Fonseca v. United States Immigration and Customs Enforcement

• Court: District Court, W.D. Washington
• Decided: January 4, 2021
• Docket: 3:20-cv-06255
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 VICTOR FONSECA, CASE NO. 20-6255 RJB 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. MOTION FOR TEMPORARY RESTRAINING ORDER 13 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et. al., 14 Defendants. 15

16 THIS MATTER comes before the Court on the Plaintiff’s Motion for Temporary 17 Restraining Order (“TRO”). Dkt. 3. The Court has considered the pleadings filed in support of 18 and in opposition to the motion and the remaining file. Oral argument has been requested but is 19 not necessary to decide the motion. 20 On December 30, 2020, Plaintiff, an U.S. Immigration and Customs Enforcement 21 (“ICE”) detainee at the ICE Processing Center in Tacoma, Washington, filed this case, asserting 22 his first amendment right to free speech and to petition the government and his fifth amendment 23 right to bodily integrity are being violated in connection with the Defendants’ alleged threats to 24 1 force feed him to end his hunger strike. Dkt. 1. The Plaintiff maintains that his hunger strike is 2 to protest the conditions of his confinement (related to the pandemic) and the fact of his 3 detention. Id. The Plaintiff now brings the pending motion, seeking an emergency order 4 “prohibiting force feeding and threats of force feeding.” Dkt. 3. 5 Standard on Motion. Pursuant to Fed. R. Civ. P. 65 (b)(1):

6 The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: 7 (A) specific facts in an affidavit or a verified complaint clearly show that 8 immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and 9 (B) the movant’s attorney certifies in writing any efforts made to give 10 notice and the reasons why it should not be required.

11 Under Rule 65 (a), “the court may issue a preliminary injunction only on notice to the adverse 12 party.” The Defendants received notice and filed a response (Dkt. 6) opposing the motion. 13 The standard to grant either a TRO or a motion for preliminary injunction is the same. 14 Los Angeles Unified Sch. Dist. V. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1980). 15 Plaintiffs seeking a TRO or preliminary injunction must establish one of two tests. All. for the 16 Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017). The first test requires plaintiffs to 17 show: (1) that they are “likely to succeed on the merits,” (2) that they are “likely to suffer 18 irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tips in [their] 19 favor,” and (4) “an injunction is in the public interest.” Coffman v. Queen of Valley Med. Ctr., 20 895 F.3d 717, 725 (9th Cir. 2018)(citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 21 (2008) (internal quotation marks omitted)). Under the second variant of the Ninth Circuit’s test 22 for a TRO or preliminary injunction, the “sliding scale” version of the Winter standard, “if a 23 plaintiff can only show that there are serious questions going to the merits—a lesser showing 24 1 than likelihood of success on the merits—then a preliminary injunction may still issue if the 2 balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are 3 satisfied.” All. for the Wild Rockies, at 1217 (internal quotation marks and citations omitted). 4 Decision on Motion for TRO. 5 The Plaintiff’s motion for a TRO (Dkt. 3) should be denied. The Plaintiff has failed to

6 make a sufficient showing on the second prong of both Ninth Circuit tests - that he is “likely to 7 suffer irreparable harm in the absence of preliminary relief.” While the Plaintiff asserts that the 8 Defendants have threatened to force feed him, he does not dispute that they need a court order to 9 do so. The Defendants indicate in their response that they have no plans to force feed the 10 Plaintiff at this time. Dkt. 6. They state that while his eating patterns still constitute a hunger 11 strike under their policies, the Plaintiff drinks Boost (a form of liquid nutrition) and occasionally 12 eats peanut butter and jelly sandwiches. Id. Further, the parties dispute whether the Defendants 13 have threatened to force feed the Plaintiff. Even if the Defendants have threatened him, there is 14 no indication that the Plaintiff has altered his conduct as a result. While not definitive, his

15 continued commitment to his hunger strike undermines the Plaintiff’s assertion that an 16 emergency order is necessary at this time. The Plaintiff has not shown that he is “likely to suffer 17 irreparable harm in the absence of [the] preliminary relief” that he seeks here. 18 Additionally, it is unclear whether the Plaintiff will succeed on the merits of his claims or 19 whether there are serious questions going to the merits. The Defendants argue that the Plaintiff’s 20 claims are not yet ripe (relying on their assertions that they have no current intention to force 21 feeding the Plaintiff and have not threatened to do so). Dkt. 6. The Court should not rule on this 22 issue because the motion for a TRO should be denied on other grounds and because this issue 23 has not been fully briefed (it was raised in a response). Further, the Defendants have not moved 24 1 to dismiss the for lack of ripeness. Even if they had, it appears that the Plaintiff’s claims for 2 relief in the Complaint include more than just the threat of force feeding, for example, placing 3 the Plaintiff in isolation. Additionally, there appears to be a dispute as to whether the Defendants 4 have been threatening the Plaintiff with force feeding. “The ripeness doctrine is drawn both 5 from Article III limitations on judicial power and from prudential reasons for refusing to exercise

6 jurisdiction.” Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010)(internal quotation 7 marks and citation omitted). “Through avoidance of premature adjudication, the ripeness 8 doctrine prevents courts from becoming entangled in abstract disagreements.” Id. It is not yet 9 clear that the disagreement at issue is “abstract;” it is also not clear that the Plaintiff is likely to 10 succeed on the merits or that there are serious questions going to the merits. The Court need not 11 reach the remaining prongs of the test for a TRO. 12 The motion for TRO (Dkt. 3) should be denied. 13 IT IS SO ORDERED. 14 The Clerk is directed to send uncertified copies of this Order to all counsel of record and

15 to any party appearing pro se at said party’s last known address. 16 Dated this 4th day of January, 2021. A 17

18 ROBERT J. BRYAN United States District Judge 19

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