Toma v. Department of Homeland Security et al

Filing 9

ORDER denying 8 Motion for TRO. This court hereby denies without a hearing plaintiff's motion for a temporary restraining order. Although plaintiff has paid the filing fee to commence this action, the court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Ordered by Judge Allyne R. Ross on 11/5/2015. (Hartz, Lauren)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

15-CV-6047 (ARR) (RER)

MARIA LAURA TOMA,

Plaintiff,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION

-againstOPINION & ORDER

DEPARTMENT OF HOMELAND SECURITY

and FEDERAL BUREAU OF INVESTIGATION,
Defendants.
X

ROSS, United States District Judge:

On October 21,2015, pro se plaintiff Maria Laura Toma brought this action against the

Department of Homeland Security and the Federal Bureau of Investigation under 42 U.S.C. §
1983. S^ Compl., Dkt. #1. Plaintiff subsequently filed a motion seeking an order to show cause
for a temporary restraining order and preliminary injunction, which this court denied by order
dated October 28, 2015.

Order, Dkt. #5. Plaintiff has filed another motion for a restraining

order. S^ Notice of Mot., Dkt. #8. For the reasons set forth below, plaintiffs motion is denied.

The court assumes familiarity with the factual and procedural background of this action,
which it sets forth in its prior order. See Order, Dkt. #5. Plaintiffs second motion for a

temporary restraining order seeks the same emergency relief previously denied by this court.

Specifically, plaintiffasks the courtto issue an order (1) removing plaintiff"from a watch/follow
up/surveillance list" that she claimsthe defendants administer, and (2) restraining defendants
from "tak[ing] further action against [her] in the way that [plaintiff] describe[s] it in the
complaint." Notice of Mot., Dkt. #8, at 2.

Rule 65(b) of the Federal Rules of Civil Procedure permits courts to issue temporary
restraining orders in limited circumstances.

Fed. R. Civ. P. 65(b). "It is well established that

the standard for an entry of a temporary restraining order is the same as for a preliminary
injunction." AFA Dispensing Grp. B.V. v. Anheuser-Busch. Inc.. 740 F. Supp. 2d 465,471

(S.D.N.Y. 2010). Under that standard, the movant has the burden to establish "(I) irreparable

harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or
(b) sufficiently serious questions going to the merits to make them a fair groimd for litigation and
a balance of hardships tipping decidedly in the movanfs favor." Cntv. of Nassau. N.Y. v.

Leavitt. 524 F.3d 408, 414 (2d Cir. 2008) (quoting NXIVM Com, v. Ross Inst.. 364 F.3d 471,
476 (2d Cir. 2004)).

Nothing in the instant motion alters this court's conclusion that plaintiff has failed to
meet that burden. Specifically, plaintiffs motion does not address the deficiencies in her

complaint that prevent her from demonstrating a likelihood of success on the merits or even

sufficiently serious questions going to the merits. Accordingly, for all the reasons provided in the
October 28, 2015 order, this court concludes that plaintiff is not entitled to the emergency relief
she seeks.

CONCLUSION

This court hereby denies without a hearing plaintiffs motion for a temporary restraining

order. Although plaintiffhas paid the filing fee to commence this action, the court certifies
pursuant to 28 U.S.C. § 1915(a)(3)that any appeal from this order would not be taken in good
faith and therefore m forma pauperis status is denied for the purpose of an appeal. Coppedge v.
United States. 369 U.S. 438,444-45 (1962).

so ORDERED.

Allyne R.
United Static

Dated: Brooklyn, New York
November 5, 2015

District