Iredia-Ortega v. County of Sac Human Asst. Welfare et al

Filing 5

ORDER signed by District Judge Morrison C. England, Jr on 5/3/2017 DENYING 4 Motion for TRO. The Court declines to set a hearing for preliminary injunction. (Washington, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Rhonda Iredia-Ortega,

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No. 2:17cv00842-MCE-KJN

Plaintiff,
v.

ORDER

County of Sacramento Human Asst.
Welfare, Expedited Cal Fresh, Calwin
Budget,

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Defendants.

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On April 21, 2017 Plaintiff Rhonda Iredia-Ortega filed a Complaint in this Court.

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ECF No. 1. On May 2, 2017, Plaintiff filed a Motion for Temporary Restraining Order

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(“TRO”) seeking monetary relief, emergency funding, a name change, phone service,

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and dental services. ECF No. 4. For the reasons set forth below, Plaintiff’s Motion for

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TRO is DENIED.

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As a preliminary matter, Eastern District Local Rule 231 governs Temporary

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Restraining Orders. Rule 231(a) provides that “except in the most extraordinary of

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circumstances, no temporary restraining order shall be granted in the absence of actual

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notice to the affected party and/or counsel, by telephone or other means, or a sufficient

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showing of efforts made to provide notice.” E.D. Cal. Local R. 231(a) (citing Fed. R. Civ.

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P. 65(b)). Rule 231(c) additionally requires the filing of, among other things, “an affidavit
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detailing the notice or efforts to effect notice to the affected parties or counsel or showing

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good cause why notice should not be given.” Id. 231(c)(5).

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Furthermore, subsection (b) of Rule 231 states that “[i]n considering a motion for

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a temporary restraining order, the Court will consider whether the applicant could have

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sought relief by motion for preliminary injunction at an earlier date without the necessity

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for seeking last minute relief by motion for temporary restraining order. Should the Court

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find that the applicant unduly delayed in seeking injunctive relief, the Court may

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conclude that the delay constitutes laches or contradicts the applicant’s allegations of

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irreparable injury and may deny the motion solely on either ground.” Id. 231(b).

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Finally, subsection (c) lists the documents to be filed by a party seeking a

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temporary restraining order. Id. 231(c). Under that rule, “[n]o hearing on a temporary

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restraining order will normally be set unless” certain documents are provided to the Court

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and to the affected parties or their counsel. Id. Those documents are: (1) a complaint;

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(2) a motion for a temporary restraining order; (3) a brief on all relevant legal issues

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presented by the motion; (4) an affidavit in support of the existence of an irreparable

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injury; (5) an affidavit detailing the notice or efforts to effect notice to the affected parties

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or counsel or showing good cause why notice should not be given; (6) a proposed

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temporary restraining order with a provision for a bond; (7) a proposed order with blanks

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for fixing the time and date for hearing a motion for preliminary injunction, the date for

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the filing of responsive papers, the amount of the bond, if any, and the date and hour of

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issuance; and (8) where the TRO is requested ex parte, the proposed order shall further

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notify the affected party of the right to apply to the Court for modification or dissolution

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on two (2) days’ notice or such shorter notice as the Court may allow. Id.

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In the present case, Plaintiff has failed to meet the requirements of Rule 231.

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First, although Plaintiff indicates that she provided notice of the TRO to Defendants, she

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has not filed the required affidavit establishing as much. Indeed, Plaintiff responded

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“yes” on the TRO Checklist to the question of whether notice has been provided, but

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then only lists one of three named defendants on that checklist. It is not clear to the
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Court that notice has been provided to that one defendant, let alone the other two

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named defendants, or the other parties referenced in Plaintiff’s Complaint and Motion.

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See ECF Nos. 1 and 4 (including allegations against not only the named County

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assistance programs, but also a bank, T-Mobile, Baker Residential Academic, Progress

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House Nevada City, and an individual from Progress House). Additionally, though

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Plaintiff also indicates in her papers that she will suffer irreparable harm absent the

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requested relief, she has not filed this required affidavit either. Lastly, it appears to the

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Court that Plaintiff has delayed in bringing this action, cutting against any imminency

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argument. Plaintiff in fact admits in her TRO checklist that the action could have been

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brought sooner, that she has been trying to work with the DOJ since 2016, that she has

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previously been to state court regarding her concerns, and that she received a letter in

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March 2017 saying she does not have a case number or court date in state court.

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Based on this timeline, the Court finds emergency relief to be inappropriate. Under

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these circumstances, Plaintiff’s request may be denied on procedural grounds alone.

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As for the merits of Plaintiff’s motion, the purpose of a temporary restraining order

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is to preserve the status quo pending the complete briefing and thorough consideration

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contemplated by full proceedings pursuant to a preliminary injunction. See Granny

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Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining

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orders “should be restricted to serving their underlying purpose of preserving the status

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quo and preventing irreparable harm just so long as is necessary to hold a hearing, and

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no longer”); see also Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th

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Cir. 2006); Dunn v. Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. April

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19, 2010).

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Issuance of a temporary restraining order, as a form of preliminary injunctive

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relief, is an extraordinary remedy, and Plaintiff has the burden of proving the propriety of

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such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general, the

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showing required for a temporary restraining order and a preliminary injunction are the

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same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7
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(9th Cir. 2001).

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The party requesting preliminary injunctive relief must show that “he is likely to

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

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

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the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20

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(2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter).

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The propriety of a TRO hinges on a significant threat of irreparable injury that must be

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imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th

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Cir. 1988).

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Alternatively, under the so-called sliding scale approach, as long as the Plaintiff

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demonstrates the requisite likelihood of irreparable harm and shows that an injunction is

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in the public interest, a preliminary injunction can still issue so long as serious questions

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going to the merits are raised and the balance of hardships tips sharply in Plaintiff’s

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favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011)

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(concluding that the “serious questions” version of the sliding scale test for preliminary

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injunctions remains viable after Winter).

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Plaintiff has not shown that a TRO is justified under these guidelines. First,

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nothing in Plaintiff’s Complaint or Motion indicates that Plaintiff is facing an imminent

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threat that could be avoided or remedied by issuance of a TRO. The Court is

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sympathetic to Plaintiff’s stated need for dental treatment, but Plaintiff has not

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established that an imminent threat exists. As discussed above, it appears Plaintiff has

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been attempting to address her concerns for some time and nothing has changed so

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recently as to now justify the emergency relief represented by a TRO. Plaintiff’s request

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may accordingly be denied on grounds that she has not identified a sufficient imminent

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threat.

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In addition, the Court finds Plaintiff has not established a likelihood of success on

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the merits of her claims, nor has she raised serious questions going to their merits. To

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the contrary, the Court is unclear as to what specific claims Plaintiff pursues, the bases
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for those claims, or the exact identity of the defendants against whom those claims are

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raised. For this additional reason, Plaintiff’s request is denied.

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For the reasons set forth above, Plaintiff’s Motion for Temporary Restraining

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Order, ECF No. 4, is DENIED. The Court declines to set a hearing for preliminary

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injunction.

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IT IS SO ORDERED.
Dated: May 3, 2017

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