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Hedges v. Wesley

United States District Court, C.D. California

February 3, 2015

MARK HEDGES
v.
DAVID S. WESLEY, ET AL

CIVIL MINUTES - GENERAL

CHRISTINA A. SNYDER, District Judge.

Proceedings: (In Chambers) PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER (Dkt. No. 4, filed January 30, 2015)

I. INTRODUCTION AND BACKGROUND

On January 30, 2015, plaintiff filed this civil rights lawsuit against defendants David S. Wesley, Alexander A. Bustamante, Debra McCarthy, Earl Paysinger, Marvin J. Southard, Jackie Lacey, Edmund G. Brown, Jr., Jon T. Rymer, and Eric H. Holder, Jr., all in their official capacities as federal, state, or municipal officials. Dkt. No. 1. Also on January 30, 2015, plaintiff filed an application for an injunction staying related state court proceedings, or for a temporary restraining order pending deliberation on that request for injunctive relief. Dkt. No. 4.

Plaintiff explains that the state proceedings he seeks to stay relate to a lawsuit he filed in Los Angeles County Superior Court against Marcy Gray Rubin, the City of Los Angeles, and the County of Los Angeles. Id. at 8. Plaintiff states that, after the Superior Court sustained a demurrer filed by the City, he appealed to the California Court of Appeal. Id. at 8-9. He alleges that a motion and other records filed by counsel for one of the defendants in that case disappeared from court records in violation of law. Id. Plaintiff further states that the Court of Appeal "ordered presiding Judge Davis S. Wesley to assign a new judge" to plaintiff's case on remand, "and then to allow [plaintiff] to continue with an amended complaint, " but that the Court of Appeal's order was not processed, and his case was not reopened, until October 27, 2014, the same day on which a case management hearing was scheduled. Id. at 9. He denies receiving notice of this hearing, or of a subsequent case status conference or a motion to dismiss his case based on non-appearance. Id. Plaintiff alleges that he "received only the clerk's minutes of the order dismissing the case, just two days before a hearing on [an] order to show cause to continue to January 22, 2015." Id. Plaintiff maintains that the Superior Court is complicit in a scheme to deny due process and other constitutional protections to persons with certain mental disabilities. Id. at 10. He also alleges that Superior Court personnel intentionally misled plaintiff about what actions he should take with regard to his litigation in that court, in order to gain an advantage in a federal lawsuit plaintiff had filed against the Superior Court in this federal District Court. Id. at 12.

Plaintiff states at a hearing on the aforementioned order to show cause took place in the state court litigation on January 22, 2015. Id. It appears that the Superior Court requested plaintiff to file a "motion to submit an untimely complaint with the first amended complaint against the City of Los Angeles by February 2, 2014." Id. Plaintiff represents that along with that amended complaint, he intends to submit an application to vacate the prior dismissal of his case "on grounds including that he was not advised and was misled by court counsel, and that [the Superior Court] ignored" significant matters in that case. Id. at 12-13.

II. LEGAL STANDARD

The standards for issuing a temporary restraining order and a preliminary injunction are "substantially identical." Stuhlbarg Int'l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an "extraordinary remedy." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). "A plaintiff 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." Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); see also Cal Pharms. Ass'n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir. 2009). Alternatively, "serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). A "serious question" is one on which the movant "has a fair chance of success on the merits." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984).

III. DISCUSSION

A. Plaintiff Has Not Satisfied Federal Rule of Civil Procedure 65.

A preliminary injunction may issue "only on notice to the adverse party." Fed.R.Civ.P. 65(a)(1). A court may issue a temporary restraining order without notice to the adverse party or its attorney only if "(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Id. 65(b)(1) (emphasis added).

Plaintiff's application for injunctive relief does not appear to include proof of service on any adverse party. In fact, there does not appear to have been a proof of service filed for either the complaint or the application for relief. Nor does plaintiff certify in writing any efforts made to give notice to any party, or explain why such notice should not be required. For this reason, the Court may not issue an injunction or temporary restraining order on plaintiff's application.

B. Plaintiff Has Not Shown That Injunctive Relief Is Warranted.

Even if plaintiff's application were not procedurally deficient, it would not justify plaintiff's requested relief. The Anti-Injunction Act, 28 U.S.C. § 2283, provides: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by an Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." In Mitchum v. Foster, the Supreme Court held that 42 U.S.C. § 1983 "is an Act of Congress that falls within the expressly authorized' ...


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