Todd v. McMahn et al

Filing 43

ORDER: Plaintiff's Motion for a Temporary Restraining Order 40 is denied. Signed on 1/19/2016 by Judge Michael J. McShane. (Copy mailed to plaintiff) (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
JOHN H. TODD,
No. 1:15-cv-1091-MC
Plaintiff,
ORDER
v.
GALE A. MCMAHN, et al.,
Defendants.
_________________________________________________________
MCSHANE, J.
Pro se plaintiff John H. Todd brings this civil rights action against Klamath County
Animal Control officer Gale A. McMahon, Klamath County Animal Control, and Klamath
County. Plaintiff claims that his due process rights were violated by McMahon’s alleged seizure
of more than 90 cats from Plaintiff’s property.
Plaintiff moves for a temporary restraining order. I deny the motion.
BACKGROUND
In June 2015, Klamath County Animal Control officers removed more than 90 cats from
Plaintiff’s property in Chiloquin, Oregon, pursuant to a search warrant. Plaintiff alleges that on
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December 7, 2015, the Klamath County District Attorney obtained a grand jury indictment and
filed criminal charges against Plaintiff. McMahon allegedly testified at the grand jury
proceedings.
Plaintiff alleges that a man who volunteered to help him was stopped and interrogated at
“the courthouse” (apparently referring to the Klamath County Circuit Court). Plaintiff also
alleges that he “has learned from Paul Hanson [apparently a reporter] that the clerk at the
Klamath County Court House indicated that an arrest warrant had been issued by the District
Attorney” for Plaintiff. Pl.’s Mot. 3, ECF No. 40.
Plaintiff filed this motion on January 15, 2016.
LEGAL STANDARDS
To obtain a temporary restraining order, the plaintiff must show that he will suffer
immediate and irreparable injury, loss, or damage if the court does not issue the requested
temporary restraining order. Fed. R. Civ. P. 65(b). Temporary restraining orders are governed
by the same standard as preliminary injunctions. See New Motor Vehicle Bd. of Cal. v. Orrin W.
Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.). The party seeking a preliminary
injunction “must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20 (2008). The plaintiff “must establish that irreparable harm is likely, not just
possible.” Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The
court may also apply the sliding scale test, under which the party seeking an injunction must
show greater irreparable harm as the probability of success on the merits decreases. Id. at 1134-

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35. The standard for obtaining ex parte relief under Rule 65 is very stringent. Reno Air Racing
Ass’n, Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006).
DISCUSSION
Plaintiff has not shown any valid justification for this court to issue such an extraordinary
restraining order of an ongoing state criminal prosecution. See Dubinka v. Judges of Superior
Court of State of Cal. for Cty. of Los Angeles, 23 F.3d 218, 223 (9th Cir. 1994) (“federal courts
should not enjoin pending state criminal prosecutions absent a showing of the state's bad faith or
harassment, or a showing that the statute is flagrantly and patently violative of express
constitutional prohibitions”) (further citations and quotation marks omitted). Plaintiff has not
shown that the state prosecution is in bad faith merely because Plaintiff had previously filed this
and other civil rights actions challenging the seizure of his cats. I have rejected Plaintiff’s
argument that Oregon’s animal welfare statutes are unconstitutional. See Todd v. State of
Oregon, No. 15-cv-1949-MC, ECF No. 6 (D. Or. Nov. 24, 2015). Plaintiff may raise such
arguments in the state court prosecution.
CONCLUSION
Plaintiff's Motion for Temporary Restraining Order (#40) is denied.
IT IS SO ORDERED.
DATED this 19th day of January, 2016.

s/ Michael J. McShane
MICHAEL MCSHANE
U.S. DISTRICT JUDGE

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