Matthews v. San Diego County Board of Supervisors et al

Filing 4

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. Denying Without Prejudice Plaintiff's Request for a Temporary Restraining Order/Preliminary Injunction. Signed by Judge Gonzalo P. Curiel on 4/17/18. (All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10

Thomas Matthews,

Case No.: 18-cv-711-GPC-NLS
Plaintiff,

11
12
13

ORDER:

v.
San Diego County Board of Supervisors et
al; Teresa Willis; Michael Murphy; San
Diego County Treasure's Office,

14
15

(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS

Defendant.

(2) DIRECTING U.S. MARSHALS
TO EFFECT SERVICE

16
17

(3) DENYING WITHOUT
PREJUDICE PLAINTIFF’S
REQUEST FOR A TEMPORARY
RESTRAINING
ORDER/PRELIMINARY
INJUNCTION

18
19
20
21
22
23
24
25

I.

Motion to Proceed In Forma Pauperis

26

On April 10, 2018, Plaintiff Thomas Matthews (“Plaintiff”), a non prisoner

27

proceeding pro se, filed a motion to proceed in forma pauperis (“IFP”) under 28 U.S.C. §

28

1915(a). Dkt. No. 2. All proceedings filed with the District Court require a filing fee
1
18-cv-711-GPC-NLS

1

unless the Court grants IFP status, waiving the fee. Rodriguez v. Cook, 169 F.3d 1176,

2

1177 (9th Cir. 1999). Under 28 U.S.C. § 1915(a), the Court may waive the filing fee if a

3

party demonstrates an inability to pay by submitting an affidavit reporting all assets of the

4

individual. 28 U.S.C. § 1915(a).

5

Here, Plaintiff has submitted an affidavit stating that receives $0 in any

6

employment income and receives $910.72 in monthly retirement income. Dkt. No. 2 at

7

1-2. He has $23 in a bank account and $200.00 in a checking account and owns a Ford

8

Truck from 2001. Dkt. No. 2 at 3. He has monthly expenses of $775. He has spent $175

9

in expenses or attorney fees thus far in conjunction with this lawsuit. Dkt. No. 2 at 5. He

10

asserts that he still owes the paralegal who has prepared his documents and that he cannot

11

“pay daily basic necessities and court fees.”
In consideration of Plaintiff’s application, he has sufficiently demonstrated that he

12
13

is unable to pay the required filing fee and meets the requirements to proceed IFP.

14

Therefore, the Court GRANTS Plaintiff’s motion to proceed IFP.

15

The Clerk of the Court is directed to issue a summons and provide Plaintiff with

16

the summons, certified copies of both this Order and the Complaint, and a blank U.S.

17

Marshal Form 285. Plaintiff shall complete the U.S. Marshal Form 285, and forward the

18

Form 285 along with the designated copies of this Order and the Complaint to the U.S.

19

Marshal. The U.S. Marshal shall serve a copy of the Complaint and summons upon the

20

Defendant as directed by Plaintiff on each U.S. Marshal Form 285. See Harkovich v.

21

Plum Healthcare Grp., No. 07CV1418WQHBLM, 2007 WL 2428989, at *1 (S.D. Cal.

22

Aug. 22, 2007).

23

II.

24

Sua Sponte Screening
Any complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a), is

25

subject to a mandatory and sua sponte review and dismissal by the Court, if it finds the

26

Complaint is “frivolous, malicious, failing to state a claim upon which relief may be

27

granted, or seeking monetary relief from a defendant immune from such relief.” 28

28
2
18-cv-711-GPC-NLS

1

U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he

2

provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).
Courts are to “liberally construe[]” documents filed pro se, Erickson v. Pardus, 551

3
4

U.S. 89, 94 (2007), affording pro se plaintiffs the benefit of the doubt. Thompson, 295

5

F.3d at 895; see also Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (“[T]he

6

Court has held pro se pleadings to a less stringent standard than briefs by counsel and

7

reads pro se pleadings generously, ‘however inartfully pleaded.’”).
Mindful of this case law, the Court concludes that Plaintiff’s complaint alleges

8
9
10
11
12
13
14
15
16

inter alia that he was denied adequate procedural due process in that he never
participated in a hearing before he was informed that his home would be sold on May 10,
2018. Dkt. No. 1 at 4. He specifically states that the constitutional violation is a
“deprivation of his . . . PROPERTY without due process of the law.” Further, Plaintiff
alleges that he has complied with administrative exhaustion requirements, and that
defendants were public employees at the time of the committed violations acting under
color of law within the course of their duties. Dkt. No. 1 at 5. Indeed, the Court observes
that a home constitutes property which can require certain adequate procedural
protections before a sale. See, e.g., Cox v. Yellowstone County, 795 F. Supp. 2d 1128,

17

1137 (D. Mont. 2011) (finding Montana lien enforcement statute, which did not give

18

property owner an opportunity to be heard prior to public sale of property, to violate

19

procedural due process). Accordingly, Plaintiff’s allegations are sufficient for purposes

20

of sua sponte screening under Section 1915(e)(2)(B). Plaintiff is cautioned, however,

21

that “the sua sponte screening and dismissal procedure is cumulative of, and not a

22

substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to

23

bring.” Teahan v. Wilhelm, 481 F. Supp. 1115, 1119 (S.D. Cal. 2007).

24

III.

25

PRELIMINARY INJUNCTION

REQUEST FOR TEMPORARY RESTRAINING ORDER AND/OR

26

Requests for temporary restraining orders are governed by the same general

27

standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd.

28

v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt'l Sales Co., Inc. v. John
3
18-cv-711-GPC-NLS

1

D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an

2

“extraordinary and drastic remedy” that is never awarded as of right. Munaf v. Geren, 553

3

U.S.

4

a temporary restraining order or a preliminary injunction, a plaintiff must establish four

5

factors, namely that: (1) he is likely to succeed on the merits; (2) he is likely to suffer

6

irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his

7

favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc.,

8

555 U.S. 7, 20 (2008). “Moreover, a district court should be wary of issuing an injunction

9

based solely upon allegations and conclusory affidavits submitted by plaintiff.” Atari

10

Games Corp. v. Nintendo of Am., Inc., 897 F.2d 1572, 1575 (Fed. Cir. 1990) (citing Am.

11

Passage Media Corp. v. Cass Commc'ns, Inc., 750 F.2d 1470, 1471 (9th Cir. 1985)).

12

Federal Rule of Civil Procedure 65 provides, in part, as follows:

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

674,

689-90

(2008)

(internal

citations

omitted).

Whether

seeking

(b) Temporary Restraining Order.
(1) Issuing Without Notice. 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.
Here, the Court cannot yet reach the merits of any motion for a Temporary
Restraining Order as Plaintiff has not certified in writing that he made efforts to provide
any notice to defendants. There is no indication that he has shown any attempt to give
notice to defendants of these requests. Even if plaintiff had provided appropriate notice to
Defendant, the Court would be unable to grant relief without documentation showing that
the sale of the property is actually set for May 10, 2018, as alleged in Plaintiff’s Complaint.
Dkt. No. 4. See Taimani v. Residential Mortgage Loan Trust 2013-TT2, 2016 WL
9175877, at *2 (N.D. Cal. 2016). Moreover, Defendants have not yet been served in this
case. The Court notes that “[t]he stringent restrictions imposed by [Rule 65] on the

4
18-cv-711-GPC-NLS

1

availability of ex parte temporary restraining orders reflect the fact that our entire

2

jurisprudence runs counter to the notion of court action taken before reasonable notice and

3

an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods,

4

Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cty., 415 U.S.

5

423, 438-39 (1974). Plaintiff’s procedural failure to satisfy the requirements for the

6

issuance of an ex parte TRO warrant the denial at this stage of a TRO. See Wofford v.

7

Hamilton, No. C 13-2467 SBA, 2013 WL 2456582, at *2 (N.D. Cal. June 6, 2013); Ghazali

8

v. Moran, 46 F.3d 52, 54 (9th Cir.1995) (“Although we construe pleadings liberally in their

9

favor, pro se litigants are bound by the rules of procedure.”)

10

Accordingly, at this stage the Court will DENY WITHOUT PREJUDICE any

11

request made by Plaintiff in his Complaint for a temporary restraining order or

12

preliminary injunction.1 If Plaintiff seeks to file another TRO before the May 10, 2018

13

sale, he should include adequate documentation reflecting the imminent sale of his

14

property and an affidavit asserting that efforts to provide notice to defendants were made

15

pursuant to Federal Rule of Civil Procedure 65(b)(1)(B).

16
17

CONCLUSION

18

1. Plaintiff’s Motion to Proceed IFP is GRANTED.

19

2. The Clerk of the Court is directed to issue a summons and provide Plaintiff with

20

the summons, certified copies of both this Order and the Complaint, and a blank

21

U.S. Marshal Form 285. Plaintiff shall complete the U.S. Marshal Form 285, and

22

forward the Form 285 along with the designated copies of this Order and the

23

Complaint to the U.S. Marshal. The U.S. Marshal shall serve a copy of the

24

Complaint and summons upon the Defendant as directed by Plaintiff on each U.S.

25
26
27
28

1

In the future, such requests should be made by a motion. Any motion should be compliant with the
requirements of Federal Rule of Civil Procedure Rule 65.
5
18-cv-711-GPC-NLS

1

Marshal Form 285. All costs of service shall be advanced by the United States.

2

See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2).

3

3. Plaintiff shall serve upon Defendants, or if appearance has been entered by

4

counsel, upon Defendants’ counsel, a copy of every further pleading or other

5

document submitted for consideration of the Court. Fed. R. Civ. P. 5. Plaintiff

6

shall include with the original papers to be filed with the Clerk of the Court a

7

Certificate of Service stating the manner in which a true and correct copy of any

8

document was served on Defendants, or counsel for Defendants, and the date of

9

service. Any document received by the Court which has not been filed with the

10
11
12

Clerk or which fails to include a Certificate of Service will be disregarded
4. Plaintiff’s Request for a Temporary Restraining Order or a Preliminary Injunction
is DENIED WITHOUT PREJUDICE.

13
14
15

IT IS SO ORDERED.
Dated: April 17, 2018

16
17
18
19
20
21
22
23
24
25
26
27
28
6
18-cv-711-GPC-NLS