United States District Court, D. Hawaii
ORDER (1) DISMISSING COMPLAINT; (2) DENYING AS MOOT
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS;
(3) DENYING MOTION FOR RESTRAINING ORDER; AND (4) DENYING ALL
OTHER PENDING MOTIONS
Derrick K. Watson, United States District Judge
October 24, 2016, Plaintiff Xavier Flores, proceeding pro se,
filed a Complaint, Application to proceed in forma
pauperis (“IFP Application”), Motion for
Restraining Order (“Motion for TRO”), and
numerous motions seeking miscellaneous forms of
relief. The Complaint attempts to assert claims
against the United States of America and former Secretary of
State Hillary Rodham Clinton seeking compensation based on
Flores' prior work as “Acting U.S. President,
” pursuant to a “Tentative Work Agreement.”
Because Flores' claims are barred by the doctrine of
sovereign immunity and do not otherwise state a claim for
relief, the Court DISMISSES the Complaint with prejudice,
DENIES the IFP Application as moot, DENIES his Motion for
TRO, and DENIES his remaining motions.
Flores is appearing pro se, the Court liberally construes his
filings. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); 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)).
The Court recognizes that “[u]nless it is absolutely
clear that no amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint's
deficiencies and an opportunity to amend prior to dismissal
of the action.” Lucas v. Dep't of Corr.,
66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v.
Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). The
Court notes that, although he is proceeding pro se, Flores is
more than familiar with his federal court filing and pleading
responsibilities, given his numerous prior
Motion for TRO
may issue a 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). Flores makes no attempt at satisfying this
burden. He has not provided any specific, credible facts
establishing that immediate and irreparable injury, loss, or
damage will result to anyone. Indeed, neither the Motion nor
the Complaint establishes any plausible likelihood of
irreparable injury. Flores 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
Flores 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).
even if defendants did have notice of the TRO, Flores fails
to meet the substantive burden to justify the remedy he
seeks. The Motion for TRO states in full:
Due to Hillary Diane Rodham Clinton['s] access to
resources and her 30 years in office of which she has
learn/network [sic] with a wide range of people. This
restraining [order] will be in effect to all her associates,
spousers [sic], co-workers, prior (U.S.S.S.) United States
Service agents, etc. Restraining order is define [sic] no
action and contact against Xavier Flores.
Dkt. No. 2.
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).
discussed below, Flores 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 for TRO or Complaint demonstrates any past or
imminent future injury to Flores caused by defendants
sufficient to justify the relief sought. The allegations in
the Complaint and Motion for TRO present no serious question
that he is in danger of irreparable injury, that the balance
of equities tips in his favor, or that an injunction is in
the public interest. Alliance for Wild Rockies, 632
F.3d at 1135. Accordingly, the Motion for TRO is DENIED.
The Complaint Is Dismissed With Prejudice
review of the Complaint, the Court finds that Flores fails to
establish this Court's jurisdiction over this matter and
to state a claim upon which relief may be granted. As
discussed below, even liberally construed, the Complaint
fails to state any discernible basis for judicial relief.