Kline v. Tucson, City of et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James David Kline,
Plaintiff,
v.
City of Tucson, et al.,
Defendants.
No. CV-26-00018-TUC-JGZ (JR)
REPORT & RECOMMENDATION
Pending before the Court is Pro Se Plaintiff James David Kline’s Emergency
Motion for Temporary Restraining Order and Request for Preservation of Evidence to
Protect Litigation Integrity. (Doc. 21.) This matter is referred to United States Magistrate
Judge Jacqueline Rateau for Report and Recommendation pursuant to Local Rule 72.1 and
72.2 of the Local Rules of Civil Procedure. (Doc. 12.) As more fully set forth below, the
undersigned recommends that the district court, after its independent review, deny the
Motion.
I. Background
On January 8, 2026, the Plaintiff filed his original complaint and an Application to
Proceed in District Court Without Prepaying Fees or Costs. (Docs. 1, 2.) On April 9, 2026,
the undersigned issued a Report and Recommendation (R&R) recommending the district
court grant Plaintiff in forma pauperis (IFP) status and dismiss the Complaint with leave
to amend for failure to state a claim in accordance with 28 U.S.C. § 1915(e)(2).1 (Doc. 13.)
1 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted in
forma pauperis status, the district court shall dismiss the case “if the court determines that
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On April 23, 2026, prior to the district court ruling on the R&R, Plaintiff filed his First
Amended Complaint. (Doc. 16.) On April 27, 2026, the district court accepted and adopted
in full the R&R, dismissing the Plaintiff’s original Complaint and granting Plaintiff IFP
status. 2 (Doc. 15.)
A. First Amended Complaint
Plaintiff’s FAC alleges five counts against the defendants for violation of his
substantive due process rights, his First, Fourth, Sixth, and Fourteenth Amendment rights,
and a Monell claim against the City of Tucson. (Doc. 16 at 10-12.) In Count I, Plaintiff
claims that Defendants Maldonado, D’Arquea, Arevello, and Cuezas “acted in concert to
execute a Predetermined Adjudication” to violate Plaintiff’s procedural due process in
violation of 42 U.S.C. §§ 1983 and 1985. (Id. at 10-11.) In Count II, Plaintiff claims that
the Defendants’ violated 42 U.S.C. § 1983 through the “willful defiance of 50-year
narrowing construction…to criminalize protected expression constitutes [which] an
arbitrary abuse of power that shocks the conscience” and violates his Fourteenth and First
Amendment rights. (Id. at 11.) In Count III, Plaintiff claims that his Sixth and Fourteenth
Amendment rights were violated because “Defendant D’Arquea’s injection of moral
turpitude elevated the offense to serious[,]” and “Defendant Maldonado willfully denied
court-appointed counsel to prevent interference with the Predetermined Adjudication.”
(Id.) In Count IV, Plaintiff claims that his Fourth Amendment rights were violated when
“Defendants Stout and Sublette coordinated their physical movements to perform a
warrantless search[,]” and “[Defendant] Stout…manipulated his [Body Worn Camera] to
obstruct the forensic record.” (Id. at 12.) In Count V, Plaintiff asserts municipal liability
against Defendant City of Tucson under Monell alleging the City “ratified the
unconstitutional customs and conspiracy. (Id.) For relief, Plaintiff asks for compensatory
damages, punitive damages, restorative injunctive relief “for full restoration , including a
. . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief
maybe granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.”
2 Because Plaintiff has been granted IFP status, this court must also screen Plaintiff’s FAC.
Accordingly, the FAC has not yet been served on the Defendants.
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new residential structure and remediation of the park environment,” global injunctive relief
“enjoining operation of the Tucson City Court and City Attorney’s Office until they
demonstrate a verified, constitutional procedural architecture,” and declaratory relief
“declaring the conspiracy and constitutional violations as a matter of law.” (Id. at 14-15.)
B. Motion for Temporary Restraining Order
On May 1, 2026, Plaintiff filed the immediate Emergency Motion for Temporary
Restraining Order and Request for Preservation of Evidence to Protect Litigation Integrity.
(Doc. 21.) In his Motion, Plaintiff alleges that after filing the immediate lawsuit he has
observed “constant physical surveillance at his residence…by a gray Dodge Durango with
blacked-out windows.” (Doc. 21 at 1.) Plaintiff further alleges his “mobile phone contains
the primary evidence of the state-level irregularities, including audio records.” (Id.)
Plaintiff asserts that he fears arrest or seizure intended to compromise such evidence in his
possession. (Id.) Accordingly, Plaintiff requests the district court issue a temporary
restraining order (TRO) to (1) “Prohibit[] further surveillance or harassment of Plaintiff;”
(2) “Restrain Defendants from searching, seizing, or interfering with Plaintiff’s mobile
phone;” and (3) “preserv[e] all CAD logs, GPS data, and communications related to
surveillance of Plaintiff’s residence.” (Doc. 21 at 2.)
II. Legal Standard – Temporary Restraining Order
A party seeking preliminary injunctive relief under Federal Rule of Civil Procedure
65 must show that: (1) he is likely to succeed on the merits; (2) he is likely to suffer
irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in his
favor; and (4) an injunction is in the public interest. Pom Wonderful LLC v. Hubbard, 775
F.3d 1118, 1124 (9th Cir. 2014) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008)); see Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., Inc., 240 F.3d 832, 839
n.7 (9th Cir. 2001) (noting that the standard for issuing a preliminary injunction is
substantially identical to the standard for issuing a TRO). The balance of equities and
public interest factors “merge when the Government is the opposing party.” Nken v.
Holder, 556 U.S. 418, 435 (2009).
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However, the Ninth Circuit has explained that “there must be a sufficient nexus
between the claims raised in a motion for injunctive relief and the claims set forth in the
underlying complaint itself” for a district court to have the authority to grant the relief
requested. Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 636 (9th
Cir. 2015). “The relationship between the preliminary injunction and the underlying
complaint is sufficiently strong where the preliminary injunction would grant ‘relief of the
same character as that which may be granted finally.’ ” Id. (quoting De Beers Consol.
Mines v. United States, 325 U.S. 212, 220 (1945)). “Though new assertions of misconduct
might support additional claims against a defendant, they do not support preliminary
injunctions entirely unrelated to the conduct asserted in the underlying complaint.” Id.
(citing Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)).
III. Discussion
As described above, Plaintiff’s Motion requests the Court issue an order: (1)
“Prohibiting further surveillance or harassment of Plaintiff;” (2) “[restraining] Defendants
from searching, seizing, or interfering with Plaintiff’s mobile phone;” and (3) “preserving
all CAD logs, GPS data, and communications related to surveillance of Plaintiff’s
residence.” (Doc. 21 at 2.) Because the relief requested here is not “of the same character”
as the relief requested in the FAC—but instead asserts new misconduct on behalf of the
Defendants—there is not therefore a “sufficient nexus” as a matter of law for the district
court to have the authority to grant such relief. See Pac. Radiation Oncology, LLC, 810
F.3d at 636-37. Accordingly, the undersigned recommends the district court deny the
Motion with prejudice.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that the district
court, after its independent review, enter an order ADOPTING this Report and
Recommendation and DENYING Plaintiff’s Emergency Motion for Temporary
Restraining Order (Doc. 21).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file
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written objections within fourteen days of being served with a copy of the Report and
Recommendation. A party may respond to the other party’s objections within fourteen
days. No reply shall be filed unless leave is granted by the district court. If objections are
not timely filed, they may be deemed waived. Failure to file timely objections to any factual
or legal determination of the Magistrate Judge may be considered a waiver of a party's right
to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should use the following
case number: CV-26-18-TUC-JGZ.
Dated this 4th day of May, 2026.
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