United States District Court, N.D. California
RODNEY J. QUIGLEY, Plaintiff,
YELP, INC., et al., Defendants.
ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW CAUSE
RICHARD SEEBORG United States District Judge.
Rodney J. Quiqley seeks a temporary restraining order and an
order to show cause why a preliminary injunction should not
issue in this action against various defendants - including
Yelp, Disney, Twitter, Facebook, and the Washington Times -
whom he argues have unconstitutionally blocked him from
commenting on their websites. Because plaintiff has not, at
this juncture, demonstrated any likelihood of success on the
merits, or even serious questions going to the merits of his
claims, his application is denied.
request for a temporary restraining is evaluated by the same
factors that generally apply to a preliminary injunction.
See Stuhlbarg Int'l. Sales Co. v. John D. Brushy
& Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). Thus,
as a form of preliminary injunctive relief, a temporary
restraining order is an “extraordinary remedy never
awarded as of right.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008). To obtain
preliminary relief, a plaintiff must “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.”
Id. at 20. The Ninth Circuit has clarified, however,
that courts in this Circuit should still evaluate the
likelihood of success on a “sliding scale.”
Alliance for Wild Rockies v. Cottrell, 632 F.3d
1127, 1134 (9th Cir. 2011) (“[T]he ‘serious
questions' version of the sliding scale test for
preliminary injunctions remains viable after the Supreme
Court's decision in Winter.”). As quoted
in Cottrell, that test provides, “[a]
preliminary injunction is appropriate when a plaintiff
demonstrates . . . that serious questions going to the merits
were raised and the balance of hardships tips sharply in the
plaintiff's favor, ” provided, of course, that
“plaintiffs must also satisfy the other Winter
factors” including the likelihood of irreparable harm.
Id. at 1135.
application for a temporary restraining order fails at the
outset because he has not demonstrated any likelihood of
success on the merits or shown any serious questions going to
the merits of his claims. As he acknowledges, his
constitutional claims, which form the basis of this
application, require him to show that defendants - various
private corporations and private unnamed individuals - can be
subjected to liability as state actors. See Villegas v.
Gilroy Garlic Festival Ass'n, 541 F.3d 950, 954-55
(9th Cir. 2008) (en banc) (citations omitted). “[S]tate
action may be found if, though only if, there is such a close
nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as that of
the State itself.” Id. at 955 (quoting
Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 295 (2001)) (internal quotation
marks omitted) (alteration in original).
of the factors to consider in determining whether there is a
‘close nexus' are: (1) the organization is mostly
comprised of state institutions; (2) state officials dominate
decision making of the organization; (3) the
organization's funds are largely generated by the state
institutions; and (4) the organization is acting in lieu of a
traditional state actor.” Id. (citing
Brentwood Acad., 531 U.S. at 295-99. The Supreme
Court has “held that a challenged activity may be state
action when it results from the State's exercise of
coercive power, . . . when the State provides significant
encouragement, either overt or covert, . . . or when a
private actor operates as a willful participant in joint
activity with the State or its agents.” Brentwood
Acad., 531 U.S. at 296 (citations and internal quotation
marks omitted). The Supreme Court has also “treated a
nominally private entity as a state actor when it is
controlled by an agency of the State, . . . when it has been
delegated a public function by the State, . . . when it is
entwined with governmental policies, or when government is
entwined in [its] management or control.” Id.
(citation and internal marks omitted) (alteration in
advances four unavailing theories of state action. First, he
asserts defendants perform a public function by disseminating
news and fostering free and public political debate.
“Private activity becomes a public function only if
that action has been traditionally the exclusive prerogative
of the State” - like holding elections, governing a
town, or serving as an international peacekeeping force.
Brunette v. Humane Soc'y of Ventura Cty., 294
F.3d 1205, 1214 (9th Cir. 2002), as amended on denial of
reh'g and reh'g en banc (Aug. 23, 2002) (citations
and internal quotation marks omitted). The dissemination of
news and fostering of debate cannot be said to have been
traditionally the exclusive prerogative of the government.
See Id. (holding that various media organizations
were not engaged in a public function when performing
plaintiff argues the government financed and created the
internet for the benefit of individuals and website owners,
and thereby encourages e-commerce. Even assuming the accuracy
of this description of the government's activity with
respect to the internet, plaintiff has not articulated a
theory of encouragement or coercion sufficient to show state
action because he has neither argued nor alleged that the
government encouraged or coerced defendants to take the
challenged actions - blocking him from their websites'
comments sections. See Blum v. Yaretsky, 457 U.S.
991, 1004 (1982) (“[A] State normally can be held
responsible for a private decision only when it has exercised
coercive power or has provided such significant
encouragement, either overt or covert, that the choice must
in law be deemed to be that of the State.”). Moreover,
even if plaintiff could show such coercion or encouragement,
he has not made clear why an action would lie against
defendants, as opposed to the relevant state actor - the
United States. See Id. (contemplating liability
against a state actor for coercing or encouraging the actions
of a private actor).
plaintiff conclusorily claims the existence of a joint
enterprise between defendants and the government, which he
states can be inferred from defendants providing information
to the electorate on the government's behalf. This
theory, however is not supported by plausible allegations in
the complaint, and does not, in any event, describe a joint
enterprise elevating defendants' alleged activities to
state action. A finding of state action through a joint
enterprise is appropriate where a private party and the state
engage in a joint enterprise with respect to the private
party's challenged actions. See Lugar v. Edmondson
Oil Co., 457 U.S. 922, 941 (1982) (“[W]e have
consistently held that a private party's joint
participation with state officials in the seizure of disputed
property is sufficient to characterize that party as a state
actor for purposes of the Fourteenth Amendment.”).
Plaintiff here presents no such joint enterprise.
and finally, plaintiff proclaims a pervasive entwinement
between defendants and the government because the government
maintains accounts on the defendants' websites, and uses
their websites to communicate with citizens. Whether or not
these claims are true, plaintiff fails to articulate the sort
of entwinement that would converts a private party's
actions to state action. See Evans v. Newton, 382
U.S. 296, 299 (1966) (“Conduct that is formally
‘private' may become so entwined with governmental
policies or so impregnated with a governmental character as
to become subject to the constitutional limitations placed
upon state action. The action of a city in serving as trustee
of property under a private will serving the segregated cause
is an obvious example.”); see also Brentwood
Acad., 531 U.S. at 296 (holding state action can be
found when government is entwined in the management or
control of the challenged action of a private party).
Plaintiff does not argue the government participates in the
operation or management of defendants' websites; he
merely argues the government uses the defendants'
websites in the same manner as other users. This is not
sufficient to show state action.
fails to show a likelihood of success on the merits, or even
serious questions going to the merits of his claim, because
he has not identified any actions by defendants describable
as state action and thus subject to constitutional scrutiny.
Accordingly, his application for a temporary restraining
order and order to show cause why a preliminary injunction
should not issue is denied.
IS SO ORDERED.
 Plaintiff's motion for permission
for electronic case filing, however, is ...