United States District Court, S.D. California
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
BUT REQUIRING SUPPLEMENTAL BRIEFING ON PLAINTIFF'S
FINANCIAL STATUS; ORDER DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER TO MOTION FOR PRELIMINARY
HONORABLE LARRY ALAN BURNS United States District Judge
Michael Roberts filed a complaint, a motion for temporary
restraining order (“TRO”), and a motion to
proceed in forma pauperis (“IFP”). He
then filed three amendments to his TRO motion. The complaint
alleges violations of the Fair Housing Act, the
Rehabilitation Act of 1973, the False Claims Act, and also
brings several state law claims. Roberts says he was not
allowed to keep his service dog, Arthur, at the Veterans
Village Enterprises home where he lives. He suffers from
post-traumatic stress disorder (PTSD) and mobility problems,
and a doctor recommended a service to assist him with PTSD.
motion shows that he earns $587 a month, and that his
expenses are nearly that amount. The motion's description
of expenses seems to be a summary, though, with categories
like a cell phone, gasoline and dog food accounting for about
60 to 80% of his monthly expenditures, which is a
surprisingly large percentage. Other expected expenses, such as
the cost of a kennel the complaint alleges he is being forced
to pay for, are omitted. Nor does the motion account for most
ordinary daily expenses. It appears Roberts was summarizing,
and listed certain categories as placeholders for a variety
of expenses. For example, he may have used “dog
food” to refer to all costs of owning his service dog.
But based on his representations about his income, the Court
accepts that Roberts lacks the funds to pay the filing fee,
and GRANTS his request to proceed IFP.
statute contemplates that granting leave to proceed IFP is a
decision that can be revisited. See 28 U.S.C. §
1915(e)(2). Roberts is therefore ORDERED to file a supplement
to his IFP motion, giving a more complete account of his
monthly expenses and identifying how he is able to afford the
ordinary necessities of life, whether he pays for them or
they are provided to him. He must do this within 30
calendar days of the date this order is issued. If he
fails to provide an adequate explanation, he risks revocation
of his IFP status.
Service and Notice
Veterans Village cannot yet have been served with process,
because no summons has yet been issued. But according to
Roberts' briefing on the TRO, Roberts' counsel sent
Veterans Village's counsel copies of the briefing by
briefing consists of four documents: the TRO motion (Docket
no. 2), a filing styled “Amended Declaration
of Michael Roberts” (Docket no. 5), a declaration of
attorney Bryan Pease (Docket no. 6), and a document styled
“Second Amended Declaration of Michael
Roberts” (Docket no. 7). The Court understands the
second amended Roberts declaration as being intended to
replace both the original Roberts declaration (Docket no. 2
at 21-24) and the amended Roberts declaration (Docket no. 6).
This order will treat the second amended declaration as the
operative declaration, and refer to it simply as Roberts'
the amended declarations, the briefing consists of 64 pages.
According to the documents labeled “certificates of
service, Veterans Village and its counsel were first given
notice of Roberts' intent to seek a TRO on the afternoon
of March 15. The final document was not filed until 4:24 p.m.
on March 16.
prevent defense counsel from having to prepare and file an
opposition in great haste and at significant expense, the
Court by a separate order has relieved them of any obligation
to do so until directed otherwise by the Court.
are for emergencies only. The high hurdle plaintiffs must
clear to obtain the “reflect[s] the fact that our
entire jurisprudence runs counter to the notion of court
action taken before reasonable notice and an opportunity to
be heard has been granted both sides of a dispute.”
Granny Goose Foods, Inc. v. Brotherhood of
Teamsters, 415 U.S. 423, 438 (1974). The TRO standard is
the same as the preliminary injunction standard, with the
additional requirement that the applicant show immediate
relief is necessary. See, e.g., Hunt v. Nat'l
Broadcasting Co., Inc., 872 F.2d 289, 292 (9th Cir.
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). In the alternative, the “sliding
scale” approach can be used. Under this approach, a
party seeking a preliminary injunction must show a
combination of serious questions going to the merits, and
must also show that the balance of hardships tips sharply in
the movant's favor. Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131-32 ...