United States District Court, D. Hawaii
ORDER DENYING EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND DISMISSING COMPLAINT
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
On May 13, 2016, Plaintiff Janis Sakae Okawaki, proceeding pro se, filed a Complaint and letter entitled “Ex Parte Communications with U.S. Federal District Court Magistrate, ” which the Court construes as an ex parte motion for a temporary restraining order (“Motion”). Because Okawaki has made no showing of either a likelihood of success on the merits or irreparable harm, the Motion is DENIED. With respect to the Complaint, it is difficult, if not impossible, to discern any cognizable claims, and any mention of possible causes of action lack plausible, supporting factual allegations. Accordingly, Plaintiff fails to state a claim for relief, the Court is without subject matter jurisdiction, and the Complaint is DISMISSED with leave to amend.
Mindful that Plaintiff is proceeding pro se, the Court liberally construes her pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
I. The Motion Is Denied
Plaintiff seeks a restraining order against all defendants named in the Complaint. According to Plaintiff,
Because of this on-going criminal enterprise (even with this case pending in U.S. federal District Court), I need 24 hour 7 day a week security especially on court day. I am requesting a mandate of 24 hour 7 day a week U.S. Marshall escorts for my protection against my Defendants in my civil suit until the threat against my life is over.
Motion at 1 (Dkt. No. 2). The legal authority for Plaintiff’s unusual request is unclear.
A court may issue a temporary restraining order (“TRO”) without written or oral notice to the adverse party only if the party requesting the relief provides an affidavit or verified complaint providing specific facts that “clearly show 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). Plaintiff makes no attempt at satisfying this burden. She has not provided any specific, credible facts establishing that immediate and irreparable injury, loss, or damage will result to anyone. Here, neither the Motion nor the Complaint establishes any plausible likelihood of irreparable injury. Plaintiff also failed to certify in writing any efforts made to give notice to defendants or the reasons why notice should not be required before a TRO is considered or issued. See Fed.R.Civ.P. 65(b)(1)(B). Nor has Plaintiff made any effort to demonstrate that notice is impossible or fruitless, as required for an ex parte TRO. Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (finding that a TRO was improperly issued because notice to the adverse party was neither impossible nor would it render the action fruitless).
Moreover, even if defendants did have notice of the TRO, Plaintiff fails to meet the substantive burden to justify the remedy she seeks. The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F.Supp.2d 1241, 1247 (D. Haw. 1999). 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) (citation omitted). “That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Winter emphasized that plaintiffs seeking preliminary relief must demonstrate that “irreparable injury is likely in the absence of an injunction.” 555 U.S. at 22; see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).
As discussed below, Plaintiff fails to state either a claim upon which relief may be granted or a legitimate basis for this Court’s subject matter jurisdiction. In short, nothing in the Motion or Complaint demonstrates any past or imminent future injury to Plaintiff caused by defendants sufficient to justify the relief sought. The protracted and hyperbolic allegations in the Complaint and Motion present no serious question that she is in danger of irreparable injury, that the balance of equities tips in her favor, or that an injunction is in the public interest. Alliance for Wild Rockies, 632 F.3d at 1135. Accordingly, Plaintiff’s Motion is DENIED.
II. The Complaint Is Dismissed With Leave to Amend
Having carefully reviewed the lengthy Complaint and exhibits attached thereto, the Court concludes that it fails to state a claim or provide any basis for the Court’s subject ...