Feinberg-Tomahawk v. City and County of San Francisco et al

Filing 5

ORDER GRANTING EX PARTE TEMPORARY RESTRAINING ORDER re 1 Complaint filed by Elisheva Ananyah Feinberg-Tomahawk. Signed by Judge James Donato on 5/16/14. (lrcS, COURT STAFF) (Filed on 5/16/2014) (Additional attachment(s) added on 5/16/2014: # 1 Certificate/Proof of Service) (lrcS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ELISHEVA ANANYAH FEINBERGTOMAHAWK,

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Plaintiff,
ORDER GRANTING EX PARTE
TEMPORARY RESTRAINING ORDER

v.

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CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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Case No. 14-cv-02275-JD

Re: Dkt. No. 1

United States District Court
Northern District of California

Defendants.
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Plaintiff has filed a complaint and an ex parte application for a temporary restraining order

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(“TRO”)1 against Defendants City and County of San Francisco, San Francisco Department of

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Animal Care and Control (“SFDACC”), and two individual employees of SFDACC. Dkt. No. 1.
Plaintiff alleges that Defendants violated her First, Fourth, Fifth and Fourteenth

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Amendment rights when they refused to release her dog, NightShade, from the custody of

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SFDACC unless Plaintiff agreed to allow NightShade to be neutered. Id.at 1-2. SFDACC said

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that NightShade had to be neutered because he is a Staffordshire Terrier or Pit Bull, a member of a

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“dangerous breed.” Id. at 2. Plaintiff made a written request to SFDACC for a review and fair

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evaluation of NightShade’s breed and breeding permits. Id. at 8. SFDACC rejected her

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applications. Id. Plaintiff contends that NightShade is currently being held by SFDACC and is

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scheduled to be neutered on May 16, 2014. Id. at 4.

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Under Federal Rule of Civil Procedure 65(b), a court may issue an ex parte TRO if: (1) it

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clearly appears that immediate and irreparable injury, loss, or damage will result to the applicant

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before the adverse party or that party’s attorney can be heard in opposition; and (2) the applicant’s

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Because Plaintiff is proceeding pro se, her filings are to “liberally construed.” Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

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attorney certifies to the court in writing the efforts, if any, which have been made to give notice

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and the reasons supporting the claim that notice should not be required. Fed. R. Civ. Pro. 65(b);

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Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). Notice may be excused

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when “a known party cannot be located in time for a hearing.” McCord, 452 F.3d at 1131.

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Temporary restraining orders granted ex parte are to be “restricted to serving their underlying

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purpose of preserving the status quo and preventing irreparable harm just so long as is necessary

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to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415

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U.S. 423, 438-39, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); McCord, 452 F.3d at 1131.

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The Court finds Plaintiff has shown that, absent a temporary restraining order, immediate
and irreparable injury, loss, or damage will result before Defendants can be heard in opposition.

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United States District Court
Northern District of California

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Accordingly, Defendants are enjoined from neutering or disposing of NightShade for 10 days,

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until May 26, 2014, at 5:00 p.m.

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Plaintiff will serve all Defendants with the Complaint, associated filings, and this Order by

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no later than May 19, 2014 and will file a proof of service of same with the Court by no later than

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May 20, 2014. Once service has properly been effectuated, the Court will set a hearing for the

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matter. Defendants may apply to the Court for modification or dissolution of the instant Order

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upon two days’ notice to Plaintiff.

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IT IS SO ORDERED.
Dated: May 16, 2014
______________________________________
JAMES DONATO
United States District Judge

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