Mapp v. Santos et al

Filing 25

ORDER: The motion for an emergency restraining order (ECF No. 24 ) is Denied. It is further Ordered that Defendants shall file any opposition to the motion for a preliminary injunction by 5/7/2018. Plaintiff shall file any reply by 5/14/2018. The motion for a preliminary injunction remains pending. (ECF No. 24 ). Signed by Judge William Q. Hayes on 04/23/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TIMOTHY MAPP,

Case No.: 17cv2220-WQH-MDD
Plaintiff,

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v.

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ORDER

ERNESSITA SANTOS and
COUNTY OF SAN DIEGO,

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Defendants.

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HAYES, Judge:
The matter before the Court is the Motion for Emergency Restraining Order and/or

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Preliminary Injunction filed by Plaintiff Timothy Mapp. (ECF No. 24).
I.

BACKGROUND

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On February 8, 2018, Plaintiff filed an Amended Complaint, the operative pleading

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in this action, against Ernessita Santos and the County of San Diego. Plaintiff brings a

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cause of action pursuant to 42 U.S.C. § 1983 for violations of his due process rights.

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Plaintiff alleges that Defendant Santos, a case worker for the Department of Child Support

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Services (“DCSS”), “made a false report of non-payment to the Department of Motor

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Vehicles” and as a result “Plaintiff’s professional license was suspended effective 18 May

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2017.” (ECF No. 14 at 3). Plaintiff alleges that this resulted in a loss of employment. Id.

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at 6. Plaintiff seeks damages and an injunction preventing Defendants “from suspending
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Plaintiff’s professional license without court order first.” Id. at 7. Defendants have filed a

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motion to dismiss the Complaint for lack of subject matter jurisdiction and for failure to

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state a claim. (ECF No. 17). The motion remains pending.

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On April 23, 2018, Plaintiff filed a Motion for Emergency Restraining Order and/or

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Preliminary Injunction.

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restraining order and/or preliminary injunction “enjoining defendant SAN DIEGO

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COUNTY, and all persons acting on its behalf, from SUSPENDING THE DRIVERS

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LICENSE OF TIMOTHY MAPP (PURSUANT TO FAMILY CODE 17520, pending

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entry by the Court of a final judgment in this action.” Id. at 1. Plaintiff asserts that the

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Child Support Agency received payment on March 5, 2018. Plaintiff asserts that a DCSS

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case worker made a false report of non-payment on March 20, 2018 and that another case

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worker informed Plaintiff that his suspensions will continue until he agrees to increase

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payment. Plaintiff asserts that the Child Support Agency received an additional payment

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by wage assignment on April 12, 2018. Id. at 7. Plaintiff asserts that his driver’s license

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was suspended and that Plaintiff was “taken off his job, effective 19 April 2018.” Id.

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Plaintiff asserts that his “suspended license was released by court order on 20 April 2018.”

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Id. Plaintiff attaches an “Ex Parte Application and Order – Family Law” from the Superior

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Court of California for the County of San Diego in which the court granted the release of

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Plaintiff’s license. Id. at 20.

(ECF No. 24). Plaintiff moves the Court for a temporary

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Plaintiff contends that he will suffer irreparable injury unless an injunction issues

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because his employment will be terminated if his license is suspended. Id. at 2–3. Plaintiff

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contends that “[t]here is a substantial likelihood that Plaintiff will establish at trial that the

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DEFENDANTS HAVE VIOLATED HIS RIGHTS UNDER AMENDMENT 5 OF THE

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U.S. CONSTITUTION.” Id. at 3. Plaintiff states that he “is providing defendant’s counsel

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copies of this motion, the proposed TRO, the memorandum in support of this motion, and

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declarations and exhibits in support thereof.” Id. at 2.

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II.

DISCUSSION
Federal Rule of Civil Procedure 65(b)(1) provides that
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The court may issue a temporary restraining order without written or oral
notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). In this case, Plaintiff asserts that he has provided Defendants with
notice of this motion. (ECF No. 24 at 2). Further, Plaintiff has not demonstrated that

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“immediate and irreparable injury” will result if the Court does not issue a temporary

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restraining order “before the adverse party can be heard in opposition.” Fed. R. Civ. P.

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65(b)(1)(A). Plaintiff asserts that the state court granted an ex parte application to release
his suspended driver’s license on April 20, 2018. (ECF No. 24 at 7, 20). Plaintiff has
failed to comply with the requirements set forth in Rule 65(b)(1)(A-B). The application
for a temporary restraining order is denied.

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Rule 65(a) provides that “The Court may issue a preliminary injunction only on

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notice to the adverse party.” Fed. R. Civ. P. 65(a)(1). Plaintiff’s motion for a preliminary

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injunction remains pending. Defendants shall file any opposition to the motion for a
preliminary injunction on or before May 7, 2018. Plaintiff shall file any reply on or before
May 14, 2018. The Court will rule thereafter.
III.

CONCLUSION

IT IS HEREBY ORDERED that the motion for an emergency restraining order (ECF
No. 24) is DENIED.
IT IS FURTHER ORDERED that Defendants shall file any opposition to the motion
for a preliminary injunction on or before May 7, 2018. Plaintiff shall file any reply on or
before May 14, 2018. The motion for a preliminary injunction remains pending. (ECF
No. 24).
Dated: April 23, 2018

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