Estes v. Gaston et al

Filing 4

ORDER Denying 3 Plaintiff's Motion for Temporary Restraining Order. Signed by Judge James C. Mahan on 10/30/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL W. ESTES,

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2:12-CV-1853 JCM (VCF)

Plaintiff(s),
v.
ROBERT GASTON, et al.,

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Defendant(s).

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ORDER
Presently before the court is plaintiff, appearing pro se, Michael W. Estes’ motion for a
temporary restraining order. (Doc. # 3).

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According to Federal Rule of Civil Procedure 65, a court may issue a temporary restraining

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order when the moving party provides specific facts showing that immediate and irreparable injury,

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loss, or damage will result before the adverse party’s opposition to a motion for preliminary

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injunction can be heard. Fed. R. Civ. P.65. “The purpose of a temporary restraining order is to

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preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial

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nature is designed merely to prevent irreparable loss of rights prior to judgment.” Miller v. Rufion,

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No. 08-1233, 2009 WL 348176, at *1 (E.D. Cal. Feb. 11, 2009) (citing Sierra On-Line, Inc. v.

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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). “Thus, in seeking a temporary

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restraining order, the movant must demonstrate that the denial of relief will expose him to some

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significant risk of irreparable injury.” Id. (quoting Associated Gen. Contractors of California v.

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James C. Mahan
U.S. District Judge

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Coalition of Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991).1

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In plaintiff’s motion, he seeks “the protection of the Court from eminent injury by Defendants

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or their agents through unlawful legal process issued to compel payment of an unlawful debt as set

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forth in the Complaint pursuant to the Rico Act . . . .” (Doc. # 3). The complaint accompanying the

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motion for leave to proceed in forma pauperis totals 108 pages and alleges causes of action against

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dozens of defendants. (See Compl. Doc. # 1-1). In the motion for a temporary restraining order,

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plaintiff states all of the following: (1) that he “believes” that a warrant for his arrest has been issued;

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(2) that the warrant is based upon “fraud and unlawful action of the Family Court”; (3) someone will

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use the warrant against plaintiff “to compel payment of a civil debt (and that this would be “the equal

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of operation of a debtor’s prison”); (4) that his “physical stamina will not support his survival

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through another false imprisonment at the CCDC”; (5) and, finally, that this court should bar the

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further prosecution of “Case # R095892.” (Doc. # 3).

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There are a number of reasons why this court will not issue the temporary restraining order.

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First, plaintiff only states that he ”believes” that a warrant has been issued for his arrest. (Doc. # 3).

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A belief that a person might be arrested at some date in the future based upon an arrest warrant that

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may or may not actually exist cannot meet the “significant risk of irreparable harm” required to issue

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a temporary restraining order. See Miller, 2009 WL 348176, at * 1. There is no evidence that an

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arrest warrant actually exists and that any local authorities are attempting to arrest plaintiff based

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upon “fraud and unlawful action.”

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Second, in plaintiff’s complaint, many of the causes of action stem from a final decree of

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divorce in family court in December of 1993. (See Compl. Doc. # 1-1 at 15-31). The court finds

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that any action taken against plaintiff originating from a 1993 court proceeding does not meet the

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immediate and eminent requirements necessary to secure a temporary restraining order.

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James C. Mahan
U.S. District Judge

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The Supreme Court has stated that courts must consider the following factors in determining
whether to issue a temporary restraining order and preliminary injunction: (1) a likelihood of success
on the merits; (2) likelihood of irreparable injury if preliminary relief is not granted; (3) balance of
hardships; and (4) advancement of the public interest. Winter v. N.R.D.C., 129 S. Ct. 365, 374–76
(2008).
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Third, plaintiff asserts 28 causes of action against various government entities and

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government figures including, but not limited to: the district attorney for Clark County; the “hearing

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master” in family court; certain Nevada Supreme Court justices; a Nevada trial level state court

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judge; and, the senators and representatives of the Nevada legislature that enacted certain statutory

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provisions. The causes of action range from conspiracy to RICO to denial of constitutional rights.

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The court finds these causes of action do not have the necessary likelihood of success on the merits

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to warrant a temporary restraining order.

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Finally, plaintiff wants this court to enjoin a state court proceeding. Plaintiff has only made

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conclusory statements that this court should enjoin a state court proceeding. Plaintiff has omitted

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any legal justification for doing so or which state court should even be enjoined. The court, on its

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own, can discern no reason why it should enjoin the proceedings of another court.

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Plaintiff must establish real and immediate irreparable harm before this court may grant a

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temporary restraining order. Plaintiff has not met that high burden. Based on the facts presented,

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plaintiff’s alleged injuries do not establish the requisite immediacy to warrant a temporary restraining

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order.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for a

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temporary restraining order (doc. # 3) be, and the same hereby is, DENIED.
DATED October 30, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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