app for restraining order

Plaintiff’s Application for Temporary Restraining Order

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JENNER & BLOCK LLP ANDREW J. THOMAS (Bar No. 159533) [email protected] LISA J. KOHN (Bar No. 260236) [email protected] CHRISTINA AVEDISSIAN (Bar No. 288067) [email protected] 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Telephone: 213 239-5100 Facsimile: 213 239-5199 ACLU FOUNDATION OF SOUTHERN CALIFORNIA PETER J. ELIASBERG (Bar No. 189110) [email protected] 1313 West 8th Street Los Angeles, CA 90017 Telephone: 213 977-9500 Facsimile: 213 977-5299 Attorneys for Plaintiff, EFREN MONTIEL JIMENEZ

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EFREN MONTIEL JIMENEZ,

Plaintiff,

v.

COUNTY OF SAN BERNARDINO,

Defendant.

Case No. EDCV13-02163 DSF (RZx)

EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: ENTRY OF PRELIMINARY INJUNCTION

Judge: Hon. Dale S. Fischer

Date: To Be Determined Time: To Be Determined Ctrm: 840 – Roybal Building

1 Plaintiff’s Application for Temporary Restraining Order

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Plaintiff Efren Montiel Jimenez hereby applies ex parte to the Court for a

Temporary Restraining Order and Order to Show Cause re Preliminary Injunction,

prohibiting defendant, the County of San Bernardino (the “County”), from refusing to

display two of his paintings at the County Government Center as part of the County’s

fifth annual National Hispanic Heritage Month Art Exhibit (the “2013 Exhibit”).

This matter is urgent because the 2013 Exhibit is currently scheduled to end on

Friday, November 29, 2013 and to be dismantled on Monday, December 2, 2013.

Plaintiff seeks to have his paintings restored to the 2013 Exhibit and for the duration of

the 2013 Exhibit to be extended by the number of days that his paintings were

unlawfully ordered to be removed so that the censored works can be publicly displayed

for the full period of time originally afforded by the County. This relief would be

more valuable and effective if granted before the 2013 Exhibit is scheduled to be

dismantled after November 29, 2013.

This Application is made pursuant to Rule 65 of the Federal Rules of Civil

Procedure and Local Rule 7-19 of the Local Rules of the United States District for the

Central District of California, and is based on the attached Declarations of Rudy

Ramirez, Brad Borrero, Peter Eliasberg, and Lisa J. Kohn, the attached Memorandum

of Points and Authorities, the accompanying Proposed Order, the Complaint filed in

this action on November 22, 2013, and such other matters as may be presented to the

Court at a hearing on this Application.

This Application is made on the following grounds:

1. Plaintiff has a substantial likelihood of success on the merits of his claim

against the County for violation of 42 U.S.C. § 1983 for the deprivation of his First

Amendment right to freedom of expression, because the County created a designated

public forum and then requested that Plaintiff’s artwork be removed from the

Government Center without a compelling government interest or a narrowly tailored

scheme for exclusion.


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2. Plaintiff will suffer irreparable harm if this injunction is not granted. It is

well established that Plaintiff’s loss of his First Amendment freedoms, for even a short

period of time, unquestionably constitutes irreparable harm.

3. The balance of hardships weighs decidedly in Plaintiff’s favor, as the only

potential harm to the County in the event of a temporary restraining order is the

possibility of displeasing the small number of visitors and County employees the

County claims complained about the subject matter of two of Plaintiff’s paintings and

one painting by artist Armando Aleman. In contrast, denying the temporary

restraining order would stifle Plaintiff’s First Amendment right to free expression.

4. The public interest strongly favors the issuance of a temporary restraining

order, because there is significant public interest in upholding First Amendment

principles and allowing access to constitutionally protected expression.

WHEREFORE, Plaintiff respectfully requests that the Court enter a Temporary

Restraining Order, pending hearing on an Order to Show Cause, (1) enjoining the

County from refusing to exhibit Plaintiff’s paintings in the Government Center; and (2)

extending the duration of the 2013 Exhibit for the full period the TRO remains in

effect under FRCP 65.

Plaintiff further requests that that Court enter an Order to Show Cause for

Issuance of a Preliminary Injunction, directing the County to show why a preliminary

injunction should not issue (1) enjoining the County from refusing to exhibit Plaintiff’s

paintings in the Government Center for the pendency of this action; and (2) extending

the duration of the 2013 Exhibit for the number of days that Plaintiff’s paintings were

unlawfully removed from the exhibit, so that his censored artworks can be publicly

displayed for the full period of time originally afforded by the County.

Counsel for Plaintiff gave notice of this TRO Application to County Counsel

Jean-Rene Basle on November 25, 2013 by telephone and e-mail, and provided further


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notice by telephone to attorney Teresa M. McGowan of the County Counsel’s office

on November 26, 2013. The contact information for Mr. Basle is: Jean-Rene Basle

County Counsel County of San Bernardino 385 N. Arrowhead Avenue, 4th Floor

San Bernardino, CA 92415 Telephone: (909) 387-5455 Fax: (909) 387-5462

E-mail: [email protected]

The contact information for Ms. McGowan is: Teresa M. McGowan

County Counsel’s Office County of San Bernardino 385 N. Arrowhead Avenue, 4th Floor

San Bernardino, CA 92415 Telephone: (909) 387-5283 Fax: (909) 387-4069

E-mail: [email protected]

Dated: November 26, 2013

By:

JENNER & BLOCK LLP s/Andrew J. Thomas

Andrew J. Thomas

By:

ACLU FOUNDATION OF OF SOUTHERN CALIFORNIA s/Peter J. Eliasberg

Peter J. Eliasberg Attorneys for Plaintiff Efren Montiel Jimenez

app for restraining order

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