Sherman v. City of Davis

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/18/2012 RECOMMENDING that plaintiff's 23 motion for injunctive relief, filed 3/26/2012 be denied. Motion referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH A. SHERMAN,
Plaintiff,

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vs.

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No. CIV S- 11-0820 JAM GGH PS

CITY OF DAVIS,
Defendant.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is proceeding in this action pro se and in forma pauperis. This

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proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1).

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Before the court is plaintiff’s motion for injunctive relief, filed March 26, 2012. For the reasons

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stated herein, the motion should be denied.1

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I. Legal Standards for Temporary Restraining Order / Preliminary Injunction
The standards governing the issuance of temporary restraining orders are

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“substantially identical” to those governing the issuance of preliminary injunctions. Stuhlbarg

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Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir.2001).

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Therefore, “[a] plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits,

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A response from defendant is unnecessary.
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that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

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equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass'n,

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Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res.

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Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008)). “A preliminary injunction is

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appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were

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raised and the balance of hardships tips sharply in the plaintiff’s favor.” Alliance for the Wild

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Rockies v. Cottrell, 632 F.3d 1127. 1134-35 (9th Cir. 2011) (quoting Lands Council v. McNair,

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537 F.3d 981, 97 (9th Cir. 2008) (en banc), and finding that the “serious questions” test remain

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valid after Winter). A TRO is “an extraordinary remedy that may only be awarded upon a clear

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showing that the plaintiff is entitled to such relief.” Winter, 129 S. Ct. at 376.

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II. Analysis
The motion for injunctive relief refers to documents previously filed with the

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court in case number Civ.S.04-2320, a case which was closed in 2008, and which appeal was

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denied in 2010 by the Ninth Circuit Court of Appeals. These documents are dated variously

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from 2006 through 2008. Plaintiff also refers to actions which he claims support his “affidavit”

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of irreparable injury, all of which allegedly occurred in 2008 or earlier. Although plaintiff

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contends that defendant’s policies have resulted in “violative acts against plaintiff,” which have

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continued to the present, plaintiff has not provided any facts showing that he has recently been

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subjected such acts, or that he will suffer irreparable harm in the absence of injunctive relief.

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Nor has he shown that there are serious questions in this case or that the balance of hardships tips

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in his favor. This court’s recent findings and recommendations, issued March 6, 2012, has for

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the most part addressed the merits and discredits these factors.

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III. Conclusion
Accordingly, IT IS RECOMMENDED that: plaintiff’s motion for injunctive

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relief, filed March 26, 2012, (dkt. no. 23), be denied.

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These findings and recommendations are submitted to the United States District

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

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fourteen (14) days after being served with these findings and recommendations, any party may

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file written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven (7) days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 18, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076:Sherman0820.inj.wpd

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