stating the analysis for temporary restraining orders and preliminary injunctions is 27 “substantially identical”
How later courts described this case
- stating the analysis for temporary restraining orders and preliminary injunctions is 27 “substantially identical”
- dismissing claims under 47 U.S.C. § 223 and 18 U.S.C. § 2261A because they are 15 criminal statutes that do not confer a private right of action
- affirming dismissal of claims under 18 U.S.C. §§ 241 and 242 because they are “criminal 9 statutes that do not give rise to civil liability”
- “Denial of a motion as the result of a failure to comply with local 24 rules is well within a district court’s discretion.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 MARIE VUE, No. 2:25-cv-0200-DC-CKD (PS)
12 Plaintiff,
13 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
14 LEE LAY MOUA, et al.
15 Defendants.
16
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18 On January 15, 2025, pro se plaintiff Maria Vue filed a civil complaint and a motion for a
19 temporary restraining order. (ECF No. 1.) The presiding district judge referred the motion to the
20 undersigned for issuance of findings and recommendations. (ECF No. 3.)
21 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No.
22 2.) Plaintiff’s application in support of the in forma pauperis request makes the required financial
23 showing. Accordingly, the Court grants Plaintiff’s in forma pauperis request.
24 For the reasons set forth below, it is recommended that plaintiff’s motion for temporary
25 restraining order be denied. In addition, as the complaint fails to state a claim, it should be
26 dismissed without leave to amend.
27 ////
28 ////
1 I. Screening Requirement
2 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis
3 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to state a
4 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is
5 immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27
6 (9th Cir. 2000). A claim is legally frivolous when it lacks an arguable basis either in law or in
7 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard,
8 the court accepts as true the factual allegations contained in the complaint, unless they are clearly
9 baseless or fanciful, and construes those allegations in the light most favorable to the plaintiff. See
10 id. at 327; Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
11 2010), cert. denied, 564 U.S. 1037 (2011).
12 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines
13 v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory
14 allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council
15 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of
16 action does not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57
17 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
18 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to
19 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
20 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
21 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A pro se
22 litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend
23 unless the complaint’s deficiencies could not be cured by amendment. See Noll v. Carlson, 809
24 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Lopez, 203
25 F.3d 1122.
26 II. The Complaint’s Allegations
27 Plaintiff filed a complaint and a “request for injunction” on January 15, 2025, against
28 defendants Lee Lay Moua and Mai Moua Vang. (ECF No. 1.) Plaintiff alleges violations of
1 several federal criminal statutes: 18 U.S.C. §§ 241, 875, 2261A, and 47 U.S.C. §223.1 (Id. at 3.)
2 Plaintiff claims defendant Moua owns a public social conference line and defendant Vang is the
3 moderator of the line. (Id. at 4.) Plaintiff claims that “harassment, threats, and intimidation”
4 against her occurred beginning on November 17, 2024, and has been ongoing. (Id. at 5.) Plaintiff
5 alleges that one of the guests on the conference line encouraged another person to “blow
6 [plaintiff’s] guts out.” (Id. at 7.) Plaintiff states that she has suffered irreparable emotional harm,
7 threats to her physical safety, and loss of quality of life that monetary damages cannot
8 compensate. (Id. at 6.) Plaintiff seeks a restraining order to protect her and her family from
9 potential violence and to shut down the social conference line. (Id. at 7.)
10 III. Plaintiff’s Complaint Should Be Dismissed
11 A. Lack of Subject Matter Jurisdiction
12 Federal courts are courts of limited jurisdiction and may hear only those cases authorized
13 by federal law. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Jurisdiction
14 is a threshold inquiry, and “[f]ederal courts are presumed to lack jurisdiction, ‘unless the contrary
15 appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993)
16 (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)); see Morongo Band
17 of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).
18 Without jurisdiction, the district court cannot decide the merits of a case or order any relief and
19 must dismiss the case. See Morongo, 858 F.2d at 1380. A federal court’s jurisdiction may be
20 established in one of two ways: actions arising under federal law or those between citizens of
21 different states in which the alleged damages exceed $75,000. 28 U.S.C. §§ 1331, 1332. “Subject-
22 matter jurisdiction can never be waived or forfeited,” and “courts are obligated to consider sua
23 sponte” subject matter jurisdiction even when not raised by the parties. Gonzalez v. Thaler, 565
24 U.S. 134, 141 (2012).
25 Federal courts lack subject matter jurisdiction to consider claims that are “so insubstantial,
26 implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit
27
1 Plaintiff’s complaint lists 47 U.S.C. § 233 “Obscene or harassing calls,” but the proper statutory
28 citation is 47 U.S.C. § 223.
1 as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Environment, 523 U.S.
2 83, 89 (1998) (citation omitted). A court may dismiss a claim as frivolous where it is based on an
3 indisputably meritless legal theory. Neitzke, 490 U.S. at 327.
4 In this case, the complaint invokes federal question and diversity jurisdiction. (See ECF
5 No. 1 at 3.) The basis for plaintiff’s claims is four criminal statutes: 18 U.S.C. §§ 241, 875,
6 2261A, and 47 U.S.C. §223. (ECF No. 1 at 3.) However, there is no private right of action for
7 violation of a criminal statute. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir.
8 2006) (affirming dismissal of claims under 18 U.S.C. §§ 241 and 242 because they are “criminal
9 statutes that do not give rise to civil liability”); Keyter v. McCain, 207 F. App’x 801, 802 (9th Cir.
10 2006)2 (unpublished) (“The district court properly dismissed [plaintiff’s] claims based on federal
11 criminal statutes because statutes that provide for punishment by fine or imprisonment do not
12 create privately enforceable rights or give rise to civil liability.”); see also Cain v. Christine
13 Valmy Int’l Sch. of Esthetics, Skin Care, & Makeup, 216 F. Supp. 3d 328, 334-35 (S.D.N.Y.
14 2016) (dismissing claims under 47 U.S.C. § 223 and 18 U.S.C. § 2261A because they are
15 criminal statutes that do not confer a private right of action); Allen v. Citrus Heights Police Dep’t,
16 2021 WL 4942842, at *3 (E.D. Cal. Oct. 22, 2021) (dismissing claims with prejudice under
17 criminal statutes for lack of subject matter jurisdiction). Plaintiff is unable to assert a claim
18 against defendants under any of these four statutes. Additionally, while plaintiff alleges that she is
19 diverse from both defendants (ECF No. 1 at 3-4), plaintiff has made no claim for monetary relief.
20 Accordingly, plaintiff’s complaint should be dismissed for lack of subject matter
21 jurisdiction. See Allen, 2021 WL 4942842, at *3. Because amendment would not cure the
22 deficiencies in the complaint, plaintiff’s complaint should be dismissed without leave to amend.
23 Noll, 809 F.2d at 1448; Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, Inc., 818 F.2d
24 1466, 1472 (9th Cir. 1987) (“Valid reasons for denying leave to amend include undue delay, bad
25 faith, prejudice, and futility.”).
26 ////
27
28 2 This unpublished decision is being cited for persuasive value only. See 9th Cir. R. 36-3.
1 B. Failure to Comply with Federal Rule of Civil Procedure 8
2 The complaint also does not contain a short and plain statement of a claim as required by
3 Federal Rule of Civil Procedure 8. In order to give fair notice of the claims and the grounds on
4 which they rest, a plaintiff must allege with at least some degree of particularity overt acts by
5 specific defendants which support the claims. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir.
6 1996).
7 Here, plaintiff’s complaint fails to state a claim because the criminal statutes under which
8 she brings her claims do not provide for a private right of action. Additionally, even if plaintiff
9 could bring her claim, she has not alleged sufficient facts in her complaint to allow the court to
10 determine that defendants are liable for the alleged misconduct. See Iqbal, 566 U.S. at 663.
11 Plaintiff alleges that she was threatened and that this is ongoing, however other than one specific
12 threat, plaintiff has not sufficiently described the alleged threats or behavior she seeks to prevent.
13 She also states that the threat came from one of defendant’s guests on the conference line, whom
14 plaintiff does not name, not one of the defendants. (ECF No. 1 at 7.)
15 IV. Motion for Temporary Restraining Order
16 Plaintiff filed a motion for temporary restraining order concurrently with her complaint.
17 (ECF No. 1.) The purpose of a temporary restraining order under Rule 65(b) of the Federal Rules
18 of Civil Procedure is to preserve the status quo and to prevent irreparable harm “so long as is
19 necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415
20 U.S. 423, 439 (1974). In determining whether to issue a temporary restraining order, a court relies
21 on the factors that guide the evaluation of a request for preliminary injunctive relief: whether the
22 moving party is (1) “likely to succeed on the merits,” (2) “likely to suffer irreparable harm in the
23 absence of preliminary relief,” (3) “the balance of equities tips in [its] favor,” and (4) “an
24 injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
25 (2008); see also Stuhlbarg Int’l. Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th
26 Cir. 2001) (stating the analysis for temporary restraining orders and preliminary injunctions is
27 “substantially identical”).
28 Courts within this circuit may also consider a request for a temporary restraining order
1 using a “sliding scale” test in which “a stronger showing of one element may offset a weaker
2 showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
3 2011). “[W]hen plaintiffs establish that the balance of hardships tips sharply in their favor, there
4 is a likelihood of irreparable injury, and the injunction is in the public interest, they need only
5 show ‘serious questions’ on the merits.” Where Do We Go Berkeley v. California Dep’t of
6 Transp., 32 F.4th 852, 859 (9th Cir. 2022) (citing Alliance for the Wild Rockies, 632 F.3d at
7 1135).
8 However, likelihood of success on the merits is the most important Winter factor, and it is
9 relevant to the court’s evaluation of the other factors. See Baird v. Bonta, 81 F.4th 1036, 1044
10 (9th Cir. 2023). Without showing a likelihood of success on the merits, plaintiff also does not
11 establish that the balance of equities tips in his favor, or that an injunction is in the public interest.
12 See id.; Winter, 555 U.S. at 20-21.
13 The Eastern District of California’s local rules impose specific requirements on those who
14 request a temporary restraining order. See Local Rule 231. Among other things, these rules
15 require “actual notice to the affected party and/or counsel” except in “the most extraordinary of
16 circumstances.” Local Rule 231(a). “Appropriate notice would inform the affected party and/or
17 counsel of the intention to seek a temporary restraining order, the date and time for hearing to be
18 requested . . . , and the nature of the relief to be requested.” Id.
19 A court may issue a temporary restraining order “without written or oral notice to the
20 adverse party” only if
21 (A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to
22 the movant before the adverse party can be heard in opposition; and
23 (B) the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
24
25 Fed. R. Civ. P. 65(b)(1).
26 When deciding whether to issue a temporary restraining order, the court may rely on
27 declarations, affidavits, and exhibits, among other things. See Johnson v. Couturier, 572 F.3d
28 1067, 1083 (9th Cir. 2009). This evidence need not conform to the standards that apply at
1 summary judgment or trial. Id.; Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.
2 1984).
3 A. Plaintiff’s Motion Is Procedurally Deficient
4 As a preliminary matter, plaintiff has not satisfied the requirements of Federal Rule of
5 Civil Procedure 65 or Local Rule 231 governing applications for temporary restraining orders.
6 First, plaintiff has not filed a brief on all relevant legal issues presented by the motion. Second,
7 plaintiff has not filed a proposed order. Third, plaintiff has not filed an “affidavit detailing notice,
8 or efforts to effect notice to the affected parties or counsel or showing good cause why notice
9 should not be given[.]”3 Local Rule 231(c)(5). While plaintiff responded in the TRO checklist
10 that there was notice to the affected party (ECF No. 1-2 at 1), plaintiff has not provided an
11 affidavit detailing this notice or describing the efforts plaintiff took to effect notice. The motion
12 for a temporary restraining order is therefore procedurally defective. See Fed. R. Civ. P. 65(b)(1);
13 Local Rule 231.
14 Courts regularly deny TROs for failing to comply with the stringent requirements of Rule
15 65(b)(1), including those sought by pro se plaintiffs. See Reno Air Racing Ass’n, Inc. v. McCord,
16 452 F.3d 1126, 1131 (9th Cir. 2006) (“courts have recognized very few circumstances justifying
17 the issuance of an ex parte [temporary restraining order]”); Abdel-Malak v. Doe, 2020 WL
18 5775818, at *1 (C.D. Cal. Feb. 20, 2020) (denying TRO sought by pro se plaintiff for failure to
19 satisfy Rule 65(b)’s “strict requirements”). In addition, plaintiff’s failure to comply with the Local
20 Rules’ requirements for TROs is sufficient justification to deny the motion. See Nible v.
21 Macomber, 2024 WL 2133319, at *2 (E.D. Cal. May 13, 2024) (denying TRO sought by pro se
22 plaintiff as procedurally deficient); see, e.g., Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d
23 1113, 1131 (9th Cir. 2012) (“Denial of a motion as the result of a failure to comply with local
24 rules is well within a district court’s discretion.”).
25 Therefore, the Court will recommend denial of the temporary restraining order motion
26
27 3 The court does not assume all affected parties or counsel received actual notice of plaintiff’s
motion for temporary restraining order through CM/ECF Notice of Electronic Filing because no
28 named defendants have appeared in this matter.
1 based on these procedural deficiencies.
2 B. Plaintiff Has Not Clearly Shown a Likelihood of Success of the Merits
3 The Court also examines the first and most important Winter factor: likelihood of success
4 on the merits. Because the first Winter factor of likelihood of success is a threshold inquiry and
5 the most important factor, a “court need not consider the other factors” if a movant fails to show a
6 likelihood of success on the merits. Baird, 81 F.4th at 1040 (citation omitted); see Garcia v.
7 Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). Although pro se pleadings are liberally
8 construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), they are still required to conform
9 to the Federal Rules of Civil Procedure. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995).
10 Plaintiff has not demonstrated likelihood of success on the merits. As stated above, the
11 basis for plaintiff’s claims is four criminal statutes, however there is no private right of action for
12 violation of a criminal statute. See Allen, 464 F.3d at 1048; supra p. 4. Accordingly, plaintiff
13 cannot bring a claim under any of these four statutes, and plaintiff has failed to establish the
14 likelihood of success on the merits. See Feathers v. U.S. SEC, 2022 WL 17330840, at *2-3 (N.D.
15 Cal. Nov. 29, 2022) (dismissing complaint under Rule 8 with leave to amend, and denying TRO
16 based on no available plausible claims); Hanson v. Hanson, 2014 WL 587867, at *3 (S.D. Cal.
17 Feb. 14, 2014) (denying TRO because even when construing pro se complaint liberally,
18 allegations were insufficient to show likely success on the merits). The Court need not address the
19 other Winter factors based on plaintiff’s failure to show a likelihood of success on the merits. See
20 Baird, 81 F.4th at 1040. The Court therefore also recommends denying plaintiff’s motion for
21 failing to establish the likelihood of success on the merits.
22 V. Conclusion and Recommendation
23 For the reasons set forth above, the Court grants plaintiff’s motion to proceed in forma
24 pauperis and recommends denial of plaintiff’s motion for temporary restraining order. The Court
25 further recommends dismissal of the complaint without leave to amend.
26 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
27 pauperis (ECF No. 2) is GRANTED.
28 /////
1 IT IS FUTHER HEREBY RECOMMENDED that:
2 1. Plaintiffs motion for temporary restraining order (ECF No. 1) be DENIED; and
3 2. Plaintiff's complaint (ECF No. 1) be dismissed with prejudice.
4 These findings and recommendations are submitted to the United States District Judge
5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
6 || days after being served with these findings and recommendations, any party may file written
7 || objections with the court and serve a copy on all parties. Such a document should be captioned
8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
9 || shall be served on all parties and filed with the court within seven (7) days after service of the
10 || objections. Failure to file objections within the specified time may waive the right to appeal the
11 | District court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. □□□□□ 951
12 | F.2d 1153, 1156-57 (9th Cir. 1991).
13 | Dated: January 16, 2025 / ae □□ / a Ly a
4 CAROLYN K DELANEY
15 UNITED STATES MAGISTRATE JUDGE
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