Free Response in Opposition to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RICHARD G. PATRICK Assistant U.S. Attorney Arizona State Bar No. 5148 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Charles August Schlund, III, an individual Plaintiff, v. George W. Bush, President of the United States, a Sovereign Nation, George W. Bush, an individual; Does 1-10, individuals; Does 11-20, entities, Defendants. The federal defendants, President George W. Bush and unnamed others, hereby respond CIV-03-01590-PHX-VAM FEDERAL DEFENDANTS' RESPONSE IN OPPOSITION TO EX-PARTE APPLICATION AND MOTION FOR EMERGENCY TEMPORARY RESTRAINING ORDER AND REQUEST FOR HEARING ON TEMPORARY RESTRAINING ORDER (F.R.C.P. 65(a) AND 65(b)(1)

17 in opposition to the plaintiff's latest motion for injunctive relief (temporary restraining order). 18 In general, injunctive relief is "to be used sparingly, and only in a clear and plain case." Rizzo 19 v. Goode, 423 U.S. 362, 378 (1976). Injunctive relief "is not justified when based mainly on 20 speculation." Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1216 (9th Cir. 1984). 21 To obtain injunctive relief against government actions which allegedly violate the law, the injury 22 or threat of injury must be real and immediate and not conjectural or hypothetical. Orantes23 Hernandez v. Thornburg, 919 F.2d 549, 557 (9th Cir. 1990). Finally, injunctive relief is justified 24 only where plaintiff proffers some "chance of success on the merits." Martin v. International 25 Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984). 26 27 28

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Here, plaintiff's claims of the need for injunctive relief are based upon pure fantasy.

2 Furthermore, in view of the pending motion to dismiss, plaintiff has no chance to prevail on the 3 merits. Accordingly, the current motion for injunctive relief should be denied.1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiff is a frequent filer in this District. Schlund v. United States, CIV-98-1875-PHX-RCB, aff'd mem, 246 F.3d 676 (9th Cir. 2000); Schlund v. United States, CIV-02-0373-PHX-MHM, aff'd mem, 120 Fed. Appx. 134 (9th Cir. 2005);th Schlund v. Department of Justice, CIV-02-0376-PHX-JAT, aff'd mem, 2005 WL 844838 (9 Cir. 2005). The same fanciful claims made in the case before this Court appear to one degree or the other in those prior cases. See Judge Broomfield's February 4, 1999 Order in CIV-98-1875-PHX-RCB (copy attached). Disposition of these cases "requires a substantial amount of courts' time and attention - two commodities already in very short supply." Hart v. Massanri, 266 F.3d 1155, 1172 (9th Cir. 2001). Pursuant to Fed. R. Civ. P. 17(c) and/or 28 U.S.C. § 1651, this Court has the sua sponte authority to inquire into plaintiff's competency to prosecute this litigation. Rule 17(c) does not require the Court to do so, but it also does not prevent the Court from so inquiring. Ferrelli v. River Manor Health Care Center, 323 F.3d 196 (2d Cir. 2003). The district court in Cyntje v. Government of the Virgin Islands, 95 F.R.D. 430, 782 (D. V.I. 1982), aff'd mem, 782 F.2d 1027 (3rd Cir. 1985), in a somewhat analogous situation ("because of the nature and substance of plaintiff's complaints") set a hearing "for the purpose of determining whether there is sufficient cause to have a psychiatrist appointed by the Court conduct a mental examination of the plaintiff." Id. at 431. It did so as a threshold step in aide of its Rule 17(c) appointment power.
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WHEREFORE it is prayed that this motion be granted. Respectfully submitted this 19th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/Richard G. Patrick RICHARD G. PATRICK Assistant U.S. Attorney

Plaintiff's request for a TRO hearing should be denied for the reasons set forth in the body of this response; however, whether the Court wishes to set a hearing to "afford the Court 25 an opportunity to observe the plaintiff's behavior and lucidity" is for its sua sponte 433; (9th Cir. 1989) 26 consideration. Id. at when see Krain v. Smallwood, 880 F.2d 1119, 1121competence of a ("preferred procedure a substantial question exists regarding the mental party proceeding pro se is for the District Court to conduct a hearing to determine whether or 27 not the party is competent so that a representative may be appointed if needed."). 28 2

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CERTIFICATE OF SERVICE I hereby certify that on October 19, 2005, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System:

Charles August Schlund, III 4 8520 North 54th Drive Glendale, Arizona 85302 5 s/Diana Henson 6 ______________________________ U.S. Attorney's Office 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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