Smith v. City of Berkeley et al

Filing 30

ORDER by Judge Hamilton denying 25 Motion for Preliminary Injunction (pjhlc1, COURT STAFF) (Filed on 2/18/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHRISTOPHER SMITH,

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For the Northern District of California

United States District Court

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Plaintiff,
v.

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ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

CITY OF BERKELEY, et al.,

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No. C 13-4947 PJH

Defendants.
_______________________________/

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Plaintiff Christopher Smith filed this action on September 24, 2013, in the Superior

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Court of California, County of Alameda, alleging federal and state constitutional violations

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and a claim of unlawful debarment. Defendants removed the action on October 24, 2013,

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asserting federal question jurisdiction.

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On February 4, 2014, plaintiff filed a motion to amend and supplement the

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complaint, to add allegations regarding events that he claims were either "recently

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discovered as a result of further investigation into the actions and events already set forth

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in the complaint," or that had occurred since the filing of the original complaint, and to

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assert additional causes of action. On February 5, 2014, defendants filed a motion to stay

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the case, pending resolution of the underlying nuisance abatement proceeding between the

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City of Berkeley and plaintiff. Also on February 5, 2014, plaintiff filed a motion for a

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preliminary injunction.

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An injunction is a matter of equitable discretion and is “an extraordinary remedy that

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may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf

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v. Geren, 553 U.S. 674, 689-90 (2008). A preliminary injunction “should not be granted

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unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

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

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A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public interest.

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Winter, 555 U.S. at 20. Alternatively, the plaintiff may demonstrate that the likelihood of
success is such that “serious questions going to the merits were raised and that the

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For the Northern District of California

United States District Court

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balance of hardships tips sharply in the plaintiff's favor,” so long as the other two elements

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of the Winter test are met. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32

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(9th Cir. 2011).

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Showing “serious questions going to the merits” requires more than establishing that

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“success is more likely than not,” and it requires a plaintiff to demonstrate a “substantial

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case for relief on the merits.” Leiva–Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011).

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And even where success on the merits is likely or “serious questions” are raised an

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injunction “is not a remedy which issues as of course.” Weinberger v. Romero-Barcelo,

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456 U.S. 305, 311 (1982).

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Plaintiff seeks an injunction

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(1) prohibiting the City of Berkeley and its personnel from entering his
residence without a warrant and (2) prohibiting the City from resubmitting a
materially false and misleading warrant application previously relied upon by
the City to obtain a warrant for the forcible entry into Mr. Smith’s home. [He]
further requests that the Court schedule a hearing pursuant to Franks v.
Delaware, to determine whether all evidence and materials seized pursuant to
the warrant obtained by the City should be suppressed.

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Motion at 1.
The claims as to which plaintiff asserts he is likely to succeed appear to be the

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additional claims that he seeks to add in the proposed amended and supplemental

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complaint. Accordingly, because the court has not yet granted the motion for leave to
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amend and supplement the complaint, those claims are not yet at issue in the case and

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cannot form the basis for a motion for preliminary injunction.

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Accordingly, the motion is DENIED, without prejudice to refiling once the court has
ruled on the motion to amend and supplement the complaint.

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IT IS SO ORDERED.

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Dated: February 18, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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