Opinion
No. CV-12-00489-TUC-CKJ
06-25-2013
Barbara E. Sherrill, Plaintiff, v. Eric H. Holder, Jr., Attorney General Department of Justice (EOUSA) Agency, Defendant.
ORDER
On June 19, 2013, Plaintiff filed a pro se Ex Parte Request for Temporary Restraining Order. (Doc. 24). Additionally, Plaintiff filed a Response to Defendants Answer. (Doc. 23).
Response to Answer
On September 28, 2012, Plaintiff filed a pro se First Amended Complaint. (Doc. 5). Defendants filed their Answer on May 31, 2013. (Doc. 22). Then, on June 19, 2013, Plaintiff filed a pro se Response to Defendant's Answer. (Doc. 23). Pursuant to Federal Rule of Civil Procedure 7(a)(7), a reply to an answer is only permitted if the court orders one. Fed.R.Civ.P. 7(a)(7).
This Court did not grant Plaintiff leave to file a reply to Defendant's Answer. Further, the Court does not find any basis to permit Plaintiff to file a reply to the Defendant's Answer in this case. As such, Plaintiff's Response to Defendant's Answer is stricken from the record.
Motion for Temporary Restraining Order
Whether to grant or deny a motion for a temporary restraining order is within the Court's discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir. 1979). "The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction." Whitman v. Hawaiian Tug & Barge Corporation/Young Bros., Ltd. Salaried Pension Plan, 27 F. Supp. 2d 1225, 1228 (D. Haw. 1998); See New Motor Vehicle Bd. v. Orrin W. Fox. Co., 434 U.S. 1345, 1347 n. 2, 98 S.Ct. 359, 361, 54 L.Ed.2d 439 (1977); Los Angeles Unified Sch. Dist. v. U.S. Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1982). "The three fundamental characteristics of an injunction are that it is (1) directed to a party; (2) enforceable by contempt; and (3) designed to accord or protect some or all of the substantive relief sought by the complaint." In re Lorillard Tobacco Co., 370 F.3d 983, 986 (9th Cir. 2004) (internal quotations omitted).
In her filing, Plaintiff requests a temporary restraining order to restrain the Defendant from any activities or actions that may cause the Plaintiff any indirect or direct harm in any possible way or manner. She alleges, without explanation, that since she served her Complaint on Defendants, there has been "an escalation of harassing activity." She further alleges that she has been harmed since 2009 because the Department of Health and Human Services stopped pursuing her complaints regarding her health care.
In her First Amended Complaint, (Doc. 5) Plaintiff alleges employment discrimination against Defendants Eric H. Holder, Jr., Attorney General and Department of Justice (EOUSA) Agency. Specifically, Plaintiff alleges that she was discriminated against on the basis of her age when she was denied employment with the United States Attorneys' Office, Phoenix Division in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621.
The only connection Plaintiff makes between the allegations in her Request and the Defendants in the case at bar, is that she believes, with no factual support, that the Defendants have done something improper and stopped the Department of Health and Human Services from pursuing her complaints.
Plaintiff's request does not seek to accord or protect any of the substantive relief sought by the complaint. See Gon v. First State Ins. Co., 871 F.2d 863, 865 (9th Cir. 1989). Moreover, Plaintiff has not shown a likelihood of success on the merits of her case or irreparable injury. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374, 172 L.Ed.2d 249 (2008).
Accordingly, IT IS HEREBY ORDERED:
1. The Clerk of Court is directed to Strike Plaintiff's Response to Defendant's Answer (Doc. 23) from the record.
2. Plaintiff's Ex-Parte Request for Temporary Restraining Order (Doc. 24) is DENIED.
Dated this 25th day of June, 2013.
/s/_________
Cindy K. Jorgenson
United States District Judge