The opinion of the court was delivered by: Edward J. Davila United States District Judge
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND DISMISSING WITH PREJUDICE
On August 23, 2012, Plaintiff Maurice Davis ("Plaintiff") filed a complaint against the United States Paralympics-USOC, the United States Olympic Committee ("USOC"), and the 20 International Paralympic Committee (collectively "Defendants") seeking an ex parte temporary 21 restraining order ("TRO") compelling Defendants to " let Plaintiff compete in the 50 meter 22 freestyle swim event at the S6 level at the Paralympics which will take place in London, England 23 from August 20, 2012 to and including September 9, 2012." Dkt. No. 1-1 (Prop. Order). Plaintiff 24 alleges that he has suffered discrimination on the basis of race and that he will be irreparably 25 harmed unless the court grants this motion for a TRO.
The Complaint alleges that on May 17, 2012 Plaintiff, a black male, went to the University 27 of Cincinnati for his scheduled "classification session," to try out for the Paralympic swim competition. Compl., ECF No. 1 ¶¶ 5-6. Plaintiff was tested by two white males, and told at the 2 end of his test that he was not eligible to compete. Compl. ¶¶ 6-7. Plaintiff appealed the decision, 3 and was retested on May 18, 2012 by a white female examiner and a white male examiner. Compl. 4 ¶ 8. The female examiner initially told Plaintiff he had passed; however, after some delay, the two 5 examiners returned to inform Plaintiff he had not in fact passed. Compl. ¶¶ 9-11. Plaintiff believes 6 he was discriminated against on account of his race. Compl. at 4:3-9. 7
Since returning from Cincinnati, Plaintiff has sought a TRO relating to the Paralympic 8 swim competition three times before Judge Koh. See 12-CV-02999 at Dkt. No. 1, 5, and 10. This 9 action is thus Plaintiff's fourth attempt in this district to obtain a TRO related to the Paralympics 10 swim competition. The first TRO, filed on June 11, 2012, named only the USOC as Defendant, and requested the court direct the USOC to allow Plaintiff to compete in the Paralympic swim trials scheduled for June 14-16, 2012, at Bismarck State College. The court denied this TRO for failure 13 to comply with the procedural requirements governing the filing of an ex parte TRO and for failure 14 to show a likelihood of success on the merits. See 12-CV-02999 at Dkt. No. 4. The second TRO, 15 filed on July 3, 2012 as part of an amendment to the complaint, named the same Defendant and 16 requested the same relief as the first request for a TRO. This second TRO was denied for a failure 17 to show a likelihood of success on the merits as well as failure to show a likelihood of irreparable 18 injury. See 12-CV-02999 at Dkt. No. 9. The third TRO, filed with a "First Amended Complaint," 19 added the United States Paralympics-USOC and the International Paralympic Committee as 20 Plaintiff the opportunity to compete in the 50 meter freestyle swim competition at the 26 level 22 29m 2012 to and including 9 September 2012." See 12-CV-02999 at Dkt. No. 10. This third TRO 24 was likewise denied for failure to show a likelihood of success on the merits. See 12-CV-02999 at 25 Dkt. No. 4. In addition, the court denied Plaintiff's motion to proceed in forma pauperis, finding 26 that in light of Plaintiff's failure to allege additional facts or submit any evidence to any of his 27 requests for TROs, Plaintiff's claims were without basis and thus frivolous under 28 U.S.C. 28 Defendants, and requested, as in the instant action, that the court direct Defendants "to allow 21 (classification level) at the Paralympics which will take place in London, England from August 23 1915(e)(2)(B). See 12-CV-02999 at Dkt. No. 12, p. 6. The court dismissed Plaintiff's First Amended Complaint without leave to amend. See 12-CV-02999 at Dkt Entry 12, p. 6-7. 3 5 being relitigated in another case. This principle applies when there is "(1) an identity of claims, (2) 6 a final judgment on the merits, and (3) privity between parties." Turtle Island Restoration Network 7
Claim preclusion clearly applies in this action. First, the claims in this action are identical 9 to those in the previous three actions. Each of Plaintiff's TRO requests has been based on 10
2012 in Cincinnati, Ohio. While Plaintiff has not specifically alleged any cause of action, a liberal reading of his complaint suggests that he intends to state claims under the Equal Protection Clause 13 of the Fourteenth Amendment and 42 U.S.C. §§ 1981 and 1983. See Boag v. MacDougall, 454 14 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982) (instructing courts to liberally construe the 15 pleadings of pro se litigants). These claims mirror those found in Plaintiff's three previous 16 requests for TROs. 17
18 request for a TRO, and dismissed his complaint without leave to amend. See 12-CV-02999 at Dkt. 19 957 (9th Cir. 2002) (holding that dismissal based on a plaintiff's failure to plead a cognizable claim 21 is a "judgment on the merits" for res judicata purposes) (citing Federated Dep't Stores v. Moitie, 22
Finally, the parties are identical. In the instant action, Plaintiff has named the USOC, the United States Paralympics-USOC and the International Paralympic Committee as Defendants. 25 States Paralympics-USOC and the International Paralympic Committee in his third request for 27
TRO and First Amended Complaint. 28
Claim preclusion, also known as res judicata, prevents issues decided by one court from v. U.S. Dep't of State, 673 F.3d 914, 917 (2012) (internal quotations omitted). 8
Plaintiff's experience at the Paralympic swim classification session that took place on May 17-18, Next, a final judgment has already issued on these claims. The court denied Plaintiff's third No. 12. Such a dismissal constitutes a final judgment. See Stewart v. U.S. Bancorp, 297 F.3d 953, 20 Previously, ...