Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^** 

Bart Willoughby, a California state prisoner, appeals pro se the district court's denial of his Ex Parte Request for a Temporary Restraining Order. We dismiss the appeal for lack of a final appealable order.

This court may hear appeals from interlocutory orders of the district court which grant, continue, modify, refuse, or dissolve injunctions. 28 U.S.C. § 1292(a) (1). Ordinarily, an appeal does not lie from the denial of an application for a temporary restraining order; such appeals are considered premature and are disallowed " [i]n the interests of avoiding uneconomical piecemeal appellate review." Religious Tech. Center, Church of Scientology v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989) (citing Kimball v. Commandant Twelfth Naval Dist., 423 F.2d 88, 89 (9th Cir. 1970)). In addition, the denial of a TRO is not generally appealable unless it effectively decides the merits of the case. Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1388 (9th Cir. 1986), cert. denied, 484 U.S. 815 (1987).

We have recognized, however, that a denial of a TRO may be appealed if the circumstances render the denial "tantamount to the denial of a preliminary injunction." Religious Tech. Center, 869 F.2d at 1308 (citing Environmental Defense Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir. 1980)). In Andrus we held the denial of the TRO was tantamount to the denial of a preliminary injunction because of the presence of two factors: the denial of the TRO followed a "full adversary hearing" and "in the absence of review, the appellants would be effectively foreclosed from pursuing further interlocutory relief." Id.

Here, Willoughby's ex parte motion specifically requested the district court issue a temporary restraining order. The fact that Willoughby cited to Fed. R. Civ. P. 65(a) in his ex parte motion does not change this result. Rule 65(a) prohibits the grant of a preliminary injunction without issuance of notice to the adverse party, and provides for the consolidation of a preliminary injunction hearing with a hearing on the merits. Willoughby did not provide the defendants with notice of his motion. Moreover, the district court did not hold an adversary hearing, nor is Willoughby precluded from pursuing further interlocutory relief. Finally, the district court's denial of the TRO did not effectively decide the merits of Willoughby's section 1983 action. The merits of his case are proceeding before the district. Therefore, the denial of the TRO was not tantamount to the denial of a preliminary injunction and this appeal is premature.

DISMISSED.