Jennings v. Department of Justice et al

Filing 17

ORDER RE APPLICATION FOR TRO AND FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION (whalc2, COURT STAFF) (Filed on 3/13/2009) (Additional attachment(s) added on 3/13/2009: # 1 Certificate of Service) (dt, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 RICHARD JENNINGS, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. / ORDER RE APPLICATION FOR TRO AND FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION No. C 08-05518 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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Plaintiff opened this case by filing a document entitled "application and declaration for temporary restraining order and [proposed] order to show cause re preliminary injunction and complaint." The filing was docketed both as a complaint and as a motion for a TRO or preliminary injunction. The action was subsequently reassigned to the undersigned. Defendant responded to the complaint by filing a motion (1) to dismiss the action and (2) for pre-filing review of plaintiff's future lawsuits. A hearing on the motion is scheduled for April 2, 2009. Plaintiff subsequently filed a motion to shorten time re request for temporary restraining order. This case is the latest of many plaintiff has filed in this district against the DOJ, or divisions or employees thereof (Nos. 05-1690; 05-02726; 05-3986; 06-6159; 08-2923; 084652). The earliest of these cases was assigned to the undersigned and, like this one, many of plaintiff's subsequent actions have been related thereto. Plaintiff's lawsuits have all raised the

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same general allegations: that the DOJ has harassed plaintiff or invaded his privacy by following him, monitoring his conversations or other similar conduct. The order of dismissal in Case No. 05-3986 summarized the actions to date. It noted that plaintiff's previously filed actions had been dismissed as lacking factual or legal merit, and it dismissed the pending action as raising virtually identical allegations. It further ordered that plaintiff "was not to file another complaint with substantially the same allegations." C. 053986, Dkt. No. 12 (Dec. 2, 2005). Plaintiff subsequently filed two further actions, both of which were dismissed sua sponte. Plaintiff then submitted yet another filing, an application for TRO, but in that instance no complaint was filed or served. The ex parte application for a TRO and order to show cause re preliminary injunction was denied by Judge Wilken for failure to make the requisite showing. C. 08-4652, Dkt. No. 8 (Oct. 10, 2008). This action followed shortly thereafter. A party seeking injunctive relief generally must establish (1) a combination of probable success on the merits and a likelihood of irreparable harm, or (2) that serious questions regarding the merits exist and the balance of hardships tips sharply in the moving party's favor. See " The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008); Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008). An ex parte TRO is appropriate only if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." FRCP 65(b). Like plaintiff's TRO filed just two months earlier, which raised substantially similar allegations, plaintiff's most recent motion for a TRO fails to make a sufficient showing of likely success on the merits and of irreparable harm to justify the requested injunctive relief. Plaintiff's motion for a TRO and application to show cause re: preliminary injunction is therefore DENIED.

United States District Court

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For the Northern District of California

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2

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Plaintiff is reminded that defendant's motion to dismiss and motion for a pre-filing order remain pending. Although Civil Local Rule 7-3 normally requires the opposition brief to be filed twenty-one days in advance of the noticed date (April 2), plaintiff may submit any opposition he wishes to file no later than MARCH 19, 2009. Any reply brief defendant wishes to submit must be filed no later than MARCH 26, 2009.

IT IS SO ORDERED.

Dated: March 13, 2009.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

United States District Court

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For the Northern District of California

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