-CKD (PS) Alston v. City of Elk Grove et al, No. 2:2011cv00678 - Document 23 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/14/2011 ORDERING that Plaintiff's 13 motion to receive service of process via e-mail is GRANTED under the following conditions. Plaintiff will be permi tted to enroll in the court's electronic filing system on the condition that she personally appear at the Clerk's Office within fourteen (14) days of service of this order and provide: (1) a copy of this order; (2) proof of photo identifica tion; and (3) a General Delivery address, which can be obtained from the U.S. Postal Service. Upon plaintiff's compliance with these conditions, the Clerk shall enroll plaintiff in the ECF electronic filing system and shall create a docket entry reflecting plaintiff's compliance and enrollment. The Clerk shall immediately serve a copy of this order and the Court's 22 order on plaintiff via e-mail at liberty.justice.iv.all@gmail.com. Plaintiff will be GRANTED 28 days from th e date of service of this order to amend her complaint, if she elects to do so, in accordance with the court's 10/14/2011 order. IT IS ALSO HEREBY RECOMMENDED that plaintiffs 14 motion for a temporary restraining order and a preliminary injunction be denied. Motion referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)
Download PDF
-CKD (PS) Alston v. City of Elk Grove et al Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CD ALSTON, 11 12 13 14 Plaintiff, vs. CITY OF ELK GROVE, et al., Defendants. 15 16 No. CIV S-11-0678 KJM CKD PS ORDER AND FINDINGS AND RECOMMENDATIONS / Plaintiff is proceeding in this action pro se and in forma pauperis. This 17 proceeding was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21), pursuant to 28 18 U.S.C. § 636(b)(1). On July 6, 2011, plaintiff filed a motion to receive service of process 19 through e-mail. (Dkt. No. 13.) That same day, plaintiff also filed a motion for a temporary 20 restraining order and a preliminary injunction. (Dkt. No. 14.) After reviewing the papers in 21 support of the motions, and for good cause appearing, the court FINDS AS FOLLOWS: 22 BACKGROUND 23 In this action, plaintiff primarily asserts claims for constitutional violations under 24 42 U.S.C. § 1983 and for related state law torts. She alleges that defendant Lance McDaniel, a 25 City of Elk Grove police officer, stopped plaintiff’s vehicle without probable cause and 26 approached plaintiff in a hostile and aggressive manner. During the course of the traffic stop, Dockets.Justia.com 1 McDaniel allegedly pulled out the window of plaintiff’s vehicle with his hands, interrupted 2 plaintiff’s 911 call, pulled plaintiff out of her vehicle, and later forcefully yanked plaintiff to the 3 ground by her hair causing plaintiff to hit the ground face first. Plaintiff’s car was searched and 4 towed, and plaintiff was arrested. Although McDaniel is alleged to be the primary actor, plaintiff 5 contends that two other officers, defendants Chris Morrow and Jorge Benitez, later arrived at the 6 scene and were also involved in her detention and arrest. Jeff Murray, the supervisor of officers 7 McDaniel, Morrow, and Benitez, was also allegedly on the scene and had some interaction with 8 plaintiff in the course of her arrest. According to plaintiff, McDaniel filed false charges against 9 her and made various false statements in his report related to the incident, which were 10 corroborated by Morrow, Benitez, and Murray. The charges were later dismissed. 11 Subsequently, on March 11, 2011, plaintiff filed suit against McDaniel, Morrow, 12 Benitez, Murray, Robert Lehner (the Chief of Police), Craig Potter and Scott French 13 (investigators with the Elk Grove Police Department Bureau of Professional Standards), the Elk 14 Grove Police Department Bureau of Professional Standards, the Elk Grove Police Department, 15 and the City of Elk Grove. 16 On June 7, 2011, the court granted plaintiff’s motion to proceed in forma pauperis 17 and dismissed her complaint with leave to amend. (Dkt. No. 8.) Most recently, on October 14, 18 2011, after screening plaintiff’s second amended complaint, the court dismissed several 19 defendants and several of plaintiffs’ claims, granting plaintiff 28 days to amend her complaint 20 and cure the deficiencies outlined in the order. (Dkt. No. 22.) Because plaintiff’s complaint is 21 still in the screening stage, none of the defendants have been served with process. 22 DISCUSSION 23 Motion to Receive Service of Process Through E-mail 24 Plaintiff contends that she “has been displaced” and therefore “does not have an 25 address in which to receive any service of process.” (Dkt. No. 13.) She also contends that she no 26 longer has possession of her former post office box. (Id.) 2 1 In light of plaintiff’s representations, she will be permitted to enroll in the court’s 2 electronic filing (“ECF”) system on the condition that she personally appear at the Clerk’s Office 3 within fourteen (14) days of service of this order and provide: (1) a copy of this order; (2) proof 4 of photo identification; and (3) a General Delivery address, which can be obtained from the U.S. 5 Postal Service. However, plaintiff is cautioned that access to ECF will be terminated if she 6 makes unnecessary voluminous filings or otherwise abuses her access to ECF. 7 The court also notes that a copy of the court’s October 14, 2011 order (dkt. no. 22) 8 granting plaintiff leave to amend her complaint was served on plaintiff via mail and returned as 9 undeliverable, likely because plaintiff no longer has possession of her former post office box. 10 Consequently, the Clerk will be directed to serve a copy of this order and the October 14, 2011 11 order on plaintiff via e-mail, and plaintiff will be allowed 28 days from the date of service of this 12 order to amend her complaint, if she elects to do so, in accordance with the court’s October 14, 13 2011 order. 14 Motion for a Temporary Restraining Order and a Preliminary Injunction 15 The standards governing the issuance of temporary restraining orders are 16 “substantially identical” to those governing the issuance of preliminary injunctions. Stuhlbarg 17 Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). 18 Therefore, “[a] plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, 19 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 20 equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass’n, 21 Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. 22 Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008)). A TRO or preliminary injunction 23 is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is 24 entitled to such relief.” Winter, 555 U.S. at 22, 129 S. Ct. at 376. 25 26 In the instant motion, plaintiff seeks injunctive relief against various law enforcement agencies throughout the Sacramento area. She describes several encounters with 3 1 law enforcement officers from different law enforcement agencies and police departments, 2 alleging illegal searches, detentions, arrests, and the use of excessive force. Plaintiff states that 3 there is a “definite likelihood that she will be targeted again” and claims that she “is in 4 immediate danger and fears for her safety.” (Dkt. No. 14, at p. 2.) 5 As an initial matter, plaintiff’s motion improperly requests injunctive relief 6 against several entities who are not even parties to this action, including the County of 7 Sacramento, the Sacramento County Sheriff Department, the City of Sacramento, and the City of 8 Sacramento Police Department. The court’s records reveal that, apart from the instant action, 9 plaintiff has filed actions against several different police departments in the broader Sacramento 10 metropolitan area. See 2:11-cv-2077-KJM-GGH (involving Sacramento County, the El Dorado 11 County Sheriff Department, Amador County, Alpine County, and the California Department of 12 Fish and Game); 2:11-cv-2078-JAM-GGH (involving the Sacramento County Sheriff 13 Department); 2:11-cv-2079-JAM-EFB (involving the Sacramento City Police Department); and 14 2:11-cv-2281-GEB-GGH (involving the Sacramento County Sheriff Department). Plaintiff 15 appears to be incorporating many of these claims and entities into the instant motion. 16 Moreover, plaintiff fails to show that she is likely to suffer irreparable harm in the 17 absence of preliminary relief. While plaintiff allegedly had several dissatisfactory experiences 18 with law enforcement officials, these encounters have been with different police officers and 19 different police departments. Apart from plaintiff’s general belief that she will be targeted again 20 for a search, detention, or arrest, there is no evidence that several police departments in the 21 Sacramento area are engaging in a coordinated effort to violate plaintiff’s constitutional rights. 22 The injunctive relief requested is also overly broad and impermissibly vague. For example, 23 plaintiff requests injunctive relief against “physical assault, harassment, bullying, and 24 infringement of civil rights” with respect to multiple law enforcement agencies. (Dkt. No. 14, at 25 p. 6.) 26 \\\\ 4 1 Plaintiff has an adequate remedy at law, namely, her several actions under 42 2 U.S.C. § 1983, during which plaintiff will have an opportunity to have her claims against the 3 various defendants adjudicated on the merits. Presently, however, plaintiff fails to make a clear 4 showing that she is entitled to the extraordinary remedy of a TRO or a preliminary injunction. 5 In accordance with the above, IT IS HEREBY ORDERED THAT: 6 1. Plaintiff’s motion to receive service of process via e-mail (dkt. no. 13) is 7 granted under the following conditions. Plaintiff will be permitted to enroll in the court’s 8 electronic filing (“ECF”) system on the condition that she personally appear at the Clerk’s Office 9 within fourteen (14) days of service of this order and provide: (1) a copy of this order; (2) proof 10 of photo identification; and (3) a General Delivery address, which can be obtained from the U.S. 11 Postal Service. 12 2. Upon plaintiff’s compliance with these conditions, the Clerk shall enroll 13 plaintiff in the ECF electronic filing system and shall create a docket entry reflecting 14 plaintiff’s compliance and enrollment. 15 16 3. The Clerk shall immediately serve a copy of this order and the Court’s October 14, 2011 order (dkt. no. 22) on plaintiff via e-mail at liberty.justice.iv.all@gmail.com. 17 18 4. Plaintiff will be granted 28 days from the date of service of this order to amend her complaint, if she elects to do so, in accordance with the court’s October 14, 2011 order. 19 20 IT IS ALSO HEREBY RECOMMENDED that plaintiff’s motion for a temporary restraining order and a preliminary injunction (dkt. no. 14) be denied. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 23 fourteen (14) days after being served with these findings and recommendations, plaintiff may file 24 written objections with the court. Such a document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 26 //// 5 1 objections within the specified time may waive the right to appeal the District Court's order. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: November 14, 2011 4 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 CKD/5 9 alston.678.tro.fr.wpd 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6