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Danny F. Atterbury v. May Therese Varney

UNITED STATES DISTRICT COURT Northern District of California Oakland Division


April 20, 2012

DANNY F. ATTERBURY,
PLAINTIFF,
v.
MAY THERESE VARNEY, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Laurel Beeler United States Magistrate Judge

For the Northern District of California For the Northern District of California

ORDER DENYING PLAINTIFF'S

RETALIATION TATES [ECF No. 16]

REQUEST FOR COURT TO CONSIDER IF PLAINTIFF NEED AN INJUNCTION OR TEMPORARY RESTRAINING ORDER TO STOP THE

On April 17, 2012, Plaintiff Danny Atterbury filed a letter asking the court to consider if he 19 needs an injunction or temporary restraining order to stop purported retaliation and harassment by 20 some of the defendants. ECF No. 16 at 3. The letter does not actually move for an injunction or 21 temporary restraining order but, instead, appears to seek the court's advice. The court many not give 22 a party advice on what kind of relief the party should seek. See Thomas v. Anchorage Equal Rights 23 Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) ("Our role is neither to issue advisory opinions nor to 24 declare rights in hypothetical cases . . . ."); see also Pliler v. Ford, 542 U.S. 225, 231 (2004) 25 ("District judges have no obligation to act as counsel or paralegal to pro se litigants"). If Plaintiff 26 believes he is entitled to an injunction or temporary restraining order, he may file a motion seeking 27 one. 28 A temporary restraining order preserves the status quo and prevents irreparable harm until a 1 hearing can be held on a preliminary injunction application. See Granny Goose Foods, Inc. v. 2 Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 429 (1974). A temporary 3 restraining order is an "extraordinary remedy" that the court should award only when a plaintiff 4 makes a clear showing that it is entitled to such relief. See Winter v. Natural Res. Defense Council, 5 Inc., 129 S. Ct. 365, 376 (2008). A temporary restraining order may be issued without providing the 6 opposing party an opportunity to be heard only if "specific facts in an affidavit or a verified 7 complaint clearly show that immediate and irreparable injury, loss, or damage will result to the 8 movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A). 9 The standards for a temporary restraining order and a preliminary injunction are the same. See 10 Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). 11 A plaintiff must demonstrate (1) a likelihood of success on the merits, (2) a likelihood of irreparable 12 harm that would result if an injunction were not issued, (3) the balance of equities tips in favor of the irreparable injury must be both likely and immediate. See id. at 374-75; Carribean Marine Services 15 Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) ("a plaintiff must demonstrate immediate D 16 threatened injury as a prerequisite to preliminary injunctive relief").

COURT 13 plaintiff, and (4) an injunction is in the public interest. See Winter, 129 S. Ct. at 376. The C

TATES 17 The Americans with Disabilities Act ("ADA") provides: "No person shall discriminate against S 18 any individual because such individual has opposed any act or practice made unlawful by this 19 chapter or because such individual made a charge, testified, assisted, or participated in any manner 20 in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). A plaintiff 21 must establish the following three elements to state a retaliation claims under the ADA: 1) that the 22 plaintiff engaged in statutorily protected activity; 2) that the plaintiff suffered an adverse action; and 23 3) that the adverse action was causally related to the protected activity. See Coons v. Sec'y of U.S. 24 Dep't Treasury, 383 F.3d 879, 887 (9th Cir. 2004). 25 The court DENIES Plaintiff's request to consider if he needs an injunction or temporary 26 retraining order because the role of the court is not to act as a legal counselor for a party. If Plaintiff 27 files a motion for an injunction or temporary restraining order, it will be evaluated according to the 28 standard described above. Additionally, the court separately issues its standard order for litigants 1 without a lawyer. That order describes resources that may be useful to Plaintiff.

IT IS SO ORDERED.

20120420

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