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Karen Cervantes v. Dhs: Cps of Michigan et al.

April 20, 2011

KAREN CERVANTES,
PLAINTIFF,
v.
DHS: CPS OF MICHIGAN ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1)GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; (2)DENYING PLAINTIFF'S REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION; (3) DISMISSING COMPLAINT WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915

[Doc. Nos. 1 & 2]

Presently before the Court are Plaintiff Karen Cervantes's complaint, in which she requests a temporary restraining order and preliminary injunction [Doc. No. 1], and Plaintiff's motion to proceed in forma pauperis ("IFP"). [Doc. No. 2.]

BACKGROUND

The exact nature of Plaintiff's allegations is unclear. It appears that Plaintiff is the mother of two children who were removed from her custody. Plaintiff suggests the children were removed because she was involved in an automobile accident while she, another individual, or both were intoxicated, and because Plaintiff left the children in the temporary custody of a minor. [See Compl., at 2, 15, 25.] It also appears that the removal and the underlying incidents occurred in Michigan, and that the children and all Defendants remain there.*fn1 [See id. at 2, 3, 14.] Plaintiff seeks temporary and permanent injunctions to return children to her custody, alleging violations of her Fourth, Fifth, and Fourteenth Amendment rights, as well as Michigan's Elliot Larsen Civil Rights Act, Mich. Comp. Laws § 37.2201 et seq.

DISCUSSION

Motion to Proceed IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Court finds that Plaintiff's affidavit of assets is sufficient to show that she is unable to pay the fees or post securities required to maintain this action. See CivLR 3.2(d). Plaintiff is currently unemployed and lists no significant assets. Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a).

Request for TRO and Preliminary Injunction

To obtain a TRO or preliminary injunction, Plaintiff must demonstrate (1) that she is likely to succeed on the merits; (2) that she is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in her favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., - U.S. -, 129 S.Ct. 365, 374 (2008). Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 375-76.

Plaintiff has failed to demonstrate that her claims are likely to succeed on the merits. Plaintiff alleges her children were removed from her custody, but she does not allege that the removal procedures in Michigan are inadequate or that someone effected the removal of her children without following the procedures mandated under Michigan law. Rather, Plaintiff intimates that a judge in the State of Michigan approved the removal and merely takes issue with the judge's decision. [See Compl., at 14-15 ("State judge granted bogus [removal] petition based solely on [an automobile] accident [allegedly involving Plaintiff and intoxicating substances]."); id. at 15 (noting another allegation that Plaintiff left her children in the custody of a minor).] Plaintiff's allegations are insufficient to support her claims.

Additionally, Plaintiff's complaint has not been served. Until the complaint is served and Defendants have appeared in this action, the Court has no jurisdiction over any Defendant and may not issue orders mandating that they take certain action. See Zepeda v. U.S. Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985) ("A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.") (emphasis added).

Because Plaintiff has failed to show the requisite likelihood of success on the merits, the Court does not consider the remaining three factors. Plaintiff's ...


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