Iredia-Ortega v. Baker Residential Academic Program University of Cal et al

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/4/17 recommending that plaintiff's motion for temporary restraining order 5 be denied. F&R referred to District Judge Morrison C. England, Jr.. Objections to F&R due within fourteen days.(Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RHONDA IREDIA-ORTEGA,

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No. 2:17-cv-0843 MCE CKD PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

BAKER RESIDENTIAL ACADEMIC
PROGRAM UNIVERSITY OF
CALIFORNIA, et al.,
Defendant.

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Plaintiff has filed a motion for a temporary restraining order. ECF No. 5. The standards

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governing the issuance of temporary restraining orders are "substantially identical" to those

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governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D.

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Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir.2001). Therefore, "[a] plaintiff seeking a

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[TRO] must establish that he is likely to succeed on the merits, that he is likely to suffer

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

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and that an injunction is in the public interest." Am. Trucking Ass'n, Inc. v. City of Los Angeles,

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559 F.3d 1046, 1052 (9th Cir.2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S.

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7 (2008)). "A preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious

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questions going to the merits were raised and the balance of hardships tips sharply in the

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plaintiff’s favor." Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-50 (9th Cir.
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2010) (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en banc)). A TRO is

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"an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

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entitled to such relief." Winter, 129 S. Ct. at 376.

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The Ninth Circuit has reiterated that under either formulation of the principles, if the

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probability of success on the merits is low, preliminary injunctive relief should be denied:

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Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of

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hardships tips decidedly in favor of the moving party, it must be shown as an irreducible

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minimum that there is a fair chance of success on the merits." Johnson v. California State Bd. of

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Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin v. International Olympic

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Comm., 740 F.2d 670, 675 (9th Cir. 1984)).

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Plaintiff has failed to file the documents required under Local Rule 231(c). In addition, by

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order filed April 26, 2017, plaintiff’s complaint was dismissed with leave to amend. ECF No. 4.

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In that order, the court found that the allegations in plaintiff’s complaint were so vague and

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conclusory that the court was unable to determine whether the current action is frivolous or fails

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to state a claim for relief. Under these circumstances, the court cannot access the likelihood of

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plaintiff prevailing on the merits. Plaintiff has failed to meet the standards for issuance of a

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temporary restraining order.
Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for temporary

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restraining order (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. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 4, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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