Bayer v. City and County of San Francisco

Filing 63

Order by Judge Araceli Martinez-Olguin denying 56 Motion for Temporary Restraining Order. (ads, COURT STAFF) (Filed on 2/5/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEFFREY BAYER,
Plaintiff,

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ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

v.
CITY AND COUNTY OF SAN
FRANCISCO,

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United States District Court
Northern District of California

Case No. 22-cv-07440-AMO

Re: Dkt. No. 56

Defendant.

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Before the Court is pro se Plaintiff Jeffrey Bayer’s second motion for a temporary
restraining order. ECF 56. Bayer seeks an order providing that:

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(1) The City’s employees are to stay at least 10 yards away from him.

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(2) The City’s employees are not to contact him by any means other than email and U.S.

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mail.
(3) The City’s employees are to return his leather jacket.

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Id. at 15. Bayer demands that the temporary restraining order remain active until two conditions

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are met. Id. First, the City has returned his leather jacket. Second:

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police incident reports are taken BY EMAIL (clearly stating the
victim is Jeffrey Bayer) by the Defendant’s law enforcement
employees (regarding their intentional victim/plaintiff harassment,
grand theft of victim’s property, and deprivation of rights), arrests
have been made of all defendant’s employees involved, and criminal
prosecution has been completed by a criminal court jury determining
their guilt (or otherwise).
Id. (emphasis in original).
The standard for issuing a temporary restraining order is identical to the standard for a

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preliminary injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839

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n.7 (9th Cir. 2001). A court considers four factors before granting preliminary relief: (1) whether

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the applicant is likely to succeed on the merits of the action; (2) whether the applicant is likely to

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suffer irreparable harm in the absence of preliminary relief; (3) whether the balance of the equities

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tip in the applicant’s favor; and (4) that an injunction is in the public interest. Doe v. Reed, 586

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F.3d 671, 676 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

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(2008)). A temporary restraining order is an “extraordinary remedy that may only be awarded

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upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

United States District Court
Northern District of California

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“An adequate showing of irreparable harm is the ‘single most important prerequisite for

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the issuance of a [temporary restraining order].’” Universal Semiconductor, Inc. v. Tuoi Vo, No.

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5:16-CV-04778-EJD, 2016 WL 9211685, at *2 (N.D. Cal. Nov. 29, 2016) (quoting Freedom

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Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)). “To successfully make that showing,

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the moving plaintiff must ‘demonstrate that irreparable injury is likely in the absence of an

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injunction.’” Id. (quoting Winter, 555 U.S. at 22) (emphasis in original). “A [temporary

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restraining order] ordered on anything less is ‘inconsistent’ with the ‘characterization of injunctive

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relief as an extraordinary remedy . . . .’” Id. (quoting Winter, 555 U.S. at 22).

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The extraordinary remedy Bayer seeks by the instant motion is not warranted. Bayer

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waited until November 30, 2023, more than one year after the City removed his case to this Court

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on November 23, 2022, to seek a temporary restraining order. See ECF 1, 46. Bayer then waited

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nearly one-month after the Court denied the first motion for a temporary restraining order to re-file

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an identical motion. See ECF 53, 56. The substantial delay in seeking relief is “undermines

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[Bayer’s] claim that he will suffer irreparable harm in the absence of a [temporary restraining

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order].” See Perez v. City of Petaluma, No. 21-CV-06190-JST, 2021 WL 3934327, at *1 (N.D.

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Cal. Aug. 13, 2021) (collecting cases).

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Accordingly, Bayer’s second motion for a temporary restraining order is DENIED.

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IT IS SO ORDERED.

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Dated: February 5, 2024

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ARACELI MARTÍNEZ-OLGUÍN
United States District Judge

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