Davis v. United States Olympic Committee

Filing 4

ORDER Denying 1 Ex Parte Motion for a Temporary Restraining Order. Signed by Judge Lucy H. Koh on 6/12/12. (Attachments: # 1 Certificate/Proof of Service)(lhklc3, COURT STAFF) (Filed on 6/12/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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MAURICE DAVIS,
Plaintiff,
v.
UNITED STATES OLYMPIC COMITTEE,
Defendant.

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Case No.: 12-CV-02999-LHK
ORDER DENYING EX PARTE MOTION
FOR TEMPORARY RESTRAINING
ORDER

On June 12, 2012, Plaintiff Maurice Davis (“Plaintiff”) filed a complaint against the United

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States Olympic Committee (“Defendant”), in which he seeks an ex parte temporary restraining

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order (“TRO”) “directing the United States Olympic Committee to let Plaintiff compete in the

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Paralympic swim trials that will take place from June 14-16, 2012, at Bismarck State College.”

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ECF No. 1 (“Compl.”) at 8-9. Plaintiff alleges that he has suffered discrimination on the basis of

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race and that he will be irreparably harmed in the absence of preliminary injunctive relief.

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The standard for issuing a TRO is identical to the standard for issuing a preliminary

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injunction. Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D.

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Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323

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(N.D. Cal. 1995). “A plaintiff seeking a preliminary injunction must establish that he is likely to

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

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

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking the injunction

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bears the burden of proving these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201

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Case No.: 12-CV-02999-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

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(9th Cir. 2009). The issuance of a preliminary injunction is at the discretion of the district court.

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

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In addition to making the four substantive showings under Winter, a party seeking to obtain

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an ex parte TRO must satisfy certain procedural requirements pursuant to the Federal Rules of

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Civil Procedure and the Civil Local Rules of this District. Federal Rule of Civil Procedure

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65(b)(1) states that a court may issue a temporary restraining order without notice to the opposing

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party only if: “A) specific facts in an affidavit or a verified complaint clearly show that immediate

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and irreparable injury, loss, or damage will result to the movant before the adverse party can be

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heard in opposition; and B) the movant’s attorney certifies in writing any efforts made to give

United States District Court
For the Northern District of California

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notice and the reasons why it should not be required.” In addition, Civil Local Rule 65-1(a)

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requires that an ex parte motion for a TRO be accompanied by: (1) a copy of the complaint; (2) a

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separate memorandum of points and authorities in support of the motion; (3) the proposed

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temporary restraining order; and (4) such other documents in support of the motion which the party

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wishes the Court to consider. On or before the day of an ex parte motion for a TRO, the party

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seeking the TRO must deliver notice of such motion to the opposing counsel or party, unless

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relieved by the Court for good cause shown. Civ. L. R. 65-1(b).

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Plaintiff here has failed to comply with these various procedural requirements. For

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example, Plaintiff gives no indication that he has attempted to give notice of his ex parte TRO to

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Defendant. Plaintiff has not delivered notice of his TRO to opposing counsel, nor has he shown

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good cause for his failure to do so. Furthermore, Plaintiff has filed neither a separate memorandum

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of points and authorities in support of the TRO motion nor a proposed temporary restraining order.

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In addition to these procedural defects, Plaintiff has failed to show a likelihood of success

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on the merits. Plaintiff appears to be attempting to state a claim for violation of the Equal

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Protection Clause of the Fourteenth Amendment. See Compl. ¶¶ 6, 11, 13; see also Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (pro se pleadings are to be liberally

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construed). Plaintiff asserts that on May 17, 2012, he went to the University of Cincinnati for his

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“classification session,” in hopes of being classified as eligible to compete in the Paralympics swim

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competition. Id. ¶¶ 4-5. Plaintiff, an African American male, was told at the end of his
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Case No.: 12-CV-02999-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

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classification session by his two examiners that he was not eligible to compete. Id. ¶ 7. Both

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examiners were white males. Id. ¶ 6. Plaintiff appealed the decision and was re-tested the

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following day, but was again told he was ineligible. Id. ¶¶ 8-11. Plaintiff believes he was

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discriminated against on account of his race. Id. ¶ 13. “To state a claim for violation of the Equal

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Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose to

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discriminate against him based upon his membership in a protected class.” Serrano v. Francis, 345

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F.3d 1071, 1082 (9th Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998)). Apart from stating his belief that he was discriminated against on account of his race,

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Plaintiff has submitted no other evidence of discriminatory intent. Plaintiff has thus not shown a

United States District Court
For the Northern District of California

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likelihood of success on the merits of his claim.
Accordingly, for the reasons discussed above, Plaintiffs’ ex parte motion for a TRO is

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DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: June 12, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-02999-LHK
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER