United States District Court, S.D. California
BART D. KIMBER, Plaintiff,
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.
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
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.)
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.)
A. Motion for Injunctive Relief
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.)
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
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)).
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
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).
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 ...