Cesar Caballero v. Michael Williams

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 28, 2021
• Docket: 21-15879
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAR CABALLERO, No. 21-15879

Plaintiff-Appellant, D.C. No. 2:21-cv-00638-KJM-CKD

v. MEMORANDUM* MICHAEL WILLIAMS; et al.,

Defendants-Appellees, ______________________________

D-Q UNIVERSITY - CALIFORNIA, BOARD OF TRUSTEES,

Intervenor-Pending.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Cesar Caballero appeals from the district court’s order denying his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). application for a temporary restraining order (“TRO”) in his action to adjudicate

his rights to Indian lands and alleging harassment in violation of state law. We

have jurisdiction to determine our own jurisdiction. Havensight Capital LLC v.

Nike, Inc., 891 F.3d 1167, 1171 (9th Cir. 2018). We dismiss for lack of

jurisdiction.

We lack jurisdiction over this interlocutory appeal because the district

court’s denial of a TRO was not tantamount to the denial of a preliminary

injunction and did not effectively decide the merits of the case. See Religious

Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306, 1308 (9th

Cir. 1989) (although ordinarily not appealable, denial of a TRO may be appealed if

tantamount to denial of a preliminary injunction; the court considers whether the

denial followed a full adversary hearing and whether, absent review, appellant

would be effectively foreclosed from pursuing further interlocutory relief);

Graham v. Teledyne-Cont’l Motors, 805 F.2d 1386, 1388 (9th Cir. 1987) (denial of

TRO may be appealed if it effectively decides the merits of the case).

All pending motions are denied as moot.

DISMISSED.

2 21-15879