Smith v. Judges
ORDER denying 3 Motion for TRO for the reasons set forth in the attached memorandum. The Clerk's Office is directed to close this case without prejudice to Plaintiff refiling a motion to reopen on or before 04/12/2017. Signed by Judge Vanessa L. Bryant on 03/23/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THOMAS ED SMITH,
JUDGES, and or arctects of restraining :
order against Pres Trump Travel band, :
CIVIL CASE NUMBER:
March 23, 2017
MEMORANDUM OF DECISION DENYING MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND MOTION FOR TEMPORARY RESTRAINING ORDER
[DKTS. 2, 3]
On March 17, 2017, Plaintiff Thomas Ed Smith (“Plaintiff”) filed a Complaint
against Defendants identified as “Judges and or arctects [sic] of restraining order
against Pres [sic] Trump Travel Band [sic],” [Dkt. 1 (Compl.), at 1]. Plaintiff’s
Complaint is on a complaint form which calls for a plaintiff to name each defendant
and list their addresses. This portion of the form is blank. Id. at 1-2.
form calls for a plaintiff to state the jurisdictional basis for the action. This section
is also blank. Id. at 2. The next section calls for a plaintiff to state the nature of the
complaint and it too is blank. Id. at 2-3. The following section calls for a plaintiff
to state the nature of the action and here Plaintiff writes, “see attached.” Id. at 3.
In the request for relief section of the form Plaintiff writes, “Temporary restraining
to prevent states from blocking Pres [sic] Trumps [sic] Travel Band [sic] unless
they can prove that refugees are properly vetted with reasonable dough bond.” [Id.
at 4]. Finally, Plaintiff requests a jury trial. Id. Plaintiff alleges no facts regarding
the judges and or “arctects” [sic] he names as Defendants and instead requests
an order of prospective relief, restraining, presumably all of the fifty states, from
seeking an order to restrain the enforcement of President Trump’s Travel Ban.
On the same day, Plaintiff filed a Motion for Leave to Proceed in forma
pauperis, [Dkt. 2 (Mot. IFP)] and a Motion for Temporary Restraining Order (“TRO”),
[Dkt. 3 (Mot. TRO)]. Plaintiff did not file a financial affidavit and thus has not shown
that he is entitled to in forma pauperis status. His application is therefore denied
without prejudice because the Court has no factual basis to rule in his favor.
The TRO Motion provides in relevant part the following information. First,
Plaintiff addresses the basis for filing the TRO, and presumably by like measure
the Complaint. The Court draws this assumption from the facts that Plaintiff does
not state the factual basis for his complaint, he filed the TRO Motion on the same
day as the complaint, and the Clerk of the Court correctly filed the documents
separately. As they were filed together, the Court assumes for purposes of this
decision that Plaintiff considered the TRO Motion to have been attached to his
Complaint. The TRO Motion states:
I request [the TRO] because I fear for my life and the life of my family
member[s] who live up and down the east coast and California. When
refugees come in and settle they can then move about as they feel. I
believe that at this time our country has a problem and cannot
properly vet them.
[Dkt. 3, at 1]. Second, Plaintiff expresses a desire for a hearing “so the people who
enforced the restraining order against the travel band [sic] can show beyond dout
[sic] that these people are properly [sic] and only have good intentions for our
country.” Id. Third, in support of this contention Plaintiff states, “I trust the
President when he say [sic] this is not being done,” id., and that he “believe[s] they
have an agenda that dose [sic] not take all Americans in consideration.” Id. at 2.
Plaintiff does not state the jurisdictional basis for his case. The Court will
presume without deciding that it has federal question jurisdiction because the case
raises questions of the relative power of the President of the United States and
either the powers of Article III judges or of the States. 28 U.S.C. § 1331.
Before addressing the merits of Plaintiff’s Motion for a Temporary
Restraining Order, the Court must first solve the issue of standing. Under Article
III, section 2 of the Constitution, a federal court is limited to jurisdiction over
“Cases” and “Controversies.” Massachusetts v. E.P.A., 549 U.S. 497, 516 (2007).
The doctrine of standing is “an essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992); see Ziemba v. Rell, 409 F.3d 553, 555 (2d Cir. 2005) (affirming district
court’s denial of temporary restraining order as plaintiff failed to show “Article III
standing”); Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (ruling that
States had standing to sue as they sufficiently “alleged harms to their proprietary
interests traceable to the Executive Order” 13769, “Protecting the Nation from
Foreign Terrorist Entry Into the United States”). “‘[T]he gist of the question of
standing’ is whether petitioners have ‘such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination.”
Massachusetts v. E.P.A., 549 U.S. at 517 (quoting Baker v. Carr, 369 U.S. 186, 204
(1962)). A plaintiff bears the burden to demonstrate standing for the federal court
to have jurisdiction over the case. See id., 549 U.S. at 536.
Proper standing requires a three-part showing. First, Plaintiff must show he
“suffered an injury in fact—an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Ziemba v. Rell, 409 F.3d at 554 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. at 560). Second, Plaintiff must establish a “causal connection
between the injury and the conduct complained of—the injury has to be fairly . . .
trace[able] to the challenged action of the defendant, and not . . . th[e] result [of]
the independent action of some third party not before the court.” Id. Third, “it must
be likely, as opposed to merely speculative,” that a decision in the plaintiff’s favor
will redress the injury. Id.
While the Court does not question the sincerity of Plaintiff's fears, Plaintiff’s
Complaint fails to satisfy any of the constitutional requirements for standing as it
merely requests relief by way of a temporary restraining order “to prevent states
from blocking Pres Trumps [sic] Travel Band [sic] unless they can prove that
refugees are properly vetted with beond [sic] reasonable dout [sic].” [Dkt. 1, at 4].
There appears to be no injury, but rather a request for the Court to enjoin states
across the country from participating in an action that is actively and properly
being litigated before other federal judges. See Washington v. Trump, 847 F.3d at
1161-62 (“Within our system, it is the role of the judiciary to interpret the law, a duty
that will sometimes require ‘[r]esolution of litigation challenging the constitutional
authority of one of the three branches.’”) (quoting Zivotofsky ex rel. Zivotofsky v.
Clinton, 566 U.S. 189, 196 (2012)).
Assuming the Complaint incorporates the
Motion for Temporary Restraining Order, Plaintiff’s only purported injury appears
to be his fear of future harm against his family and him, which he attributes to the
fact that “[w]hen refugees come in [the United States] and settle they can then
move about or as they feel” and “at this time our country has a problem and cannot
properly vet them.” [Dkt. 3, at 1]. Plaintiff provides no additional information other
than stating his fear.
Plaintiff’s expression of fear is not a sufficient injury in fact as it is purely
speculative, conjectural, and hypothetical. He states no concrete or objective
reasons why he could be harmed in the future. See Ziemba v. Rell, 409 F.3d at 554.
As the Plaintiff has not alleged any injury, much less imminent harm, the case runs
the risk that “no injury would have occurred at all.” See Lujan v. Defenders of
Wildlife, 504 U.S. at 564 n.2. Therefore, the Court holds that Plaintiff lacks standing
and the Court does not have the jurisdiction to address the merits of this case.
Plaintiff’s interests in the issues raised in this action are no greater than
those of any other person present in the country. The Court does, however, note
that Plaintiff’s interests are coterminous with those of the President; and the
President’s interests are being advanced by the Justice Department on his behalf
and on behalf of all of the citizens of this nation, including the Plaintiff.
A temporary restraining order is an “extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear showing, carries the
burden of persuasion.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Reidy, 477 F.
Supp. 2d 472, 474 (D. Conn. 2007) (quoting Moore v. Consol. Edison Co. of N.Y.,
Inc., 409 F.3d 506, 510 (2d Cir. 2005)). “The purpose of a temporary restraining order
is to preserve an existing situation in status quo until the court has an opportunity
to pass upon the merits of the demand for a preliminary injunction.” Garcia v.
Yonkers Sch. Dist., 561 F.3d 97, 107 (2d Cir. 2009). The factors considered in
assessing whether to grant a request for a temporary restraining order are similar
to those used to determine the merits of a motion for a preliminary injunction. See
Control Sys., Inc. v. Realized Sols., Inc., No. 3:11CV1423 PCD, 2011 WL 4433750, at
*2 (D. Conn. Sept. 22, 2011) (citing Local 1814, Int’l Longshoremen’s Ass’n, AFLCIO v. New York Shipping Ass’n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992)). To obtain
a temporary restraining order, therefore, the Plaintiff must show “irreparable harm,
and either (1) a likelihood of success on the merits of the case or (2) sufficiently
serious questions going to the merits to make them a fair ground for litigation and
a balance of hardships tipping decidedly in favor of the moving party.”
Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775, 779–80 (2d Cir. 1994).
The Court hereby DENIES the Motion for Temporary Restraining Order as
Plaintiff lacks standing.
Without standing, the Court has no jurisdiction to
determine whether Plaintiff has demonstrated irreparable harm, likelihood of
success on the merits of the case, sufficiently serious questions going to the
merits, or a balance of hardship in favor of the moving party. See Cortlandt Street
Recovery Corp. v. Hellas Telecomms., S.%22a.r.l., 790 F.3d 411, 417 (2d Cir. 2015)
(“[T]he jurisdictional issue must be resolved before the merits issue . . . .”) (quoting
Alliance for Environ. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d
Sua Sponte Dismissal Without Prejudice
The Court has a duty to dismiss any claim sua sponte over which it lacks
subject matter jurisdiction, even if the issue is not raised by the parties. Durant,
Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d.
Cir. 2009). Improper Article III standing is appropriately raised as an issue of
subject matter jurisdiction.
See Alliance for Env’t Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d at 87-88. As such, the pleadings require the Court to sua
sponte dismiss this case.
Even if the Court were to conclude Plaintiff’s injury is sufficiently concrete
and that Plaintiff has standing, the pleadings raise issues that would likely require
dismissal. First, Plaintiff fails to properly name and identify Defendants as required
for proper service of process. Second, Plaintiff fails to state a claim for which relief
may be granted, as it would be improper to restrict federal judges from interpreting
the law. See Washington v. Trump, 847 F.3d at 1162 (“[T]he Supreme Court has
repeatedly and explicitly rejected the notion that the political branches have
unreviewable authority over immigration or are not subject to the Constitution
when policymaking in that context.”). Lastly, to the extent Plaintiff seeks to sue
federal judges as Defendants acting in their official capacity, such allegations likely
raises issue of judicial immunity.
For the aforementioned reasons, the Court hereby DENIES the Motion for
Temporary Restraining Order, DENIES the Motion for Leave to Proceed in forma
pauperis, and DISMISSES this case without prejudice to filing a motion to reopen
on or before April 12, 2017. Any motion to reopen must be accompanied by a
proposed amended complaint that establishes jurisdiction, standing, states a claim
against a named defendant(s), properly adheres to the pleading standard set forth
by Rule 8 of the Federal Rules of Civil Procedure, and addresses all of the issues
raised by the Court in this decision. The Plaintiff must also file the filing fee or a
new motion to proceed in forma pauperis accompanied by a supporting true and
complete financial affidavit fully disclosing his financial position and establishing
his indigence. The Clerk’s Office is directed to close this case.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 23, 2017
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