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).

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELISHEVA ANANYAH FEINBERGTOMAHAWK, 8 Plaintiff, ORDER GRANTING EX PARTE TEMPORARY RESTRAINING ORDER v. 9 10 CITY AND COUNTY OF SAN FRANCISCO, et al., 11 Case No. 14-cv-02275-JD Re: Dkt. No. 1 United States District Court Northern District of California Defendants. 12 Plaintiff has filed a complaint and an ex parte application for a temporary restraining order 13 14 (“TRO”)1 against Defendants City and County of San Francisco, San Francisco Department of 15 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 16 17 Amendment rights when they refused to release her dog, NightShade, from the custody of 18 SFDACC unless Plaintiff agreed to allow NightShade to be neutered. Id.at 1-2. SFDACC said 19 that NightShade had to be neutered because he is a Staffordshire Terrier or Pit Bull, a member of a 20 “dangerous breed.” Id. at 2. Plaintiff made a written request to SFDACC for a review and fair 21 evaluation of NightShade’s breed and breeding permits. Id. at 8. SFDACC rejected her 22 applications. Id. Plaintiff contends that NightShade is currently being held by SFDACC and is 23 scheduled to be neutered on May 16, 2014. Id. at 4. 24 Under Federal Rule of Civil Procedure 65(b), a court may issue an ex parte TRO if: (1) it 25 clearly appears that immediate and irreparable injury, loss, or damage will result to the applicant 26 before the adverse party or that party’s attorney can be heard in opposition; and (2) the applicant’s 27 1 28 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). 1 attorney certifies to the court in writing the efforts, if any, which have been made to give notice 2 and the reasons supporting the claim that notice should not be required. Fed. R. Civ. Pro. 65(b); 3 Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). Notice may be excused 4 when “a known party cannot be located in time for a hearing.” McCord, 452 F.3d at 1131. 5 Temporary restraining orders granted ex parte are to be “restricted to serving their underlying 6 purpose of preserving the status quo and preventing irreparable harm just so long as is necessary 7 to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 8 U.S. 423, 438-39, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); McCord, 452 F.3d at 1131. 9 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. 11 United States District Court Northern District of California 10 Accordingly, Defendants are enjoined from neutering or disposing of NightShade for 10 days, 12 until May 26, 2014, at 5:00 p.m. 13 Plaintiff will serve all Defendants with the Complaint, associated filings, and this Order by 14 no later than May 19, 2014 and will file a proof of service of same with the Court by no later than 15 May 20, 2014. Once service has properly been effectuated, the Court will set a hearing for the 16 matter. Defendants may apply to the Court for modification or dissolution of the instant Order 17 upon two days’ notice to Plaintiff. 18 19 20 21 IT IS SO ORDERED. Dated: May 16, 2014 ______________________________________ JAMES DONATO United States District Judge 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?