United States District Court, E.D. California
JEFFERSON A. McGEE, Plaintiff,
STATE OF CALIFORNIA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
August 4, 2016, plaintiff filed a motion for a temporary
restraining order to prohibit defendants from, among other
things, participating in a racially motivated conspiracy;
using “law enforcement programs and activities
receiving” federal financial assistance to discriminate
against plaintiff; conspiring with “other persons to
[commit] attempted murder, kidnaping, torture, ” and
various other crimes; and refusing to protect plaintiff and
his property. ECF No. 5. As discussed below,
plaintiff’s motion for injunctive relief must be
temporary restraining order may be issued upon a showing
“that immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be
heard in opposition.” Fed.R.Civ.P. 65(b)(1)(A). The
purpose of such an order is to preserve the status quo and to
prevent irreparable harm “just so long as is necessary
to hold a hearing, and no longer.” Granny Goose
Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423,
439 (1974). “The standards for granting a temporary
restraining order and a preliminary injunction are
identical.” Haw. County Green Party v.
Clinton, 980 F.Supp. 1160, 1164 (D. Haw. 1997); cf.
Stuhlbarg Int’l Sales Co. v. John D. Brush &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing
that an analysis of a preliminary injunction is
“substantially identical” to an analysis of a
temporary restraining order).
preliminary injunction will not issue unless necessary to
prevent threatened injury that would impair the courts
ability to grant effective relief in a pending action.
Sierra On-Line, Inc. v. Phoenix Software, Inc., 739
F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins.
Co., 871 F.2d 863 (9th Cir. 1989). A preliminary
injunction represents the exercise of a far reaching power
not to be indulged except in a case clearly warranting it.
Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143
(9th Cir. 1964). In order to be entitled to preliminary
injunctive relief, a party must demonstrate “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.” Stormans,
Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009)
(citing Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008)). The Ninth Circuit has also held that the
“sliding scale” approach it applies to
preliminary injunctions-that is, balancing the elements of
the preliminary injunction test, so that a stronger showing
of one element may offset a weaker showing of
another-survives Winter and continues to be valid.
Alliance for Wild Rockies v. Cottrell, 622 F.3d
1045, 1050 (9th Cir. 2010). “In other words,
‘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.”
filed this action against the State of California, County of
Sacramento, City of Sacramento, Sacramento Elite Security,
Bridgeport Homeowners Association, Associa of Northern
California, Sean Swarthout, and Gary Swarthout, Jr. ECF No.
1. The complaint alleges claims for violations of 42 U.S.C.
§§ 1981, 1982, 1983, 1985, 1986, 2000, and
California Civil Code § 51 based on an alleged
conspiracy to discriminate against African Americans.
plaintiff does not establish that he is likely to succeed on
his claims. His complaint rests largely on vague and
conclusory allegations of a vast conspiracy between the State
of California, Sacramento County, the City of Sacramento, and
private parties. See generally ECF No. 1. “The
‘irreducible minimum, ’ however, is that the
moving party demonstrate ‘a fair chance of success on
the merits’ or ‘questions . . . serious enough to
require litigation.” Sports Form, Inc. v. United
Press Intern., Inc., 696 F.2d 750, 753 (9th Cir. 1982)
(quoting Benda v. Grand Lodge of International
Association of Machinists & Aerospace Workers, 584
F.2d 308, 315 (9th Cir. 1978)). “No chance of success
at all . . . will not suffice.” Id. Here
plaintiffs complaint is devoid of factual allegations that,
if accepted as true, would demonstrate the existence of a
conspiracy or support a cause of action. Thus, plaintiff
fails to satisfy the likelihood of success prong of the
standard for a temporary restraining order.
plaintiff fails to demonstrate that the injunction sought is
necessary to preserve the court’s ability to grant
effective relief on his claims and that it is the least
intrusive means for doing so. He only generally claims that
he will suffer irreparable harm if an injunction does not
issue, without identifying the specific harm he will suffer.
He also fails to present evidence establishing that the
balance of equities tips in his favor. Nor is there an
adequate showing that the requested injunctive relief is in
the public interest. Thus, plaintiff has not made the showing
required to meet his burden as the party moving for
injunctive relief, and his motion must be denied.
it is hereby RECOMMENDED that plaintiffs motions for
injunctive relief (ECF No. 5) be denied.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Failure to
file objections within the specified time may waive the right