Darling v. Powell

Filing 4

ORDER signed by District Judge Troy L. Nunley on 8/16/17 ORDERING the Plaintiff's application for a temporary restraining order (ECF No. 3 ) is hereby DENIED without prejudice.(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOMERY ARTIMESE DARLING,

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No. 2:17-cv-01692-TLN-EFB

Plaintiff,
v.
MICHAEL JAMES POWELL,

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ORDER DENYING PLAINTIFF’S
APPLICATION FOR A TEMPORARY
RESTRAINING ORDER

Defendant.

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This matter is before the Court on Plaintiff Tomery Artimese Darling’s (“Plaintiff”)

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Application for Temporary Restraining Order (ECF No. 3). For the reasons set forth below,

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Plaintiff’s application is DENIED.

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I.

INTRODUCTION

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On August 15, 2017, Plaintiff filed a complaint. (ECF No. 1.) She alleges Defendant

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Michael James Powell (“Defendant”) is concealing her children from her and on July 30, 2017,

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moved the children to an undisclosed location. (ECF No. 1 at 5.) Plaintiff alleges Defendant’s

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“conduct directly caused third party physical violence and/or emotional injury to the children.”

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(ECF No. 1 at 5.) Plaintiff filed her application for a temporary restraining order on the same day

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she filed her complaint. (ECF No. 3.) She requests a TRO for the following reasons:

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To restrain Defendant, [] from (i) obeying Michigan Judgment he
knowingly and willfully agreed to on November 5, 2010 (ii) forcing
separation between Plaintiff and her two children (iii) trespassing
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upon the constitutional right of the children to maintain a
relationship with their natural mother (iv) taking any action or in
action [sic] that would adversely impact plaintiff exercising her
Right to he care, custody, and control of the children (v) employing
unwarranted state government interference in to private family
affairs without the written consent of mother (vi) making
knowingly false statements of child neglect or abuse (vii) taking
any action or inaction detrimental to the Rights of the plaintiff and
the children to exercise religious freedom, and education (viii)
interfering with full restoral of Plaintiff’s missed visitation and
parenting before returning status quo (viiii) [sic] an order requiring
defendant to show cause why a preliminary injunction should not
issue to restrain defendant while this action is pending.

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II.

LEGAL STANDARD

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The same legal standard applies to both preliminary injunctions and temporary restraining

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

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overruled on other grounds, Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).

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Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

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showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22 (citing Mazurek v.

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Armstrong, 520 U.S. 968, 972 (1997) (per curiam)).

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Plaintiff must show four things to receive a preliminary injunction or temporary

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restraining order. Winter, 555 U.S. at 20. First, Plaintiff must show that he is likely to suffer

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irreparable harm in the absence of preliminary relief. Id. Second, Plaintiff must show that he is

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likely to succeed on the merits. Id. Third, Plaintiff must show that the balance of equities tips in

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his favor. Id. Finally, Plaintiff must show that an injunction is in the public interest. Id. Plaintiff

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must “make a showing on all four prongs” of Winter to obtain a preliminary injunction. Alliance

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for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). In the Ninth Circuit, courts

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apply a sliding-scale approach. Id. Under this approach, a preliminary injunction may issue

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where Plaintiff has raised “serious questions on the merits” — rather than a more complete

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showing that he is likely to succeed on the merits — so long as the balance of hardships tips

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sharply in his favor and he satisfies the other two Winter prongs. Id.

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III.

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Plaintiff’s motion fails both procedurally and substantively. Procedurally, Plaintiff has

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DISCUSSION

not complied with Eastern District Local Rule 231, which governs temporary restraining orders.
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Rule 231 requires, among other things, that the party seeking a temporary restraining order file

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the following documents with the Court:

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(1) a complaint; (2) a motion for temporary restraining order; (3) a
brief on all relevant legal issues presented by the motion; (4) an
affidavit in support of the existence of an irreparable injury; (5) an
affidavit detailing the notice or efforts to effect notice to the
affected parties or counsel or showing good cause why notice
should not be given . . .; (6) a proposed temporary restraining order
with a provision for a bond . . .; (7) a proposed order with blanks
for fixing the time and date for hearing a motion for preliminary
injunction, the date for filing the responsive papers, the amount of
the bond, if any, and the date and hour of issuance . . .; and (8) in all
instances in which a temporary restraining order is requested ex
parte, the proposed order shall further notify the affected party of
the right to apply to the Court for modification or dissolution on
two (2) days’ notice or such shorter notice as the Court may allow.”

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L.R. 231(c). Plaintiff has not filed all of the required items. For example she has not filed “a

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brief on all relevant legal issues presented by the motion.”1 Id. Additionally, her proposed order

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does not comply with Local Rule 231(c)(6). Her motion may be denied on these grounds alone.

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See Holcomb v. California Bd. of Psychology, No. 2:15-cv-02154-KJM-CKD, 2015 WL

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7430625, at *3 (E.D. Cal. Nov. 23, 2015) (indicating the Court had previously denied “plaintiff’s

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motion without prejudice for failure to provide the required documents in compliance with Local

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Rule 231(c)”).
Substantively, Plaintiff’s request also falls short. None of Plaintiff’s submissions discuss,

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let alone show, she is likely to succeed on the merits, the balance of equities tips in her favor or

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that an injunction is in the public interest. It follows that Plaintiff cannot “make a showing on all

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four prongs” of Winter. Alliance for the Wild Rockies, 632 F.3d at 1135. The Court need not

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analyze each prong of Winter where Plaintiff clearly cannot carry her burden. Martin v. Select

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Portfolio Servicing, Inc., No. 2:16-cv-01860-TLN-KJN, 2016 WL 4211520, at *5 (E.D. Cal. Aug.

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10, 2016). In short, Plaintiff has not satisfied Winter and her motion must be denied.

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Plaintiff filed one document titled Application for Temporary Restraining Order. (ECF No. 3.) The Court
takes this document to be Plaintiff’s motion pursuant to Local Rule 231(c)(2). The remainder of Plaintiff’s
documents do not present legal arguments such that they might be considered a brief under 231(c)(3).

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IV.

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For the reasons discussed above, Plaintiff’s application for a temporary restraining order

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CONCLUSION

(ECF No. 3) is hereby DENIED without prejudice.
IT IS SO ORDERED.

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Dated: August 16, 2017

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Troy L. Nunley
United States District Judge

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