Robertson v. Millett

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Michael Allen Robertson, No. CV-22-00009-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Lisa Millett, et al., 13 Defendants. [15] 16 Before the Court is Plaintiff Michael Allen Robertson’s (“Plaintiff”) Motion for 17 Protective Order (Doc. 19). For the following reasons, the motion is denied. 18 BACKGROUND 19 In January 2022, Plaintiff filed this action alleging claims under the Americans with 20 Disabilities Act (“ADA”) and 42 U.S.C. § 1983 against the State of Arizona, the Arizona 21 Department of Child Safety (“DCS”), and various state employees. The action stems from 22 the proceedings associated with Plaintiff’s loss of custody of his minor children, which 23 began in April 2018. Plaintiff alleges that over the course of DCS’s investigation, its agents 24 fraudulently misrepresented facts, made knowingly false reports, and suppressed evidence. 25 He claims that DCS’s actions forced him to voluntarily sever his parental rights in August 26 2020. 27 Because Plaintiff proceeds in forma pauperis, his Complaint remains in the 28 screening stage, and he has not yet served Defendants with the Complaint or any motions 1 in this action. Nonetheless, Plaintiff filed the instant Motion for Protective Order on 2 December 20, 2022. In the motion, he alleges that on December 14, 2022, he was arrested 3 for sexual offenses “based entirely on a smear campaign orchestrated by DCS.” (Doc. 19 4 at 3.) He further alleges that two days after this arrest, on December 16, 2022, a Maricopa 5 County Attorney dropped all charges. (Id.) As a result, he requests that this Court enter 6 an injunction preventing DCS and several individuals from harassing Plaintiff and further 7 directing the State of Arizona to expunge all references to the dropped charges from his 8 criminal record. (Doc. 19 at 4.) 9 DISCUSSION 10 I. Legal Standard 11 A Plaintiff seeking a preliminary injunction must demonstrate the following factors: 12 “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm 13 in the absence of preliminary relief, [3] that the balance of the equities tips in his favor, and 14 [4] that an injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, [15] 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Winter v. Natural Res. Def. Council, 555 16 U.S. 7 (2008)). The Ninth Circuit applies a “sliding scale” or “serious questions” approach 17 to the Winter factors. Thus, “serious questions going to the merits” and the “balance of 18 hardships that tips sharply towards the plaintiff can support issuance of a preliminary 19 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury 20 and that the injunction is in the public interest.” Alliance for the Wild Rockies, 632 F.3d at 21 1135. Additionally, under Federal Rule of Civil Procedure 65, the Court may not issue 22 preliminary injunctive relief without notice to the adverse party. Fed. R. Civ. P. 65(a)(1). 23 II. Analysis 24 A. Notice 25 Under Federal Rule of Civil Procedure 65, this Court is precluded from granting 26 Plaintiff’s request for injunctive relief without notice to the opposing party. To the extent 27 the Court could construe this request as a request for a temporary restraining order without 28 notice, Plaintiff does not provide “specific facts in an affidavit or a verified complaint 1 clearly show[ing] that immediate or irreparable injury, loss, or damage will result to [him] 2 before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). Since 3 such a showing is required, the Court cannot issue the requested relief at this juncture. 4 B. Winter Factors 5 Additionally, Plaintiff does not make a showing that the Winter factors tip in his 6 favor. In light of the policy that “we continue to construe pro se filings liberally,” the Court 7 reads Plaintiff’s motion as a motion for a preliminary injunction. Hebbe v. Pliler, 627 F.3d 8 338, 342 (9th Cir. 2010). To the extent Plaintiff seeks a protective order for his safety 9 based on state law, this Court is not the proper forum to provide such relief. Thus, because 10 the Court construes the request as one for preliminary injunctive relief, it analyzes the 11 Winter factors. 12 The Court cannot say the likelihood of success factor tips in favor of Plaintiff at this 13 stage. “Likelihood of success on the merits is the most important factor; if a movant fails 14 to meet this threshold inquiry, we need not consider the other factors.” California v. Azar, [15] 911 F.3d 558, 575 (9th Cir. 2018) (internal quotations omitted). Plaintiff appears to base 16 his motion on the claim that DCS and other state agents maliciously prosecuted him when 17 he was arrested in December 2022. “To establish malicious prosecution under Arizona 18 law, Plaintiff must ‘prove damage by a criminal prosecution, which terminated in his favor, 19 with defendant as prosecutor or complaining witness acting without probable cause and 20 with malice.’” West v. City of Mesa, 128 F. Supp. 3d 1233, 1240 (D. Ariz. 2015) (quoting 21 Bearup v. Bearup, 596 P.2d 35, 36 (Ariz. Ct. App. 1979)). To support his argument, 22 Plaintiff alleges that all former statements by witnesses alleging he committed sexual 23 assault have been impeached, and Defendants did not state that they acquired new forensic 24 evidence. While these claims may be probative in a malicious prosecution claim, without 25 more, they cannot establish the elements of the claim. Without further evidence about the 26 prior statements or arrest at issue, the Court cannot determine Plaintiff’s likelihood of 27 success on the merits. As such, this factor is neutral. 28 The motion is denied, however, because the remaining factors do not tip in 1 Plaintiff’s favor. First, Plaintiff does not demonstrate a likelihood of irreparable harm in 2 the absence of an injunction. To obtain a preliminary injunction, a plaintiff must 3 demonstrate a concrete, rather than merely speculative likelihood of harm. See Herb Reed 4 Enters., LLC v. Fla. Ent. Mgmt. Inc., 736 F.3d 1239, 1250 (9th Cir. 2013). Here, Plaintiff 5 does not show that he faces a likelihood of imminent or concrete injury by DCS or any 6 other defendant in the absence of an injunction. The facts he alleges do not establish a 7 pattern of harassment that is likely to repeat unless the Court enters an injunction. 8 Additionally, Plaintiff claims that the December 2022 charges against him were dropped 9 in their entirety; thus, in the absence of evidence that further prosecution or harassment is 10 imminent, an injunction is not the proper remedy. Instead, Plaintiff’s remedy, if he has 11 one, is in damages for the malicious prosecution claim. 12 Lastly, the balance of the equities and public interest factors do not favor Plaintiff. 13 While the Plaintiff’s requested injunction could prevent DCS from engaging with Plaintiff 14 in a way that he finds harassing, it could also prevent DCS and other state entities from 15 investigating and prosecuting Plaintiff’s case. Without further evidence of wrongdoing, 16 the Court will not enjoin the State or its agents from carrying out their functions. Finally, 17 an injunction does not serve the public interest because it could prevent DCS and other 18 state actors from engaging in investigations and prosecutions to protect the public. As 19 such, the Winter factors do not favor Plaintiff and his motion for preliminary injunction is 20 denied. Plaintiff’s request to amend his Third Amended Complaint will be addressed at 21 the time the Court screens his Third Amended Complaint and addresses his remaining 22 motions. [28] 1 CONCLUSION 2 Accordingly, 3 IT IS THEREFORE ORDERED that Plaintiff's Motion for Protective Order (Doc. 19) is DENIED. 5 Dated this 6th day of January, 2023. ° Wars ) 5 A Whacrsay Sooo) 8 Chief United states District Judge [28] _5-