United States District Court, S.D. California
ESTATE OF GERARDO CRUZ-SANCHEZ, by and through his successor-in-interest Paula Garcia Rivera, et al., Plaintiffs,
THE UNITED STATES OF AMERICA, et al., Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR RESTRAINING
ORDER (DOC. NO. 123)
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' motion for restraining
order. (Doc. No. 123.) On December 17, 2018, Plaintiff filed
a response to Defendants' motion. (Doc. No. 125.) On
December 20, 2018, the Court held a hearing on the instant
motion. Based on the arguments presented in the briefing as
well as at the hearing, the Court DENIES
Defendants' motion for restraining order.
instant matter revolves around the arrest, incarceration and
eventual death of Gerardo Cruz-Sanchez. (See
generally Doc. No. 83.) Mr. Cruz-Sanchez was
incarcerated at the Otay Mesa Detention Center
(“OMDC”). (Id. ¶ 1.) CoreCivic
contracts with the United States to provide detention
services at OMDC. (Doc. No. 107-1 at 6.) CoreCivic provides
support to facilitate the delivery of healthcare services.
(Id. at 8.)
February 11, 2016, Mr. Cruz-Sanchez had an intake assessment
and reported no medical problems. (Id. at 12.) On
February 12, 2016, Mr. Cruz-Sanchez was seen regarding pain
in his upper eye lid. (Id.) On February 14, 2016,
Mr. Cruz-Sanchez was seen by a nurse regarding a headache,
sore throat, cough and nasal congestion for two days.
(Id.) On February 16, 2016, Mr. Cruz-Sanchez saw
another nurse complaining that he has had a cough, body
aches, and sore throat for one week. (Id.) On
February 17, 2016, Mr. Cruz-Sanchez saw a physician's
assistant regarding the same symptoms. (Id.) On
February 26, 2016, an emergency call was made for Mr.
Cruz-Sanchez. (Id. at 16.) Mr. Cruz-Sanchez was then
brought to the medical clinic and seen by a doctor.
(Id.) The doctor then called 911 and Mr.
Cruz-Sanchez was transported to the hospital. (Id.)
On February 29, 2016, Mr. Cruz-Sanchez passed away from
pneumonia. (Id. at 20.)
March 23, 2017, the San Diego Tribune ran an article
regarding the instant litigation. (Doc. No. 123 at 2.) On
December 13, 2018, ABC News published a web article with an
accompanying Nightline television piece. (Id.) The
Nightline piece contains an on-camera interview of
Plaintiffs' counsel and Mr. Cruz-Sanchez's wife.
(Id.) Plaintiffs' counsel also provided ABC News
with audio of call recordings from Mr. Chavez-Lopez and video
of Mr. Chavez-Lopez's deposition testimony.
seek an order restraining all parties and counsel from making
or providing extrajudicial statements, comments or
communications about the subject matter of this lawsuit
directly or indirectly to the media. (Doc. No. 123 at 1.)
temporary restraining order (“TRO”) may be
granted 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, as a
form of preliminary injunctive relief, is to preserve the
status quo and prevent irreparable harm “just so long
as is necessary to hold a hearing, and no longer.”
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto
Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974). A
request for a TRO is evaluated by the same factors that
generally apply to a preliminary injunction. See
Stuhlbarg Int'l Sales Co. v. John D. Brush &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). However, a
TRO is an “extraordinary remedy” and is
“never awarded as of right.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing
Munaf v. Geren, 553 U.S. 674, 689-90 (2008)).
Instead, the moving party bears the burden of demonstrating
four factors: (1) “he is likely to succeed on the
merits;” (2) “he is likely to suffer irreparable
harm in the absence of preliminary relief;” (3)
“the balance of equities tips in his favor;” and
(4) “an injunction is in the public interest.”
Winter, 555 U.S. at 20.
a plaintiff must satisfy all four of the requirements set
forth in Winter, the Ninth Circuit employs a sliding
scale whereby “the elements of the preliminary
injunction test are balanced, so that a stronger showing of
one element may offset a weaker showing of another.”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). Accordingly, if the moving party
can demonstrate the requisite likelihood of irreparable harm
and show that an injunction is in the public interest, a TRO
may issue so long as there are serious questions going to the
merits and the balance of hardships tips sharply in the
moving party's favor. Id.
assert that Plaintiffs' counsel's pattern of behavior
suggests that they will continue to use the media to
interfere with Defendants' right to a fair trial. (Doc.
No. 123 at 5.) Defendants also contend that Counsel has a
fiduciary responsibility to avoid obstructing the fair
administration of justice. (Id. at 6.) Specifically,
Defendants contend that some of the material ABC News
received is not part of the public domain and is subject to
the protective order. (Id. at 7.)
order may be a prior restraint on speech. Levine v.
United States Dist. Court for Cent. Dist., 764 F.2d 590,
595 (9th Cir. 1985). Attorneys “do not lose their
constitutional rights at the courthouse doors.”
Id. Here, Plaintiffs' counsel states that the
San Diego Tribune and Plaintiffs' counsel had no contact
prior to the article being published. (Doc. No. 125 at 5.)
Further, ABC News decided to do the story and then contacted
Plaintiffs' counsel about the court filings.
(Id.) ABC News also contacted Defendants for comment
and Defendants did provide a comment on the Nightline video
clip. (Id.) Attorneys are allowed to comment on
pending litigation under the First Amendment. See Gentile
v. State Bar of Nev., 501 U.S. 1030, 1052 (1991). Here,
the Plaintiffs' counsel's First Amendment interests
and public's right of access outweigh Defendants'
argue that Plaintiffs' counsel's actions have impeded
Defendants' right to a fair trial and impartial jury.
(Doc. No. 123 at 4.) However, the news cycle is constantly
changing. If this case proceeds to trial, likely few jurors,
if any at all, will recall having seen the articles. The
venire may be prescreened with regard to whether or not they
have seen any news reports on this ...