McGee v. State of California et al

Filing 8

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/10/2016 RECOMMENDING that the 5 Motion for Injunctive Relief be denied; REFERRING this matter to Judge John A. Mendez; ORDERING that any objections be filed and served within fourteen days. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFERSON A. McGEE,

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No. 2:16-cv-1796-JAM-EFB PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,
Defendants.

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On August 4, 2016, plaintiff filed a motion for a temporary restraining order to prohibit

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defendants from, among other things, participating in a racially motivated conspiracy; using “law

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enforcement programs and activities receiving” federal financial assistance to discriminate

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against plaintiff; conspiring with “other persons to [commit] attempted murder, kidnaping,

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torture,” and various other crimes; and refusing to protect plaintiff and his property. ECF No. 5.

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As discussed below, plaintiff’s motion for injunctive relief must be denied.

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A temporary restraining order may be issued upon a showing “that immediate and

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irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

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in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the

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status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no

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longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974).

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“The standards for granting a temporary restraining order and a preliminary injunction are

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identical.” Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf.
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Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)

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(observing that an analysis of a preliminary injunction is “substantially identical” to an analysis of

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a temporary restraining order).

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A preliminary injunction will not issue unless necessary to prevent threatened injury that

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would impair the courts ability to grant effective relief in a pending action. Sierra On-Line, Inc.

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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching

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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc.,

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326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a party

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must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm in 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.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

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2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth Circuit has

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also held that the “sliding scale” approach it applies to preliminary injunctions—that is, balancing

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the elements of the preliminary injunction test, so that a stronger showing of one element may

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offset a weaker showing of another—survives Winter and continues to be valid. Alliance for Wild

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Rockies v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). “In other words, ‘serious questions

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going to the merits,’ and a hardship balance that tips sharply toward the plaintiff can support

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issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.

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Plaintiff filed this action against the State of California, County of Sacramento, City of

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Sacramento, Sacramento Elite Security, Bridgeport Homeowners Association, Associa of

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Northern California, Sean Swarthout, and Gary Swarthout, Jr. ECF No. 1. The complaint alleges

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claims for violations of 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, 2000, and California Civil

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Code § 51 based on an alleged conspiracy to discriminate against African Americans. Id.

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However, plaintiff does not establish that he is likely to succeed on his claims. His

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complaint rests largely on vague and conclusory allegations of a vast conspiracy between the

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State of California, Sacramento County, the City of Sacramento, and private parties. See

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generally ECF No. 1. “The ‘irreducible minimum,’ however, is that the moving party
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demonstrate ‘a fair chance of success on the merits’ or ‘questions . . . serious enough to require

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litigation.” Sports Form, Inc. v. United Press Intern., Inc., 696 F.2d 750, 753 (9th Cir. 1982)

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(quoting Benda v. Grand Lodge of International Association of Machinists & Aerospace Workers,

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584 F.2d 308, 315 (9th Cir. 1978)). “No chance of success at all . . . will not suffice.” Id. Here

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plaintiff’s complaint is devoid of factual allegations that, if accepted as true, would demonstrate

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the existence of a conspiracy or support a cause of action. Thus, plaintiff fails to satisfy the

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likelihood of success prong of the standard for a temporary restraining order.

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Furthermore, plaintiff fails to demonstrate that the injunction sought is necessary to
preserve the court’s ability to grant effective relief on his claims and that it is the least intrusive

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means for doing so. He only generally claims that he will suffer irreparable harm if an injunction

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does not issue, without identifying the specific harm he will suffer. He also fails to present

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evidence establishing that the balance of equities tips in his favor. Nor is there an adequate

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showing that the requested injunctive relief is in the public interest. Thus, plaintiff has not made

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the showing required to meet his burden as the party moving for injunctive relief, and his motion

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must be denied.

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Accordingly, it is hereby RECOMMENDED that plaintiff’s motions for injunctive relief
(ECF No. 5) be denied.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 10, 2016.

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