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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RHONDA IREDIA-ORTEGA, 12 13 14 15 16 No. 2:17-cv-0843 MCE CKD PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS BAKER RESIDENTIAL ACADEMIC PROGRAM UNIVERSITY OF CALIFORNIA, et al., Defendant. 17 18 Plaintiff has filed a motion for a temporary restraining order. ECF No. 5. The standards 19 governing the issuance of temporary restraining orders are "substantially identical" to those 20 governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D. 21 Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir.2001). Therefore, "[a] plaintiff seeking a 22 [TRO] must establish that he is likely to succeed on the merits, that he is likely to suffer 23 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, 24 and that an injunction is in the public interest." Am. Trucking Ass'n, Inc. v. City of Los Angeles, 25 559 F.3d 1046, 1052 (9th Cir.2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 26 7 (2008)). "A preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious 27 questions going to the merits were raised and the balance of hardships tips sharply in the 28 plaintiff’s favor." Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-50 (9th Cir. 1 1 2010) (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en banc)). A TRO is 2 "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is 3 entitled to such relief." Winter, 129 S. Ct. at 376. 4 The Ninth Circuit has reiterated that under either formulation of the principles, if the 5 probability of success on the merits is low, preliminary injunctive relief should be denied: 6 Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of 7 hardships tips decidedly in favor of the moving party, it must be shown as an irreducible 8 minimum that there is a fair chance of success on the merits." Johnson v. California State Bd. of 9 Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin v. International Olympic 10 Comm., 740 F.2d 670, 675 (9th Cir. 1984)). 11 Plaintiff has failed to file the documents required under Local Rule 231(c). In addition, by 12 order filed April 26, 2017, plaintiff’s complaint was dismissed with leave to amend. ECF No. 4. 13 In that order, the court found that the allegations in plaintiff’s complaint were so vague and 14 conclusory that the court was unable to determine whether the current action is frivolous or fails 15 to state a claim for relief. Under these circumstances, the court cannot access the likelihood of 16 plaintiff prevailing on the merits. Plaintiff has failed to meet the standards for issuance of a 17 temporary restraining order. Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for temporary 18 19 restraining order (ECF No. 5) be denied. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 3 Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 Dated: May 4, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 4 iredia0843.tro 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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