Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kimber v. Grant

United States District Court, S.D. California

March 3, 2017

BART D. KIMBER, Plaintiff,
v.
TRACY GRANT et al., Defendants.

          ORDER(1) DENYING MOTION FOR PRELIMNARYINJUCTION; (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL; and (3) DENYING MOTION TO AMEND COMPLAINT

          BENITEZ UNITED STATES DISTRICT JUDGE.

         Pending before the Court are the Motions for Injunctive Relief, Appointment of Counsel, and to Amend the Complaint filed by Plaintiff Bart Kimber. (Docket Nos. 27, 37, 39.) The Court finds the Motion suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d.l. For the reasons set forth below, each Motion is DENIED.

         BACKGROUND

         Plaintiff filed a Complaint against Defendants (the United States of America and ten individual federal employees or officers), containing twelve claims for relief related to his allegations of invasion of privacy, wrongful termination, employment discrimination, Civil Rights violations, negligent infliction of emotional distress, "reverse sexual discrimination, " and Americans with Disabilities Act ("ADA") violations. (Docket No. 1.)

         Plaintiffs 61-page Complaint alleges that, in June 2006, he was wrongfully terminated from his employment as a firefighter with the Camp Pendleton Fire Department. (Compl.) According to Plaintiff, beginning in June 2003, after he declined Defendant Tracy Grant's invitation to engage in sexual relations, she and Defendant Dean King created a hostile work environment for him. (Id.) Plaintiff more generally alleges that all of the Defendants' acted in some way to conspire to invade his privacy, engage in employment discrimination, violate his Civil Rights, and violate the ADA, resulting in his wrongful termination and ongoing emotional distress. (Id.)

         DISCUSSION

          A. Motion for Injunctive Relief

         Plaintiff filed a Motion for Injunctive Relief alleging Defendant Jalynn Peterson is presently "denying Plaintiff the right to work by concealing, losing, or destroying his Official Personal File (OPF)." (Docket No. 27 at 2.) He seeks an order: (a) requiring Defendant Jalynn Peterson to either produce Plaintiffs Official Personnel File or admit that she concealed, lost or destroyed it; (b) payment for lost wages, benefits, creditable service, and interest; and (c) "Sanction Punitive Actions against Defendants to Halt their Discriminatory practices, and award restitution to Plaintiff to make him whole [sic]." (Id. at 4.)

         "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." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). "The first factor under Winter is the most important-likely success on the merits." Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citing Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) ("We begin with the first and most important factor:

         whether petitioners have established a likelihood of success on the merits.")). If a plaintiff has failed to show a likelihood of success on the merits, the court need not consider the other three Winter elements. Id. (citing Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.2013) (internal citation omitted)).

         When a plaintiff seeks a court order requiring another party to take affirmative action, the relief is treated as a "mandatory injunction, " which requires the plaintiff to "establish that the law and facts clearly favor her position not simply that she is likely to succeed." Id. (citing Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.2009)). The Ninth Circuit has cautioned that mandatory injunctions go "well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored." Id. (citing Stanley v. Univ. of S. CaL, 13 F.3d 1313, 1320 (9th Cir.1994)).

         Plaintiff has failed to establish a likelihood of success on the merits because his Motion is solely based on conclusory allegations. He provides no legal authority to support his request, and thus falls well below the requirement to establish that the law and facts clearly favor his position. Garcia, 786 F.3d at 740 (internal citation omitted).

         Moreover, although the Court need not consider the other factors, it notes that Plaintiff has also failed to establish a likelihood of irreparable harm. "The basis of injunctive relief in the federal courts is irreparable harm and inadequacy of legal remedies." L.A. Mem'I Coliseum Comm'n v. Nat'lFootballLeague, 634 F.2d 1197, 1202 (9th Cir. 1980). In effect, Plaintiff seeks monetary damages and production of his personnel file, the absence of which is preventing him from commencing work. (Docket No. 27.) Thus, he has not demonstrated ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.