any legal issue, and no affidavit to support irreparable harm, in addition to not supplying the

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proposed orders. Based on the procedural infirmities alone the Court may deny the Motion.

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Bennett v. Ponce, No. LA-CV-18-04996-VBF-AS, 2019 WL 8589408, at *1 (C.D. Cal. Jan. 24,

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2019). Nor has Petitioner made any argument whatsoever addressing the Winter factors. See

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Winter, 555 U.S. at 20.
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For the foregoing reasons, Petitioner fails to meet his burden to demonstrate he is entitled

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to this extraordinary form of injunctive relief, and his Motion will be denied without prejudice.

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The Court, however, may exercise its discretion and call for an expedited response to the Petition.

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Accordingly, it is ORDERED:

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Petitioner’s motion for temporary restraining order (Doc. No. 4) is denied

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Dated:

August 28, 2024
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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