Brar v. State of California

Filing 9

FINDINGS and RECOMMENDATIONS to Deny 4 Motion for Emergency Temporary Protective Order; ORDER to SHOW CAUSE in Writing Why Action Should Not be Dismissed as Time-Barred; ORDER DENYING Motion to Expedite and Construed Motions to Amend and Requests f or Subpoena, to Seal, and Seize (Docs. 6 , 7 , 8 ) re 1 Complaint, signed by Magistrate Judge Christopher D. Baker on 3/10/2025. Referred to Judge Thurston; Response to OSC and Objections to F&R due within 14 days. (Deputy Clerk OFR)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TANBEER SINGH BRAR,

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Plaintiff,

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v.
STATE OF CALIFORNIA,

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Defendant.

Case No. 1:25-cv-00136-JLT-CDB
FINDINGS AND RECOMMENDATIONS
TO DENY MOTIONS FOR EMERGENCY
TEMPORARY PROTECTIVE ORDER
(Doc. 4)
14-DAY OBJECTION PERIOD

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ORDER TO SHOW CAUSE IN WRITING
WHY ACTION SHOULD NOT BE
DISMISSED AS TIME-BARRED

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(Doc. 1)

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14-DAY DEADLINE

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ORDER DENYING MOTION TO
EXPEDITE AND CONSTRUED MOTIONS
TO AMEND AND REQUESTS FOR
SUBPOENA, TO SEAL, AND SEIZE

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(Docs. 6, 7, 8)

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I.

Relevant Background

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Plaintiff Tanbeer Singh Brar (“Plaintiff”), proceeding pro se and in forma pauperis,

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initiated this action with the filing of a complaint on February 3, 2025. (Doc. 1, 5). Plaintiff

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asserts a violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983 against Defendant

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State of California (“Defendant”), alleging that since July 2021, County of Kern and State of

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California “law enforcement agencies and officials are violating [his] online privacy and policy

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of [his] phones and computers.” (Doc. 1 at 5). Plaintiff alleges these officers started “violating

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by online surveillance and monitoring and tracking [his] phone and computers and since

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December 2022 [the] State [of] California administered [unintelligble] committing crime of …

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18 U.S.C. [§] 1519[.]” (Id.). Plaintiff alleges in his complaint that he requests “emergency

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protective orders to order for [the] recovery of … 25 million and to protect electronic devices …

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and protect electronic communication and documents and request for time to file a brief for relief

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and request for order for recovery of loss and damages.” (Doc. 1 at 6). Plaintiff further requests

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an “emergency order to protect” all his “phones and computer[s]” from “any search[,]”

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monitoring, tracking, and screen viewing and recording” and also requests “for time to file a

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brief.” (Id.).

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Two days after his filing of the complaint, on February 5, 2025, Plaintiff filed a motion

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for emergency temporary protective order and attached therewith an affidavit.

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Plaintiff requests that the Court enter a temporary protective order to protect his “data,

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documents, evidences, online search of data, blobs, data imageries, registries, online profiles,

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accounts, emails, [and] phone numbers.” (Id. at 2). Plaintiff further requests “for orders to have

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protection against unlawful online data mining and analyzing, monitoring, tracking of electronic

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devices, [and] unlawful management of intermediate search engine optimizations for

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personalized [] device[s].” (Id.). Plaintiff “request[s] emergency temporary protective orders

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until briefing the matters[.]” (Id. at 4). Plaintiff requests a court hearing for September 2025 (id.

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at 1) and notices a hearing for September 2, 2025. (Id. at 5).

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On February 26, 2025, Plaintiff filed a motion for expedited treatment.

(Doc. 4).

(Doc. 6).

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Specifically, Plaintiff requests the Court expedite his request for emergency temporary protective

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order and “ignore all clerical mistakes” in his filed motions. (Id.). On March 6, 2025, Plaintiff

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filed a motion to add a second cause of action to his complaint for violation of 18 U.S.C. § 1512

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and request for subpoena (Doc. 7) and a separate motion to add a third cause of action and a

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request to seal and seize (Doc. 8).

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II.

Motion for Emergency Temporary Protective Order (Doc. 4)

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A.

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A temporary restraining order (TRO) is an extraordinary and temporary “fix” that the

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Court may issue without notice to the adverse party if, in an affidavit or verified complaint, the

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movant “clearly show[s] that immediate and irreparable injury, loss, or damage will result to the

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movant before the adverse party can be heard in opposition.” Espinoza v. Mroczek, No. 2:23-cv-

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00228-TLN-JDP, 2023 WL 1869182, at *1 (E.D. Cal. Feb. 9, 2023) (citing Fed. R. Civ. P.

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65(b)(1)(A)); see E.D. Cal. Local Rule 231(a). The purpose of a temporary restraining order is

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to preserve the status quo pending a fuller hearing. See Fed. R. Civ. P. 65. “A preliminary

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injunction [or TRO]1 is an extraordinary remedy never awarded as of right,” and may only be

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awarded upon a clear showing that the plaintiff is entitled to relief. Winter v. Nat. Res. Def.

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Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a [TRO] must

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establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in

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the absence of preliminary relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Winter, 555 U.S. at 20. Because the first factor “is a

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threshold inquiry and is the most important factor,” a “court need not consider the other factors”

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if a movant fails to show a likelihood of success on the merits. Baird v. Bonta, 81 F.4th 1036,

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1040 (9th Cir. 2023) (internal quotation marks and citations omitted); see, e.g., Babaria, 87 F.4th

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at 980 (“We need not consider the remaining Winter factors because plaintiffs fail to show a

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likelihood of success on the merits.”).

Applicable Authority

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B.

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Plaintiff fails to establish the requisite factors to succeed on his request for a TRO. The

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undersigned notes Plaintiff is not likely to succeed on the merits of his claims as his claims

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appear to be time-barred under the two-year statute of limitations for § 1983 claims.

Analysis

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1 “The legal standards applicable to TROs and preliminary injunctions are substantially
identical.” Babaria v. Blinken, 87 F.4th 963, 976 (9th Cir. 2023) (quotations and citations
omitted).

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The statute of limitations for § 1983 claims is based on state law. Canatella v. Van De

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Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007). Federal courts in California have held that the

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state's statute of limitations for personal injury actions, which is two years, applies to Section

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1983 claims. Id. (applying two-year statute of limitations to the plaintiff’s breach of privacy- and

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confidentialiry-based claims); see Cal. Code Civ. P. § 335.1. Accordingly, Plaintiff’s § 1983

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claims are subject to a two-year statute of limitations under California Code of Civil Procedure §

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335.1. A.G. v. Cnty. of Siskiyou, No. 2:24-cv-01375-DJC-CKD, 2024 WL 4682417, at *1 (E.D.

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Cal. Nov. 5, 2024). Accrual of § 1983 claims is dictated by the “discovery rule” which provides

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that a claim has accrued “when the plaintiff knows or has reason to know of the injury that is the

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basis of the action and the cause of that injury.” Gregg v. Hawaii, Dept. of Public Safety, 870

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F.3d 883, 887 (9th Cir. 2017). This does not mean that a plaintiff must be aware of the full

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extent of the injuries for accrual to occur and a plaintiff must still be “diligent in discovering the

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critical facts.” Bibeau v. Pac. Nw. Rsch. Found. Inc., 188 F.3d 1105, 1108 (9th Cir. 1999). “For

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Fourth Amendment violations, federal law holds that a cause of action for illegal search and

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seizure accrues when the wrongful act occurs ... even if the person does not know at the time that

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the search was warrantless.” Bonelli v. Grand Canyon Univ., 28 F.4th 948, 952 (9th Cir. 2022).

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The abuse underlying Plaintiff’s claims allegedly began on July 2021 and Plaintiff alleges

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Defendant took other, unspecified action in December 2022 constituting a crime. (Doc. 1 at 5).

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The present action was filed on February 3, 2025. (See id.). Regardless of whether Plaintiff’s

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claims accrued in July 2021 or December 2022, the statute of limitations would have run before

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the complaint was filed in February 2025 and, thus, the complaint would be untimely.

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Accodingly, to proeed on these claims, Plaintiff must either establish that his claims accrued at a

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later date and/or that the limitations period for those claims should be equitably tolled.

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Here, for Plaintiff’s claims related to the unreasonable search of his electronic devices,

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the statute of limitations began to accrue “[o]n or around July 2021” when “local law

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enforcement [and] County of Kern officers start[ed] violating[.]” (Doc. 1 at 5). Plaintiff has not

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alleged whether his claims are tolled nor does the undersigned find any tolling statutes applicable

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here. Thus, it appears Plaintiff’s claims are time-barred under the statute of limitations, and

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Plaintiff therefore fails to establish that he is likely to succeed on the merits of his claims.

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Winter, 555 U.S. at 20.

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Aside from lacking a likelihood of prevailing on the merits, Plaintiff fails to establish that

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he is likely to suffer immediate and irreparable harm in the absence of preliminary injunctive

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relief. In Plaintiff’s motion for TRO, he requests “time until September 2025” to file a “brief

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with evidences” in support of his request for emergency protective relief. (Doc. 4 at 1). Plaintiff

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represents that he has evidence to “provide to the [C]ourt for unlawful changings in internal

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programming of [his] operating systems of phones and computers which [are] continuing …

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causing [him] irreplaceable physiological harm.” (Id. at 2). He asserts that “[t]he blocking from

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all online systems and block all communication … deprive to [his] online freedom.” (Id.).

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However, requesting “time until September 2025” to allow Plaintiff time to “brief[] the

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matters”—seven months from the date of this order—is fatal to establishing immediate and

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irreparable harm and is inapposite to the extraordinary remedy of a TRO, which seeks to protect

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the status quo for only a finite amount of time. See Fed. R. Civ. P. 65(b)(2) (“[A TRO] expires

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at the time after entry—not to exceed 14 days—that the court sets[.]”). Further, Plaintiff’s “long

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delay before seeking [a TRO] implies a lack of urgency and irreparable harm.”

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Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985). Because Plaintiff

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fails to plead or show he is likely to suffer immediate and irreparable injury other than general

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and conclusory allegations that his online data is being unlawfully monitored, Plaintiff’s TRO

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fails on this factor. Mazurek v. Armstrong, 529 U.S. 968, 972 (1997) (The likely harm must be

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supported by a “clear showing.”).

Oakland

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Accordingly, because Plaintiff failed to establish the threshold factors that he is likely to

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succeed on the merits of his claim or otherwise that he is likely to face immediate and irreparable

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harm, the undersigned recommends that Plaintiff’s motion for emergency temporary protective

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order (Doc. 4) be denied.

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III.

Motion for Expedited Treatment (Doc. 6)

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This Court does not have an expedited calendar. As of the date of this Order, the

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undersigned presides over more than 450 civil cases in various states of litigation. While the

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Court regrets the delays in the litigation of this action that are unavoidable given the tremendous

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judicial resource emergency experienced throughout this District, Plaintiff cites no authority—

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and the Court is aware of none—to persuade the undersigned that Plaintiff’s case merits

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expedited or favored treatment to the detriment of other cases pending on the Court’s docket.

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Accordingly, the Court will dney Plaintiff’s motion to expedite (Doc. 6).

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IV.

Order to Show Cause

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Separately, as noted above, the undersigned finds this action may be time-barred under

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the two-year statute of limitations pursuant to California Code of Civil Procedure § 335.1, and no

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tolling provisions appear applicable. Therefore, the undersigned will order Plaintiff to show

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cause in writing why this action should not be dismissed as time-barred.

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V.

Order on Construed Motions to Amend, for Subpoena, and to Seal/Seize (Docs. 7, 8)

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As noted above, Plaintiff filed a motion to add a second cause of action to his complaint

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for violation of 18 U.S.C. § 1512 and request for subpoena (Doc. 7) and a motion to add a

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purported third cause of action as a request to seal and seize (Doc. 8).

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In reviewing a pro se complaint, a court is to liberally construe the pleadings and accept

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as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94

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(2007). However, a court may deny a pro se plaintiff leave to amend where amendment would

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be futile. Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Cook,

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Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., 911 F2d 242, 247 (9th Cir. 1990)); see Lucas v.

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Dep’t of Corr., 66 F.3d 245, 248-49 (9th Cir. 1995) (holding that dismissal of a pro se complaint

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without leave to amend is proper only if it is clear that the deficiencies cannot be cured by

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amendment or after the pro se litigant is given an opportunity to amend).

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Insofar as Plaintiff moves for leave to amend his complaint to add causes of action, which

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he may do as a matter of right under Federal Rule of Civil Procedure 15(a)(1), granting such

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leave to add those proposed amendments would be futile. Specifically, Plaintiff seeks to add a

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second cause of action for violation of 18 U.S.C. 1512, a criminal statute that does not provide a

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private right of action. See 18 U.S.C. § 1512. Plaintiff, as a private individual, cannot pursue

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claims against Defendant under that criminal statute. See. e.g., Aldabe v. Aldabe, 616 F.2d 1089,

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1092 (9th Cir. 1980) (holding specific criminal provisions in the United States Code “provide no

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basis for civil liability”); Clinton v. Allison, No. 3:23-cv-01471-CAB-SBC, 2024 WL 1859956,

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at *10 (S.D. Cal. Apr. 29, 2024) (discussing plaintiff’s references to federal and state criminal

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statutes and finding “criminal statutes do not give rise to civil liability under section 1983”);

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Jones v. Cnty. of Sonoma, No. 23-cv-02730-CRB, 2024 WL 1354496, at *4 (N.D. Cal. Mar. 29,

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2024) (finding plaintiff “fails to state a claim under 18 U.S.C. § 1503 because the statute only

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applies to criminal cases and does not provide a civil cause of action”); Bland v. Gross, No. 1:20-

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cv-00542-DAD-BAM (PC), 2021 WL 120964, at *1 (E.D. Cal. Jan. 13, 2021) (“Title 18 of the

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United States Code is a criminal statute and does not provide individual plaintiffs with a private

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cause of action.”) (quotation and citation omitted).

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Additionally, Plaintiff’s purported third cause of action (Doc. 8) does not state a claim for

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relief, and instead seeks a “request for seal and seiz[ure]” which the undersigned construes as a

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separate motion for relief. Thus, the proposed amendments are futile. Further, Plaintiff’s

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proposed amendments fail to comply with Local Rule 220, which requires any amended pleading

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to be “retyped and filed so that it is complete in itself without reference to the prior or superseded

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pleading. No pleading shall be deemed amended or supplemented until this Rule has been

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complied with.” See E.D. Cal. Local Rule 220. Thus, Plaintiff’s motion to amend will be

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denied. Plaintiff is advised that should he seek to amend his complaint, the amended complaint

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must be complete in itself without reference to the prior or superseded pleading; Plaintiff must

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re-plead all elements of his claims, including all relevant facts.

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Plaintiff’s request for subpoena (Doc. 7) is improper as this case has not yet been

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scheduled nor has discovery commenced. Accordingly, that request will be denied. See E.D.

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Cal. Local Rule 250.5(d); Fed. R. Civ. P. 45. Additionally, Plaintiff’s construed requests to seal

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and “seize” are denied as improper. See E.D. Cal. Local Rule 141(b).

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VI.

Conclusion, Order, and Recommendations

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff is ordered to show cause in writing within 14 days from the date of service

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of this order why this action should not be dismissed as time-barred. Any failure by

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Plaintiff to respond to this Order may result in the recommendation that this

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action be dismissed for a failure to obey court orders and a failure to prosecute.

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Fed. R. Civ. P. 41(b) (stating that dismissal is warranted “[i]f the plaintiff fails to …

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comply with … a court order[.]”); see Hells Canyon Pres. Council v. U.S. Forest

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Serv., 403 F.3d 683, 689 (9th Cir. 2005); and

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2. Plaintiff’s motion to expedite (Doc. 6) and construed motions to amend and requests

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for subpoena, to seal, and for seizure (Docs. 7, 8) are DENIED.

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And it is HEREBY RECOMMENDED that:

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1. The Court DENY Plaintiff’s motion for emergency temporary protective order (Doc.

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4).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with a copy of these Findings and Recommendations, a party may file written

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objections with the Court. Local Rule 304(b). The document should be captioned, “Objections

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to Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without

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leave of Court and good cause shown. The Court will not consider exhibits attached to the

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Objections, but a party may refer to exhibits in the record by CM/ECF document and page

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number. Any pages filed in excess of the 15-page limitation may be disregarded by the District

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Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)(l)(C). A

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party’s failure to file any objections within the specified time may result in the waiver of certain

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rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

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IT IS SO ORDERED.

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Dated:

March 10, 2025

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UNITED STATES MAGISTRATE JUDGE