1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT TOEPFER, et al., Case No. 2:24-cv-02366-KJM-CSK 12 Plaintiffs, ORDER DENYING IFP REQUESTS AS

MOOT, AND FINDINGS AND

13 v. RECOMMENDATIONS DENYING

PLAINTIFFS’ EX PARTE MOTION FOR

14 CITY OF VALLEJO, et al., TEMPORARY RESTRAINING ORDER

AND DISMISSING COMPLAINT WITH

15 Defendants. LEAVE TO AMEND 16 (ECF Nos. 2, 3, 18) 17 18 Plaintiffs Robert Toepfer, Shawn O’Malley, Joan Alford, James Nelson, Pam 19 Nelson, Cassandra Salinas, and Michael L. Mardell bring this action in pro per against 20 Defendants City of Vallejo, the Vallejo Police Department, Vallejo City Manager Andrew 21 Murray, CalTrans, Solano County Sheriff Deputy Dale Matsuoka, Assistant to the Vallejo 22 City Manager Natalie Peterson, and Golden Bay Security Services. See Compl. (ECF 23 No. 1.)1 Plaintiffs are unhoused individuals in Vallejo, California who challenge their 24 upcoming removal from an encampment by Defendants. Pending before the Court is 25 Plaintiffs’ ex parte Motion for Temporary Restraining Order (“TRO”) and Preliminary 26 Injunction against Defendants. (ECF No. 3.) On October 4, 2024, the Court held a 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. 28 P. 72, and Local Rule 302(c)(21). 1 hearing by Zoom2 where all Plaintiffs appeared in pro per, and attorney Hampton A. 2 Jackson entered a special appearance on behalf of Defendants City of Vallejo, Vallejo 3 Police Department, Murray, and Peterson (“Vallejo Defendants”).3 Defendants CalTrans, 4 Deputy Matsuoka, and Golden Bay Security Services did not appear at the hearing, and 5 the record does not indicate that these defendants received notice of Plaintiffs’ motion or 6 of the hearing. 7 For the reasons set forth below, the Court recommends DENYING Plaintiffs’ 8 Motion for Temporary Restraining Order, and recommends DISMISSING Plaintiffs’ 9 Complaint with leave to amend. Plaintiffs’ motions to proceed in forma pauperis (ECF 10 Nos. 2, 18) are denied as moot. (ECF Nos. 2, 18.) 11 I. BACKGROUND 12 A. Factual Background 13 On August 26, 2024, the Department of Navy contacted the City of Vallejo and 14 informed the City of trespassers at Building 505 within the former Mare Island Naval 15 Shipyard in Vallejo, California. Natalie Peterson Decl. ¶ 9 & Exh. C (ECF No. 8-1 at 2, 16 20). In February 2024, the City of Vallejo entered into a license agreement with the Navy 17 to use the former Mare Island Naval Shipyard. Peterson Decl. ¶ 12 & Exh. D. The 18 license agreement requires the City to “protect, maintain, and keep the premises under 19 its control in good order.” Id.; see id. at Exh. C. 20 On August 27, 2024, Plaintiffs received in-person, verbal notice of eviction by the 21 City of Vallejo through Defendant Peterson to move by the end of the week from their 22 current encampment at 505 Azuar Street Drive, Vallejo, CA 94592 (the “Building 505 23

24 2 Though all parties who participated in the October 4, 2024 hearing appeared by Zoom, the Court held this hearing in Courtroom 25 of the Sacramento federal courthouse 25 to allow any party to appear in-person and to provide public access to the hearing. 26 Before the hearing, court staff received communications indicating that some plaintiffs may have difficulty appearing by Zoom. (ECF No. 9.) 27 3 It is unclear whether the Vallejo Defendants were properly served with the Complaint, summons, and Plaintiffs’ motion, and their appearance was therefore noted as a special 28 appearance. 1 encampment”). Compl. at 10, 12-13, 16. Plaintiffs allege the City of Vallejo has a ”history 2 of following up to the verbal notices within 48 hours en masse with tows” thereby 3 forcefully moving individuals out with little notice and opportunity to remove their 4 possessions and vehicles without an alternative location to move to. Id. at 12-13; see 5 also id. at 16. Plaintiffs also indicate that some of them are disabled and/or have medical 6 conditions that make moving difficult and have not been offered accommodations for 7 their disabilities such as more time to move. See id. at 10, 12, 14, 15, 18. The Complaint 8 also refers to multiple prior “sweeps” and “evictions” at other locations by the City of 9 Vallejo, the California Highway Patrol (“CHP”), and/or CalTrans, where Plaintiffs were 10 provided with varying amount of notice. See id. at 12-14, 16, 18,19. 11 On September 5, 2024, the Department of Navy filed a police report regarding 12 trespass by individuals and vehicles at Building 505. Peterson Decl. Exh. C. 13 On September 9, 2024, the Department of Navy sent the City of Vallejo a letter 14 regarding the trespassers and conditions at Building 505, including concerns that “the 15 trespassers are storing fuel and other combustible items and are at risk to Navy and City 16 property.” Peterson Decl. ¶ 11 & Exh. C. 17 On September 17, 2024, the City posted written notices that cleanup and removal 18 at Buildings 505, 505A, 505B, and surrounding lots would occur on September 25, 2024. 19 See Peterson Decl. ¶ 13 & Exh. E; Flor Magallanes (Administrative Analyst, Vallejo City 20 Manager’s Office) Decl. ¶¶ 5-6 & Exhs. A-B (ECF No. 8-2). Defendant Deputy Matsuoka 21 assisted Magallanes with posting the written notices. See Magallanes Decl. ¶ 5; Pls. 22 Mot. at 12. 23 On September 23, 2024, Americans with Disabilities Act (“ADA”) 24 Accommodations forms were delivered to the Vallejo City Manager’s Office by Plaintiff 25 Toepfer. See Toepfer Decl. at 1 (ECF No. 3 at 90-91); Peterson Decl. ¶ 14; Vallejo Defs. 26 Opp. at 2-3. Plaintiffs attached copies of their ADA request forms, which appear to be 27 / / / 28 / / / 1 from Plaintiffs O’Malley, Alford, James Nelson, and Pam Nelson. Pls. Mot., Exh. P (ECF 2 No. 3 at 155, 157-159).4 The copies of four of the ADA request forms attached to 3 Plaintiffs’ motion are not legible. See id. at 154, 157-159. The legible portion of Plaintiffs’ 4 ADA request forms is from Plaintiff O’Malley, who requests the following 5 accommodation: “I just need more time to move my belongings and trailer so I don’t lose 6 them.” Id. at 155. The Vallejo Defendants state that the accommodations requested 7 were up to a six (6) week extension to remove the Building 505 encampment and a 8 request for a place to go. Vallejo Defs. Opp. at 2-3.5 It is unclear whether the Vallejo 9 Defendants’ description of the requested accommodation is from Plaintiffs, from non- 10 parties, or both Plaintiffs and non-parties. See Vallejo Defs. Opp. at 2-3. 11 On September 24, 2024, Administrative Analyst Magallanes and Defendant 12 Deputy Matsuoka verbally informed the Building 505 encampment that “all eviction 13 processes scheduled for [September] 25th would be temporarily halted for 24 hours or 14 more until the city attorney could review the reasonable accommodation requests.” Pls. 15 Mot. at 12. 16 B. Procedural Background 17 Plaintiffs filed their Complaint on August 30, 2024. (ECF No. 1.) The Complaint 18 was filed using a form complaint, and attached unsigned and unsworn statements from 19 each of the seven plaintiffs. Id. at 10-16, 18-19. The Complaint also attached an 20 unsigned and unsworn statement from non-party Lisa Amarant.6 Id. at 17. The 21 Complaint states the following are at issue in this case: “4th, 5th, and 14th Amendments 22 of the U.S. Constitution and the A.D.A.” Compl. at 6. As relief, Plaintiffs request a 23

24 4 Plaintiffs also included forms from non-parties David Paul Thorpe and Daniel G. Running. Id. (ECF No. 157 at 156, 160). 25 5 The Vallejo Defendants did not attach copies of the ADA request forms, and this 26 description of the requested relief comes from their opposition brief. See Vallejo Defs. Opp. at 2-3. 27 6 The Complaint identified each of the seven plaintiffs and included signatures from every plaintiff. Compl. at 2, 7. Amarant is not identified as a plaintiff in the Complaint. 28 See Compl. 1 temporary restraining order to enjoin Defendants from “towing and impounding vehicles 2 who are operating under the City of Vallejo.” Id. at 10. Noting that California Highway 3 Patrol and the Vallejo Police Department previously gave them only one or two hours to 4 leave from prior locations, Plaintiff Jim Nelson requests “an extra 72 hours to move at 5 least.” Id. at 14. 6 On September 26, 2024, Plaintiffs filed their ex parte Motion for Temporary 7 Restraining Order and Preliminary Injunction. (ECF No. 3.) In their motion, Plaintiffs seek 8 to “stop the eviction” at 505 Azuar Avenue by Defendants; stop the City of Vallejo from 9 conducting “sweeps” across the city to remove encampments of unhoused individuals; 10 require the City of Vallejo “to adopt noticing and eviction policies that are consistent, 11 accessible and clear,” and require the City to follow these policies consistently; and 12 alternatively, to require the City to grant the reasonable accommodation requests made 13 under Title II of the ADA. Pls. Mot. at 17. Plaintiffs attached to their motion declarations 14 from each Plaintiff7 (ECF No. 3 at 83-87, 90-98) and declarations from non-parties Lisa 15 Amarant, Kevin Jones, Daniel Running, and David Thorpe (id. at 79-82, 88-89, 99-100). 16 On September 27, 2024, the Court issued a Minute Order setting a briefing 17 schedule and scheduling a hearing on October 4, 2024, ordering Plaintiffs to serve a 18 copy of this minute order on Defendants, and ordering Plaintiffs to file proofs of service. 19 (ECF No. 6.) Due to concerns regarding timely notice to Plaintiffs proceeding pro se and 20 the docket’s lack of documentation indicating service of the TRO motion on Defendants, 21 the Court provided courtesy notification of its September 27, 2024 Minute Order by email 22 to Plaintiffs using the email addresses Plaintiffs listed in their filings, and by email to 23 Defendant City of Vallejo. Id. 24 On October 1, 2024, the Vallejo Defendants filed an opposition. Vallejo Defs. 25 Opp’n (ECF No. 8). No other Defendants have appeared or filed an opposition to the 26

27 7 Plaintiffs’ declarations are substantially similar to the statements attached to the Complaint, with additional statements included in some of the declarations. Compare 28 Pls. Mot. (ECF No. 3 at 83-87, 90-98), with Compl. at 10-16, 18-19. 1 motion. A hearing on Plaintiffs’ motion was held on October 4, 2024. 2 II. LEGAL STANDARDS 3 Plaintiffs move ex parte for a temporary restraining order and a preliminary 4 injunction pursuant to Federal Rules of Civil Procedure 65 against all Defendants. The 5 standard for issuing a TRO is the same as the standard for issuing a preliminary 6 injunction, which requires the plaintiff to “establish that he is likely to succeed on the 7 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that 8 the balance of equities tips in his favor, and that an injunction is in the public interest.” 9 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Because the first factor “is 10 a threshold inquiry and is the most important factor,” a “court need not consider the other 11 factors” if a movant fails to show a likelihood of success on the merits. Baird v. Bonta, 81 12 F.4th 1036, 1040 (9th Cir. 2023) (internal quotation marks and citations omitted). 13 “A preliminary injunction is an extraordinary remedy never awarded as of right,” 14 and may only be awarded upon a clear showing that the plaintiff is entitled to relief. 15 Winter, 555 U.S. at 22, 24 (citation omitted). “Under Winter, plaintiffs must establish that 16 irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” 17 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 18 III. DISCUSSION 19 In their TRO motion, Plaintiffs seek (1) to enjoin Defendants from conducting 20 sweeps to remove unhoused persons and their property from the Building 505 21 encampment in Vallejo; (2) to stop the City of Vallejo from conducting “sweeps” across 22 the city to remove encampments of unhoused individuals; and (3) to require the City of 23 Vallejo “to adopt noticing and eviction policies that are consistent, accessible and clear,” 24 and require the City to follow these policies consistently. If the Court denies injunctive 25 relief, Plaintiffs alternatively request that the Court require the City to grant the 26 reasonable accommodation requests made under Title II of the ADA. Pls. Mot. at 17. 27 In their opposition, the Vallejo Defendants state they are willing to provide 28 Plaintiffs additional time to October 23, 2024 to remove their vehicles and encampment 1 at Building 505, which constitutes four (4) additional weeks from the original September 2 25, 2024 removal date. Vallejo Defs. Opp’n at 2-3, 5-6. The Vallejo Defendants contend 3 that anything beyond this timeframe would “fundamentally alter its program.” Id. The 4 Vallejo Defendants also argue Plaintiffs are unlikely to show a likelihood of success on 5 the merits of their ADA and Fourteenth Amendment claims, and that the motion should 6 therefore be denied. See id. at 4-7. At the hearing, the Vallejo Defendants also argued 7 that some of Plaintiffs’ allegations addressed actions taken by CalTrans in an area that is 8 not part of the City of Vallejo. 9 The Court recognizes the hardship Plaintiffs face, and the crisis confronting 10 unhoused individuals, communities, and governmental entities. On the current record 11 before the Court, however, Plaintiffs do not meet the legal standard for granting a 12 temporary restraining order. The Court therefore recommends denial of Plaintiffs’ motion 13 as procedurally deficient; because the Court lacks authority to grant injunctive relief for 14 individuals who are not parties to this lawsuit and on a new claim; and because Plaintiffs 15 are unlikely to succeed on the merits where the Complaint does not sufficiently plead 16 any claims for relief. The Court further recommends dismissal of the Complaint with 17 leave to amend. 18 A. Plaintiffs’ Motion is Procedurally Deficient 19 Federal Rule of Civil Procedure 65(b)(1) permits the court to issue a TRO without 20 notice to the adverse party only if (1) specific facts in the affidavit or underlying pleading 21 show that immediate and irreparable injury, loss, or damage will result before the 22 opposing party may be heard; and (2) the movant certifies in writing efforts made to give 23 notice and the reasons why notice should not be required. Fed. R. Civ. P. 65(b)(1). This 24 Court's Local Rules also set forth certain procedural mandates for a temporary 25 restraining order to issue, including that the movant provide the following documents: 26 (1) a complaint; (2) a motion for temporary restraining order; (3) a brief on the relevant 27 legal issues; (4) an affidavit to support the existence of irreparable harm; (5) an affidavit 28 detailing the notice or efforts undertaken or showing good cause why notice should not 1 be given; (6) a proposed temporary restraining order and provision for bond; (7) a 2 proposed order with blank for fixing time and date for a hearing; and (8) where a 3 temporary restraining order is requested ex parte, the proposed order should also notify 4 the affected parties of the right to apply to the Court for modification or dissolution on two 5 (2) days’ notice or such shorter notice as the Court may allow. E.D. Cal. Local Rule 6 231(c). 7 Plaintiffs’ motion is procedurally deficient because Plaintiffs do not provide 8 reasons why notice of their motion to Defendants CalTrans, Deputy Matsuoka, and 9 Golden Bay Security Services should not be required. See Fed. R. Civ. P. 65(b)(1)(B); 10 E.D. Cal. Local Rule 231(c)(5); Pls. Mot. Plaintiffs submitted a TRO checklist and Plaintiff 11 Toepfer’s declaration regarding Plaintiffs’ efforts to notify Defendants of their motion. See 12 ECF No. 3-1. Plaintiff Toepfer declares that he notified the City Attorney of Vallejo and 13 California Governor Gavin Newsom by email that Plaintiffs would be “filing an injunction 14 on 9/25/24.” (ECF No. 3-1 at 1, 3.) Even assuming Plaintiffs provided notice to the 15 Vallejo Defendants8 of their motion, Plaintiffs seek a TRO against all Defendants but did 16 not provide notice of their motion to Defendants CalTrans, Deputy Matsuoka, and 17 Golden Bay Security Services, or provide any reason why notice to these Defendants 18 should not be required. See Pls. Mot. There is no reference in Plaintiffs’ motion, Plaintiff 19 Toepfer’s declaration, or the docket regarding any such efforts. See id.; Docket. The 20 Court notes that the docket includes a return of service of the Summons and Complaint 21 for each Defendant.9 (ECF Nos. 11-17.) Service of the Summons and Complaint does 22 not, however, constitute notice of Plaintiffs’ TRO motion to Defendants. 23 Plaintiffs failed to comply with Rule 65(b)(1)(B) and Local Rule 231(c)(5) because 24 they did not make efforts to provide notice of their motion to Defendants CalTrans,

25 8 The Court notes that Vallejo Defendants do not contest Plaintiffs’ assertion that they 26 notified the City Attorney by email of their motion. See Vallejo Defs. Opp’n. 9 The Court further notes that service of the Summons and Complaint appears to be 27 defective for all Defendants except for Defendant Deputy Matsuoka because Plaintiff Toepfer served all other Defendants, and a party to the litigation may not serve 28 documents themselves. See Fed. R. Civ. P. 4(c)(2); ECF Nos. 11-13, 15-17. 1 Deputy Matsuoka, and Golden Bay Security Services, and Plaintiffs did not provide 2 reasons why notice on these defendants should not be required. See Pls. Mot. The 3 Complaint and motion also include allegations related to actions taken by CHP and 4 CalTrans. See Compl. at 12-14; Pls. Mot. at 11, 92, 97. Courts regularly deny TROs for 5 failing to comply with the stringent requirements of Rule 65(b)(1), including those sought 6 by pro se plaintiffs. See Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1131 7 (9th Cir. 2006) (“courts have recognized very few circumstances justifying the issuance 8 of an ex parte TRO”); Abdel-Malak v. Doe, 2020 WL 5775818, at *1 (C.D. Cal. Feb. 20, 9 2020) (denying TRO sought by pro se plaintiff for failure to satisfy Rule 65(b)’s “strict 10 requirements”); Seymour v. U.S. Dep't of Def., 2010 WL 3385994, at *1 (S.D. Cal. Aug. 11 26, 2010) (same); Roman v. Nw. Tr. Servs., Inc., 2010 WL 3489962, at *1 (W.D. Wash. 12 Aug. 31, 2010) (same). In addition, Plaintiffs’ failure to comply with the Local Rules’ 13 requirements for TROs is sufficient justification to deny the motion.10 See Nible v. 14 Macomber, 2024 WL 2133319, at *2 (E.D. Cal. May 13, 2024) (denying TRO sought by 15 pro se plaintiff as procedurally deficient); see, e.g., Tri-Valley CAREs v. U.S. Dep’t of 16 Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (“Denial of a motion as the result of a failure 17 to comply with local rules is well within a district court’s discretion.”). 18 The Court will therefore recommend denial of the TRO motion based on these 19 procedural deficiencies. The Court next addresses its authority to grant a TRO given the 20 new parties and the new claim Plaintiffs raise in their motion. 21 B. The Court Lacks Authority to Grant a TRO 22 The Court is unable to issue an order for or against individuals who are not parties 23 to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 24 100, 112 (1969); see also Zepeda v. U.S. Immigration Serv., 753 F.2d 719, 727 (9th Cir. 25 1983) (explaining that the scope of an injunction is limited to the parties in the action). 26 Plaintiffs’ motion identifies five new plaintiffs who are not named in the original 27 10 In addition, Plaintiffs did not submit the proposed orders required by Local Rule 28 231(c)(6)-(8). 1 Complaint. Compare Compl. at 2, 9, with Pls. Mot. at 3 (“Attachment 1: Plaintiffs”), 6 2 (same). Plaintiffs have improperly attempted to name Kevin Jones, Daniel Runner, Lisa 3 Amarant, David Paul Thorpe, and the Vallejo Homeless Union as new plaintiffs in their 4 motion. See Pls. Mot. at 3, 6. In addition, it is unclear whether Plaintiffs’ reference to 5 Governor Newsom is also a request to grant injunctive relief against Governor Newsom 6 or the State of California, or to add either as a new defendant. See id. at 10, 13 & ECF 7 No. 3-1 at 1. This is unclear in part because Plaintiffs’ motion does not identify any 8 specific defendants, and refers to the City, CalTrans, CHP, Peterson, Deputy Matsuoka, 9 the Vallejo Police Department, and Governor Newsom. See Pls. Mot. at 4 (referring to 10 “Attached 2” for the list of defendants, but re-attaching list of plaintiffs), 7, 10-15. 11 Plaintiffs have also included in their motion a new state law claim pursuant to the 12 “Tom Banes Civil Rights Act,” California Civil Code § 52.1. Compare Compl. at 6, with 13 Pls. Mot. at 8 and Pls. TRO Checklist (ECF No. 3-1 at 2). “When a plaintiff seeks 14 injunctive relief based on claims not pled in the complaint, the court does not have the 15 authority to issue an injunction.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 16 810 F.3d 631, 633 (9th Cir. 2015). Here, Plaintiffs are not entitled to injunctive relief 17 pursuant to a new claim raised in their motion that was not pled in the Complaint. 18 Therefore, the Court also recommends denial of Plaintiffs’ motion because the 19 Court lacks authority to issue an order for individuals who are not parties to a suit 20 pending before it and lacks authority to issue an injunction for a new claim that was not 21 pled in the Complaint. See Zenith Radio Corp., 395 U.S. at 112; Zepeda, 753 F.2d at 22 727; Pac. Radiation Oncology, 810 F.3d at 633, 636.

23 C. Plaintiffs Have Not Clearly Shown a Likelihood of Success on the 24 Merits In an abundance of caution, the Court also examines the first and most important 25 Winter element: likelihood of success on the merits. Plaintiffs have not demonstrated 26 that they are likely to succeed on the merits of their claims because the Complaint fails 27 to sufficiently plead any claims. Because the first Winter factor of likelihood of success is 28 1 a threshold inquiry and the most important factor, a “court need not consider the other 2 factors” if a movant fails to show a likelihood of success on the merits. Baird, 81 F.4th at 3 1040; see Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). Although pro se 4 pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), 5 they are still required to conform to the Federal Rules of Civil Procedure. See Ghazali v. 6 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995). 7 Even when construing the pro se Complaint liberally, it’s unclear what claims are 8 being brought in the Complaint. See Compl. Though the Complaint states that the “4th, 9 5th, and 14th Amendments of the U.S. Constitution and the A.D.A.” are at issue (see 10 Compl. at 6), the Complaint does not identify what claims are being brought based on 11 these Constitutional provisions and the ADA. See Compl. Many different types of claims 12 could be brought based on the ADA and the Fourth, Fifth, and Fourteenth Amendments. 13 In addition, the Complaint is brought against Defendants City of Vallejo, the Vallejo 14 Police Department, City Manager Murray, CalTrans, Deputy Matsuoka, Assistant to the 15 City Manager Peterson, and Golden Bay Security Services (see Compl. at 3-5), but the 16 Complaint “fail[s] to specify which defendants are responsible for which alleged claims.” 17 Davidson v. Vertus Properties, Inc., 2015 WL 7188260, at *3 (E.D. Cal. June 18, 2015), 18 report and recommendation adopted, 2015 WL 7188260 (E.D. Cal. Nov. 16, 2015). As a 19 result, it’s unclear what claims are being brought against which defendants. See 20 Davidson, 2015 WL 7188260 at *3. In addition, though the Complaint names Vallejo City 21 Manager Murray and Golden Bay Security Services as Defendants (see Compl. at 4-5), 22 there are no allegations about either defendant in the Complaint. See Compl. 23 Because it is unclear what claims are being brought against which Defendants, 24 Plaintiffs have failed to establish the likelihood of success on the merits.11 See Feathers 25 v. U.S. SEC, 2022 WL 17330840, at *2-3 (N.D. Cal. Nov. 29, 2022) (dismissing 26

27 11 Because the Court finds that the Complaint fails to sufficiently plead claims for relief, the Court declines to address the Vallejo Defendants’ arguments in their opposition 28 regarding Plaintiffs’ ADA and Fourteenth Amendment claims. 1 complaint under Rule 8 with leave to amend, and denying TRO based on no available 2 plausible claims); In re Trotochau v. Bennet, 2018 WL 6262843, at *3 (C.D. Cal. Feb. 13, 3 2018) (denying TRO where pro se plaintiff failed to state a claim and failed to provide 4 notice to defendants under Rule 65(b)); Davidson, 2015 WL 7188260 at *3; Hanson v. 5 Hanson, 2014 WL 587867, at *3 (S.D. Cal. Feb. 14, 2014) (denying TRO because even 6 when construing pro se complaint liberally, allegations were insufficient to show likely 7 success on the merits). The Court need not address the other Winter factors based on 8 Plaintiffs’ failure to show a likelihood of success on the merits. See Apartment Ass'n of 9 Los Angeles Cnty., Inc. v. City of Los Angeles, 10 F.4th 905, 917 (9th Cir. 2021); see 10 also Baird, 81 F.4th at 1040. The Court therefore also recommends DENYING Plaintiffs’ 11 motion for failing to establish the likelihood of success on the merits. 12 D. Plaintiffs’ Complaint Should Be Dismissed with Leave to Amend 13 A district court possess inherent authority to dismiss sua sponte a pleading that 14 fails to comply with Rule 8. See Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 15 1131 (9th Cir. 2008); see also Robert v. First Haw. Bank, 172 F.3d 58, *1 (9th Cir. 1999). 16 A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 18 when the plaintiff pleads factual content that allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 20 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). Even under the liberal approach 21 to pro se pleadings, the court cannot “supply essential elements of the claim that were 22 not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 23 1982). A pro se litigant is entitled to notice of the deficiencies in the complaint and an 24 opportunity to amend, unless the complaint's deficiencies could not be cured by 25 amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 26 Here, as discussed above, the Complaint fails to specify what claims are being 27 brought against which Defendants, and therefore is insufficient to state a claim under 28 Rule 8 and to meet the standards set by the Supreme Court in Twombly and Iqbal. See 1 Feathers, 2022 WL 17330840 at *2-3; Davidson, 2015 WL 7188260 at *3; Hanson, 2014 2 WL 587867 at *3. The Court recommends dismissal of the Complaint with leave to 3 amend. The attachment to Plaintiffs’ motion titled “Legal Basis for Claim,” suggests that 4 Plaintiffs may be able to amend their Complaint to identify actual claims, rather than just 5 listing Constitutional provisions and a statute at issue. See Pls. Mot. at 20-23. The Court 6 notes that Plaintiffs’ motion does not, however, identify any specific defendants, and 7 refers to the City, CalTrans, CHP, Peterson, Deputy Matsuoka, the Vallejo Police 8 Department, and Governor Newsom. See Pls. Mot. at 4 (referring to “Attached 2” for the 9 list of defendants, but re-attaching list of plaintiffs), 7, 10-15. 10 If the Complaint is dismissed and Plaintiffs elect to file an amended complaint, it 11 should be titled “First Amended Complaint” with reference to the appropriate case 12 number. An amended complaint must be complete in itself without reference to any prior 13 pleading. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); E.D. Cal. Local Rule 220. 14 Plaintiffs are warned that a formulaic recitation of the elements of a cause of action does 15 not suffice to state a claim. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555-57; 16 Fed. R. Civ. P. 8. To state a claim on which relief may be granted, a plaintiff must allege 17 enough facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 18 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows 19 the court to draw the reasonable inference that the defendant is liable for the misconduct 20 alleged.” Iqbal, 556 U.S. at 678. Any First Amended Complaint should clearly identify all 21 parties, the claims being brought, and against which defendants each claim is being 22 brought. In addition, if the party is unrepresented, Rule 11(a) requires that “[e]very 23 pleading, written motion, and other paper must be signed” by a party personally if the 24 party is unrepresented. Fed. R. Civ. P. 11(a). In addition, the “paper must state the 25 signer's address, e-mail address, and telephone number.” 26 IV. PLAINTIFFS’ MOTIONS TO PROCEED IN FORMA PAUPERIS 27 Plaintiffs have also filed motions to proceed in forma pauperis. (ECF Nos. 2, 18.) 28 However, on September 26, 2024, Plaintiffs paid the full filing fee with the Court. 1 | Accordingly, Plaintiffs’ motions to proceed in forma pauperis are DENIED as moot. Vz CONCLUSION 3 In conclusion, the Court denies Plaintiffs’ motions to proceed in forma pauperis as 4 | moot; and recommends denial of Plaintiffs’ motion for a TRO and preliminary injunction 5 || as procedurally deficient; for improperly seeking injunctive relief for individuals who are 6 | not parties to this lawsuit and for a new claim; and because Plaintiffs are unlikely to 7 || succeed on the merits where the Complaint does not sufficiently plead any claims for 8 | relief. The Court further recommends dismissal of the Complaint with leave to amend. 9 A. ORDER 10 It is HEREBY ORDERED that Plaintiffs’ motions to proceed in forma pauperis 11 | (ECF Nos. 2, 18) are DENIED as moot. 12 B. RECOMMENDATIONS 13 It is FURTHER HEREBY RECOMMENDED that: 14 1. Plaintiffs’ Motion for Temporary Restraining Order and Preliminary 15 | Injunction (ECF No. 3) be DENIED; 16 2. Plaintiffs’ Complaint (ECF No. 1) be dismissed without prejudice; 17 3. Plaintiffs be given thirty (30) days to file an amended complaint. 18 These findings and recommendations are submitted to the United States District 19 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 20 | 14 days after being served with these findings and recommendations, any party may file 21 | written objections with the Court and serve a copy on all parties. This document should 22 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 23 | reply to the objections shall be served on all parties and filed with the Court within 14 24 | days after service of the objections. Failure to file objections within the specified time 25 | may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 26 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 27 pate Ootober T, 2024 OC iy $ \U 28 CHI SOO KIM 14 UNITED STATES MAGISTRATE JUDGE