Blackshire v. Sacramento County Sheriff

Filing 7

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/1/17 ORDERING that the Clerk's Office randomly assign a district judge to this case in order to rule on these findings and recommendations; RECOMMENDING that that plaintiff's emergency motion for temporary restraining order (ECF No. 5 ) be denied. Randomly assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK BLACKSHIRE,

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Plaintiff,

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v.

No. 2:16-cv-02538 DB

ORDER AND FINDINGS AND
RECOMMENDATIONS

SACRAMENTO COUNTY SHERIFF,
Defendant.

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Plaintiff is proceeding pro se with a civil rights action under 42 U.S.C. § 1983 alleging

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that he was imprisoned by the Sacramento County Sheriff beyond his release date. (ECF No. 1.)

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Plaintiff is not currently incarcerated. (Id.) There is presently no district judge assigned to this

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case, so, in addition to issuing findings and recommendations on plaintiff’s motion for temporary

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restraining order below, the undersigned will order that the clerk’s office assign a district judge to

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issue an order on the motion.

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On February 23, 2017, plaintiff filed an emergency motion for temporary restraining

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(TRO) order seeking to enjoin the sale of three homes scheduled for February 27, 2017. (ECF

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No. 5.) Plaintiff’s motion alludes to other cases that he claims need to be closed to stop the sale.

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(Id. at 1.) Additionally, the motion states that plaintiff has filed two motions for TRO already,

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which are still pending. (Id. at 2.) The alleged TRO motions plaintiff is referring to were not

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filed in this case. Plaintiff does not provide any information as to what these cases are, what
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court they are currently in front of, nor who these TROs seek to enjoin. (Id.) Furthermore,

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plaintiff’s motion for TRO provides no legal reasoning as to why this court should enjoin the sale

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of these homes, nor does it provide a factual background as to what homes are being sold, who

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owns them, who is selling them, and how they are related to the complaint in this action, which

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seeks relief based upon defendant’s alleged holding of plaintiff after his scheduled release date.

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A temporary restraining order is an extraordinary measure of relief that a federal court

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may impose without notice to the adverse party only 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.” See Fed. R. Civ. P. 65(b)(1)(A).

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Local Rule 231(a) states that “[e]xcept in the most extraordinary of circumstances, no temporary

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restraining order shall be granted in the absence of actual notice to the affected party and/or

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counsel[.]”

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Additionally, Local Rule 231(c) requires a motion for TRO to be accompanied by a brief

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on all relevant legal issues; an affidavit in support of the existence of an irreparable injury; an

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affidavit detailing the notice of efforts to effect notice to the affected parties or counsel or

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showing good cause why notice should not be given; a proposed temporary restraining order with

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a provision for a bond; a proposed order with blanks for fixing the time and date for hearing a

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motion for preliminary injunction; the date for the filing of responsive papers, the amount of the

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bond, if any, and the date and hour of issuance; and in all instances in which a temporary

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restraining order is requested ex parte, the proposed order shall further notify the affected party of

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the right to apply to the Court for modification or dissolution on two (2) days’ notice or such

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shorter notice as the Court may allow. Plaintiff’s motion for TRO is not accompanied by any of

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these documents.

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The court cannot issue a TRO in the absence of any legal or factual justification. The

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party seeking a TRO must show that “he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

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favor, and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109,

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1127 (9th Cir. 2009). The propriety of a request for injunctive relief hinges on a significant threat
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of irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldrige,

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844 F.2d 668, 674 (9th Cir. 1988). Not only does plaintiff’s motion fail to meet the legal

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standards for a TRO, but it does not even reference these standards as there is no legal brief

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accompanying the motion. Accordingly, plaintiff’s motion should be denied as it is wholly

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inadequate, factually and legally.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that plaintiff’s emergency

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motion for temporary restraining order (ECF No. 5) be denied. Additionally, IT IS HEREBY

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ORDERED that the clerk’s office randomly assign a district judge to this case in order to rule on

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these findings and recommendations.

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These findings and recommendations will be 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. The document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may result in waiver of

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the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 1, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / blac.2538.tro

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