(PS) Cooley v. City of Vallejo et al, No. 2:2014cv00620 - Document 29 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/20/14 recommending that plaintiff's motion for a TRO 27 be denied. F&R referred to Judge Troy L. Nunley. Objections to F&R due within fourteen (14) days. (Kaminski, H)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDERICK MARCELES COOLEY, 12 Plaintiff, 13 14 No. 2:14-cv-0620-TLN-KJN PS v. FINDINGS AND RECOMMENDATIONS CITY OF VALLEJO, et al., 15 Defendants. 16 17 On June 16, 2014, plaintiff filed a motion for a temporary restraining order (“TRO”). 18 (ECF No. 27.)1 For the reasons discussed below, the court recommends that the motion for a 19 TRO be denied. Plaintiff, proceeding without counsel, initially commenced this 42 U.S.C. § 1983 action 20 21 on March 6, 2014. (ECF No. 1.) The action arises from a September 2011 incident wherein 22 defendant Vallejo Police Department sergeant Brett Clark allegedly ordered several officers to 23 force their way into the house of plaintiff’s friends, after which defendant Vallejo Police 24 Department officer Dustin Joseph purportedly, without warning, deployed his taser in dart mode 25 into plaintiff’s forehead just inches away from plaintiff’s eye, resulting in numerous injuries. 26 Plaintiff asserts 42 U.S.C. § 1983 claims for excessive force in violation of the Fourth 27 28 1 This action proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 Amendment against officers Clark and Joseph, as well as a Monell claim against the City of 2 Vallejo. Plaintiff seeks $20,000,000.00 in compensatory and punitive damages, including 3 damages for emotional distress. (See generally Complaint, ECF No. 1; Civil Cover Sheet ECF 4 No. 2; First Amended Complaint, ECF No. 20.) 5 On May 12, 2014, the court granted defendants’ motion to dismiss plaintiff’s original 6 complaint on the basis that plaintiff’s claims, as pled, were time barred under the applicable 7 statute of limitations. (ECF No. 19.) However, the court granted plaintiff leave to file a first 8 amended complaint which demonstrates that plaintiff’s claims were not time barred, and that 9 tolling under California Government Code section 945.3 applied to plaintiff’s claims. (Id.) 10 Subsequently, on May 19, 2014, plaintiff filed a first amended complaint (ECF No. 20), and on 11 June 16, 2014, defendants filed a motion to dismiss the first amended complaint, which remains 12 pending and is presently set for hearing on July 24, 2014. (ECF No. 22.) That motion contends 13 that plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Id.) 14 Then, that same day, on June 16, 2014, plaintiff filed the instant motion for a TRO. (ECF 15 No. 27.) Plaintiff essentially requests the court to enjoin and restrain defendant officer Joseph 16 and all other City of Vallejo police officers from conducting unconstitutional detentions, “Terry 17 Stops,” searches, and seizures. (ECF No. 27-1.) Plaintiff also requests that defendant officer 18 Joseph and a non-party officer, S. Kerr, be restrained from knowingly coming within 1000 feet of 19 plaintiff “for any reason.” (Id.) 20 A temporary restraining order, as a form of injunctive relief, is “an extraordinary remedy 21 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Niu v. 22 United States, 821 F. Supp. 2d 1164, 1168 (C.D. Cal. 2011) (citing Winter v. Natural Res. Def. 23 Council, Inc., 555 U.S. 7, 22 (2008)). The court may grant a TRO where the moving party is 24 “likely to succeed on the merits,…likely to suffer irreparable harm in the absence of preliminary 25 relief,…the balance of equities tips in his [or her] favor, and…an injunction is in the public 26 interest.” Winter, 555 U.S. at 20; see also Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 27 F.3d 832, 839 n.7 (9th Cir. 2001) (analysis for temporary restraining orders and preliminary 28 injunctions is “substantially identical”). “Under the sliding scale approach…the elements…are 2 1 balanced, so that a stronger showing of one element may offset a weaker showing of another.” 2 Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (citations and internal quotation marks 3 omitted); see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) 4 (preliminary injunction appropriate when a moving party demonstrates that “serious questions 5 going to the merits were raised and the balance of hardships tips sharply in the [moving party’s] 6 favor,” assuming other Winter elements are also met). 7 In this case, it is difficult to make a determination regarding likelihood of success on the 8 merits, especially in light of the potential Heck bar of this action raised by defendants’ pending 9 motion to dismiss. That said, plaintiff has not yet had an opportunity to oppose that motion, and 10 the court in no way prejudges the outcome of the motion to dismiss prior to the completion of full 11 briefing. However, even assuming arguendo that plaintiff has raised at least serious questions 12 going to the merits, the court finds that the other Winter elements counsel against issuance of a 13 TRO. 14 Plaintiff argues that he is likely to suffer irreparable harm absent preliminary relief, 15 because he contends that “there is a real probability that Defendant Dustin Joseph will create a 16 violent encounter with Plaintiff in the future.” (ECF No. 27 at 2.) Plaintiff’s contention is based 17 on a recent June 10, 2014 incident where he was allegedly unjustifiably stopped, detained, and 18 threatened in the parking lot of a Safeway store by defendant Joseph and non-party officer S. 19 Kerr, and was ultimately booked on a charge for possession of a controlled substance, with his 20 vehicle being towed. (See Declaration of Frederick Marceles Cooley, ECF No. 26 [“Pl’s Decl.”] 21 ¶¶ 13-32, 35.) However, the merits of that recent incident is not before the court in this action, 22 and the court cannot on the present record determine whether the officers’ conduct in that incident 23 was unconstitutional or lawful under the circumstances. Although plaintiff alleges that defendant 24 Joseph made remarks to plaintiff regarding this litigation during the June 10, 2014 encounter, 25 there is no indication that defendant Joseph is planning any other specific actions against plaintiff 26 or that any other harm against plaintiff is imminent. 27 Additionally, the court finds that the requested injunctive relief would not be in the public 28 interest. Plaintiff’s request that defendant Joseph and non-party officer S. Kerr be restrained from 3 1 knowingly coming within 1000 feet of plaintiff “for any reason” would unduly interfere with law 2 enforcement operations in the City of Vallejo and thereby negatively impact public safety. These 3 officers may well need to come into contact with plaintiff for legitimate reasons as part of their 4 law enforcement activities, and the City of Vallejo should not be required to reallocate police 5 resources based on plaintiff’s particular location. To the extent that plaintiff requests that officers 6 be generally restrained from engaging in unconstitutional stops, detentions, searches, and 7 seizures, an injunction is unnecessary, because they are already required to comply with 8 applicable constitutional and other law, and can be held liable for any violations. 9 Finally, in light of the court’s finding that plaintiff is not likely to suffer irreparable harm 10 absent preliminary relief, and that plaintiff’s requested relief would unduly interfere with law 11 enforcement operations and public safety, the court also concludes that the balance of equities 12 does not tip in plaintiff’s favor. 13 14 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a TRO (ECF No. 27) be denied. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 17 days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 20 shall be served on all parties and filed with the court within fourteen (14) days after service of the 21 objections. The parties are advised that failure to file objections within the specified time may 22 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 23 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 24 25 IT IS SO RECOMMENDED. Dated: June 20, 2014 26 27 28 4
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