Perez v. Douglas County Sheriff Dept. et al

Filing 3

ORDER. Plaintiff's 2 Motion for Temporary Restraining Order and Preliminary Injunctive Relief is denied. By Judge Philip A. Brimmer on 11/17/11.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02975-WJM
GONZALO PEREZ, and all others similarly situated,
Plaintiff,
v.
DOUGLAS COUNTY SHERIFF DEPARTMENT,
GRAND COUNTY SHERIFF DEPARTMENT,
CITIES OF WINTER PARK-FRASER POLICE DEPARTMENT,
DENVER COUNTY SHERIFF DEPARTMENT,
CITY OF DENVER POLICE DEPARTMENT, and
ADAMS COUNTY SHERIFF DEPARTMENT,
Defendants.

ORDER

This matter comes before the Court on plaintiff Gonzalo1 Perez’s pro se Motion
for Temporary Restraining Order and Preliminary Injunctive Relief [Docket No. 2].2 For
the reasons discussed below, the Motion for a Temporary Restraining Order (“TRO”) is
denied.

1

The complaint identifies plaintiff’s first name as “Gonzalo.” See Docket No. 1. In
the motion for a temporary restraining order, however, plaintiff’s first name is listed as
“Gerardo.” See Docket No. 2. The Court liberally construes the pleadings to assume
that “Gerardo” and “Gonzalo” refer to the same plaintiff.
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This case is assigned to William J. Martinez, United States District Judge.
Based on Judge Martinez’s unavailability and the nature of this motion, the motion was
assigned to the undersigned via random draw.

I. BACKGROUND
On November 16, 2011, plaintiff filed the instant motion for a TRO. Plaintiff asks
the Court to restrain the Douglas County Sheriff Department, the Grand County Sheriff
Department, the City of Winter Park-Fraser Police Department, the Denver County
Sheriff Department, the City of Denver Police Department, and the Adams County
Sheriff Department (collectively “defendants”) from illegally removing plaintiff from his
property without a court order. Plaintiff’s motion alleges that defendants harass
minorities by subjecting them to untimely evictions and that defendants’ actions have
led to the loss and vandalism of plaintiff’s property. In the complaint, plaintiff alleges
that he has been subject to civil rights violations, hate crimes, and several violations of
the Fair Housing Act, 42 U.S.C. § 3604. Plaintiff also claims that an abusive realtor has
harassed his family using derogatory and racist insults. Plaintiff asserts that, since the
realtor called the Douglas County Sheriff Department, Sheriff Deputies have been
stationed outside of his house and have made threats to arrest plaintiff. Plaintiff seeks
an ex parte TRO to prohibit defendants’ harassing behavior. Plaintiff states that he has
not provided defendants with notice of the TRO because he fears retaliation from
defendants.
Because plaintiff is not represented by an attorney, the Court must construe the
instant motion and other papers filed by plaintiff liberally. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
However, the Court should not advocate for a pro se litigant. See Hall, 935 F.2d at
1110.

2

The precise factual basis for plaintiff’s claims is unclear. However, plaintiff
alleges civil rights violations performed by state actors as well as violations of the Fair
Housing Act, 42 U.S.C. § 3604. Therefore, the plaintiff appears to invoke the Court’s
jurisdiction under 28 U.S.C. § 1331.
II. ANALYSIS
Rule 65(b)(1) of the Federal Rules of Civil Procedure provides that a TRO may
be granted without written or oral notice to the adverse party or that party’s 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).
Here, plaintiff has failed to comply with the requirements of Rule 65(b)(1).
Plaintiff does not attach an affidavit and has not filed a verified complaint. A verified
complaint is a complaint that is sworn under penalty of perjury or signed by a notary
public. See 28 U.S.C. § 1746; Schuh v. Mich. Dept. of Corrections, 2010 WL 3648876,
at *1 (W.D. Mich. July 26, 2010). Moreover, the motion does not contain “specific facts”
demonstrating “immediate and irreparable injury” before the adverse party can be heard
in opposition. Although plaintiff claims that he fears retaliation in his Information for
Temporary Restraining Order [Docket No. 2-1], he fails to provide any facts to support
such claim. Local Rule 65.1A makes clear that “[e]xcept in accordance with Fed. R.
Civ. P. 65(b), the court will not consider an ex parte motion for temporary restraining
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order.” D.C.COLO.LCivR 65.1A. Thus, plaintiff’s ex parte motion must be denied for
failing to comply with Rule 65(b)(1).
Even if plaintiff had complied with Rule 65(b)(1), the vague nature of plaintiff’s
allegations would lead to a denial of plaintiff’s motion. A party seeking a preliminary
injunction or a temporary restraining order must show (1) a likelihood of success on the
merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities tips in the movant’s favor; and (4) that
the injunction is in the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208
(10th Cir. 2009) (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7,
20 (2008)). The Tenth Circuit has made it clear that “because a preliminary injunction
is an extraordinary remedy, the right to relief must be clear and unequivocal.”
Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th
Cir. 2009). The same considerations apply to the issuance of a temporary restraining
order. See Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980).
A. Likelihood of Success on the Merits
Plaintiff has failed to make a sufficient showing that he has a likelihood of
success on the merits. Under 42 U.S.C. § 3604, it is unlawful to discriminate against
any person in the terms of “sale or rental of a dwelling, or in the provision of services.”
42 U.S.C. § 3604(b). Most of plaintiff’s allegations in the motion are general allegations
that are not tied to any specific claim for relief. See, e.g., Docket No. 2 at 2, ¶ 5
(“Defendants have systematically targeted minorities in wrongful evictions.”). Plaintiff

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fails to allege any supporting factual allegations that would give the Court a basis to
determine whether plaintiff has a likelihood of success on the merits.
The most specific allegation concerns plaintiff’s claim that a realtor attacked and
threatened his family in connection with plaintiff’s property. Docket No. 1 at 3. Plaintiff
then asserts that the realtor sought the help of the Douglas County Sheriff Department
to remove plaintiff from his residence. However, plaintiff has not explained why he was
being removed from his residence, why the Douglas County Sheriff’s Department was
called to assist, and what actions of the Sheriff’s Department were discriminatory.
Moreover, these allegations against defendant show no likelihood of success against
other defendants.3 Thus, without more, plaintiff is unlikely to succeed on a claim that
the defendants acted with discriminatory animus in connection with the “sale or rental”
of a residence.
B. Irreparable Harm
Plaintiff has also failed to make a showing of irreparable harm. To satisfy the
irreparable harm requirement, a plaintiff must demonstrate “a significant risk that he or
she will experience harm that cannot be compensated after the fact by monetary
damages.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir.
2003). Here, plaintiff does not state any facts to show why he is subject to irreparable
harm. Plaintiff alleges that an injunction is needed to “prevent further Damages,
Retaliation and harm to the public and minor children of Plaintiffs.” Docket No. 2 at 2, ¶
3

Although plaintiff purports to assert claims on behalf of all similarly situated
plaintiffs subject to discriminatory actions by the same defendants, the Court has only
considered those allegations specific to plaintiff since no class has been certified by the
Court. See Fed. R. Civ. P. 23.
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9. However, plaintiff fails to allege specifically what actions defendants are taking, the
imminence of such further actions, and why monetary damages would not compensate
him for the violations of his rights. Thus, plaintiff has failed to show irreparable harm.
C. Balance of Equities and Public Interest
Plaintiff has not made a sufficient showing that the balance of equities tips in his
favor or that an injunction would be in the public interest. Plaintiff alleges that a
temporary restraining order is necessary to preserve the status quo. Docket No. 2 at 2,
¶ 12. However, plaintiff has failed to allege exactly what defendants are doing to violate
the Fair Housing Act and has not shown that defendants have acted with discriminatory
animus. Moreover, plaintiff fails to identify what relief he seeks. Plaintiff simply asks
the Court “for a Temporary Restraining Order; and INJUNCTIVE RELIEF for such other
and further relief as to [sic] the Court seems just and proper.” Docket No. 2 at 3.
Without knowing what actions of the defendants the plaintiff wants the Court to enjoin,
the Court cannot find in plaintiff’s favor as to either of these factors. Therefore, neither
the balance of the equities nor the public interest weighs in plaintiff’s favor.
III. CONCLUSION
Accordingly, it is
ORDERED that plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunctive Relief [Docket No. 2] is DENIED.

DATED November 17, 2011.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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