Maxey v. Federal Bureau of Investigation, et al.

Filing 5

ORDER signed by District Judge Troy L. Nunley on 12/27/2013 ORDERING 1 Motion for TRO is DENIED. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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James C. Maxey,

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Petitioner,

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No. 2:13-cv-02662-TLN-DAD

v.

ORDER

Federal Bureau of Investigation and U.S.
Department of Homeland Security et al.,
Respondents.

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This matter is before the Court on a Petition for a Temporary Restraining Order filed by

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Plaintiff and Petitioner James C. Maxey (“Plaintiff”). (ECF No. 1.) Plaintiff is a pro se litigant.1

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Plaintiff “petitions this Court for an emergency hearing and an order compelling the Federal

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Bureau of Investigation and U.S. Department of Homeland Security [sic] immediately cease and

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desist the 24-hour surveillance of the petitioner.” (ECF No. 1 at 1:14–18.) Plaintiff names as

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Respondents the “Federal Bureau of Investigation, U.S. Department of Homeland Security,

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George Bush I, George Bush II, Richard Cheney, and FBI agent Jennifer Silva.” (ECF No. 1 at

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2:3–6.)

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See Temporary Restraining Order (TRO) Checklist, ECF No. 1-2 (checking box for “Filing
party is acting in pro se”); but compare ECF No. 1 (identifying Plaintiff as “James C. Maxey,
ESQ.”).
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Plaintiff filed a similar action2 and request for an emergency hearing nine days ago before

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this Court in case number 2:13-cv-02620-TLN-DAD. This Court denied Plaintiff’s request for an

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emergency hearing. See Maxey v. The United States of America, No. 2:13-cv-02620-TLN-DAD

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(E.D. Cal. Dec. 20, 2013).
For similar reasons, Plaintiff’s Petition for a Temporary Restraining Order is also denied

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in this action. As a threshold matter, Plaintiff has failed to comply with the requirements of Local

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Rule 231(c) with respect to temporary restraining orders, evidenced by his additional failure to

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complete the Court’s TRO checklist. (See ECF No. 1-2 at 1–2.)

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Furthermore, Plaintiff has not articulated why he could not have sought injunctive relief at

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an earlier date. See L.R. 231(b) (“In considering a motion for a temporary restraining order, the

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Court will consider whether the applicant could have sought relief by motion for preliminary

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injunction at an earlier date without the necessity for seeking last-minute relief by motion for

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temporary restraining order.”). Plaintiff alleges that he has been subject to 24-hour surveillance

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since the Bush Administration; he also alleges that medical procedures were performed on him

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while he was living in the United Kingdom, with no reference to time.3 Accordingly, the Court

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concludes that Plaintiff’s unexplained delay in bringing his Petition constitutes laches, he has

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unreasonably delayed in seeking injunctive relief, and his actions contradict the allegations of

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irreparable injury. See L.R. 231(b) (“Should the Court find that the applicant unduly delayed in

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seeking injunctive relief, the Court may conclude that the delay constitutes laches or contradicts

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the applicant's allegations of irreparable injury and may deny the motion solely on either

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ground.”).

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Finally, Plaintiff does not satisfy the stringent standard to justify ex parte injunctive relief.

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To qualify for a temporary restraining order, at minimum the moving party must demonstrate (1)

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a probability of success on the merits and the possibility of irreparable harm, and (2) that the

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Based on Local Rule 123, the two actions are both assigned to the undersigned. (See Minute
Order, ECF No. 3.)
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According to Plaintiff’s complaint in case number 2:13-cv-02620 some medical fraud and
malpractice took place in 1976. It is not clear whether this is the same conduct that Plaintiff
refers to in this action.
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lawsuit raises serious questions and the balance of hardship tips sharply in the movant’s favor.

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See Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir. 1986); Regents of Univ. of Cal.

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v. American Broadcasting Companies, Inc., 747 F.2d 511, 515 (9th Cir. 1984); see also Fed. R.

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Civ. P. 65. Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S.

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519, 520–21 (1972), they are not immune from the Federal Rules of Civil Procedure. See Ghazali

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v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995). Plaintiff’s Petition fails to demonstrate a probability

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of success on the merits, a possibility of irreparable harm, or that this lawsuit raises serious

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questions of public interest with the balance of hardships tipping in his favor.

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Therefore, Plaintiff’s Petition for a Temporary Restraining Order is DENIED.
IT IS SO ORDERED.

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Dated: December 27, 2013

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