Scott E. Pombrio v. A. Villaragosa et al, No. 2:2010cv05604 - Document 15 (C.D. Cal. 2010)
Court Description: ORDER DENYING REQUESTS FOR INJUNCTIVE RELIEF by Judge George H. King: denying 6 Motion for Preliminary Injunction; and denying 14 Request for TRO. The Request and Motion are DENIED. IT IS SO ORDERED. (mz) (Entered: 09/08/2010)
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Scott E. Pombrio v. A. Villaragosa et al Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 SCOTT E. POMBRIO, ) NO. CV 10-5604-GHK (MAN) ) Plaintiff, ) ) v. ) ORDER DENYING REQUESTS FOR ) INJUNCTIVE RELIEF CITY-COUNTY OF LOS ANGELES, et al.,) ) Defendants. ) ___________________________________) 16 17 This action commenced on August 16, 2010, after plaintiff was 18 granted leave to proceed without prepayment of the filing fee and filed 19 his original complaint. 20 Amended 21 violations of the American With Disabilities Act (“ADA”) that allegedly 22 occurred in connection with plaintiff’s unsuccessful attempts to enter 23 the Los Angeles County Law Library (“LACLL”) and the Los Angeles Public 24 Library, Main Branch (“LAPL”) with his personal possessions in tow 25 and/or utilize the exterior premises of the LAPL in late July 2010. 26 (Complaint at 3-5.) 27 Los Angeles, the County of Los Angeles, and Los Angeles Mayor Antonio 28 Villaraigosa. Complaint On August 20, 2010, plaintiff filed his First (“Complaint”) The Complaint rests on asserted The named defendants in this action are the City of (Id. at 1, 3, 5.) Dockets.Justia.com 1 The Complaint alleges a single cause of action. (Complaint at 7- 2 9.) Plaintiff contends that defendants have violated the ADA by 3 implementing and/or enforcing a policy at LACLL and LAPL that prohibits 4 library users from bringing “bags” containing their personal possessions 5 into the libraries and from “check[ing]” such bags and possessions 6 and/or leaving them on outside patios. (Id. at 3-4.) Plaintiff alleges 7 that he is homeless and physically disabled, it causes him pain to walk 8 up and down hills, and the above library policies are barriers to his 9 ability to use such libraries. (Id. at 3, 8-9.) Although this is 10 somewhat unclear, plaintiff also appears to rest his ADA claim on a July 11 31, 2010 incident at the LAPL, during a private party held on the 12 exterior library premises on a Saturday evening, when “security guards” 13 prevented plaintiff from utilizing a fountain and forced him to exit the 14 premises via a stairway. 15 policies and events constituted discrimination on the basis of his 16 physical disability in violation of the ADA. (Id. at 5.) Plaintiff alleges that these (Id. at 7-9.)1 17 18 As plaintiff has been advised by Order of August 17, 2010, United 19 States Magistrate Judge Margaret A. Nagle presently is screening the 20 Complaint pursuant to 28 U.S.C. § 1915(e)(2). 21 defendant has been served with process in this case. Thus, as yet, no 22 23 On August 16, 2010, plaintiff filed a Motion For A Preliminary 24 25 26 27 28 1 The original complaint indicated that it was brought under both the ADA and 42 U.S.C. § 1983, and it alleged federal constitutional violations in addition to ADA violations. The instant Complaint states expressly (at 1) that it is brought pursuant to the ADA, as well as California statutory and regulatory law, and appears to have omitted the Section 1983 claim, although this is somewhat unclear given the bare references to “42 USC § 1983” set forth at the top of pages 5-9. 2 1 Injunction (“Motion”). The Motion states that the relief sought is an 2 order granting plaintiff, along with his property, “full and equal 3 access” to all of “defendants[’] buildings, facilities, libraries.” 4 (Motion at 1.) 5 authorities (“Memorandum”), plaintiff appears to limit the relief sought 6 to unencumbered access, with his property, to LACLL and LAPL. Plaintiff 7 complains that, on July 28, 2010, he was not allowed to bring into LACLL 8 bags containing his possessions, even though he had been allowed to do 9 so the day before. However, in an accompanying memorandum of points and Plaintiff alleges that it is physically difficult 10 and/or painful for him to have to leave his bags elsewhere when he needs 11 to 12 “disadvantaged” and homeless persons, such as himself, should have full 13 access to both libraries, whether by being allowed to bring their 14 possessions inside or through the use of a procedure by which the 15 libraries check the possessions of persons desiring entry. use LACLL. (Memorandum at 1-3.) Plaintiff asserts that (Id. at 3.) 16 17 On September 3, 2010, plaintiff filed an “Amended TRO Request Per 18 42 USCS § 2000a-3(a) Status Of Action Request” and related proposed 19 order (“Request”). Plaintiff asks that: a hearing be scheduled for the 20 Motion; and a temporary restraining order issue, pending such hearing 21 and prior to service of the defendants with process, directing LACLL and 22 LAPL to grant him access with “all of plaintiff’s property.” 23 24 The Request does not comply with the requisites for the issuance of 25 a temporary restraining order set forth in Rule 65 of the Federal Rules 26 of Civil Procedure. 27 not submitted an affidavit. 28 defendants was not given and should not be required. The Complaint is not verified, and plaintiff has Plaintiff has not certified why notice to 3 Accordingly, the 1 requested temporary restraining order may not issue without notice. See 2 Fed. R. Civ. P. 65(b)(1). 3 4 In addition, it is well-settled that “[a] district court must have 5 personal jurisdiction over a party before it can enjoin its actions.” 6 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 111-12, 89 7 S. Ct. 1562, 1570 (1969); accord Zepeda v. United States I.N.S., 753 8 F.2d 719, 727 (9th Cir. 1983). 9 Summons and Complaint in this action. No defendant has been served with the The Court, therefore, does not 10 yet have personal jurisdiction over any defendant and cannot issue 11 injunctive relief against them. 12 (“[t]he court may issue a preliminary injunction only on notice to the 13 adverse party”). See also Fed. R. Civ. P. 65(a)(1) 14 15 Further, preliminary injunctive relief may not issue unless the 16 moving party establishes “that he is likely to succeed on the merits, 17 that 18 preliminary relief, that the balance of equities tips in his favor, and 19 that an injunction is in the public interest.” 20 Resources Defense Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 21 (2008). 22 test for the issuance of a preliminary injunction remains viable after 23 Winter, holding that “‘[a] preliminary injunction is appropriate when a 24 plaintiff demonstrates . . . that serious questions going to the merits 25 were raised and the balance of hardships tips sharply in the plaintiff’s 26 favor.’” 27 2926463, *7 (9th Cir. July 28, 2010)(citation omitted). he is likely to suffer irreparable harm in the absence of Winter v. Natural The Ninth Circuit has concluded that its “serious questions” Alliance for Wild Rockies v. Cottrell, ___ F.3d ___, 2010 WL 28 4 1 Plaintiff’s allegations do not meet either formulation of the test. 2 While the screening process has not yet been completed, it appears that 3 the Complaint may not be ordered served upon any defendant and, instead, 4 may be dismissed with leave to amend. 5 probable success on the merits at this time. 6 hardship, he has not established -- through competent evidence -- any 7 such hardship. 8 does not seek to maintain the status quo. 9 Court effect a significant change in the status quo, namely, to issue an 10 order prohibiting two large public libraries from enforcing their 11 policies limiting the items patrons may bring into the libraries. Given 12 the safety or other public interest concerns potentially underlying such 13 policies, the showing by plaintiff is inadequate to warrant the relief 14 requested. 15 plaintiff has not met his burden of showing that: 16 suffer irreparable injury in the absence of injunctive relief, the 17 balance of equities tips in his favor, and an injunction is in the 18 public interest; or that the balance of hardships tips sharply in his 19 favor. Hence, there can be no finding of While plaintiff asserts Significantly, by the Request and the Motion, plaintiff Rather, he seeks to have this Under the circumstances before it, the Court concludes that he is likely to 20 21 Accordingly, the Request and Motion are DENIED. 22 23 IT IS SO ORDERED. 24 25 DATED: 9/8/10 . 26 27 ____________________________ GEORGE H. KING UNITED STATES DISTRICT JUDGE 28 5 1 PRESENTED BY: 2 3 4 ______________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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