Kimble v. Birchak

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25-cv-3507-AGS-SBC
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Jolee KIMBLE,
Plaintiff,
v.
Frank BIRCHANK,
Defendant.
Case No.: 25-cv-3507-AGS-SBC
ORDER DENYING MOTIONS FOR
RESTRAINING ORDER (ECF 5) AND
FOR APPOINTED COUNSEL (ECF 3)
Plaintiff Jolee Kimble, proceeding without an attorney, seeks an “ex parte restraining
order” and appointed counsel. (ECF 5, at 1; ECF 3.) Because the complaint was previously
dismissed in this case—and has not been amended—her requests are denied.
DISCUSSION
A. 	Motion for Temporary Restraining Order
A temporary restraining order is a form of emergency injunctive relief without notice
to the other side. See Fed. R. Civ. P. 65. Such emergency relief is “an extraordinary remedy
never awarded as of right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). To
obtain such an order, plaintiff “must establish that [s]he is likely to succeed on the merits,
that [s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in [her] favor, and that an injunction is in the public interest.” Id.;
see also Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (“[T]he legal standards
applicable to TROs and preliminary injunctions are substantially identical.” (cleaned up)).
Kimble’s request never leaves the starting gate. An emergency injunction at a case’s
start “is appropriate when it grants relief of the same nature as that to be finally granted.”
Pacific Radiation Oncology v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). But
when a court “dismissed Plaintiff[’s] complaint before [she] moved for a TRO [temporary
restraining order],” as here, there is “no underlying complaint to which the motion could
relate,” and this Court lacks “authority to grant injunctive relief in the form of a TRO.” See
Yoshimoto v. Alaska Airlines, Inc., No. 24-6692, 2025 WL 2911144, at *2 (9th Cir. Oct. 14,
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2025); (ECF 4 (order dismissing complaint)). So, the request must be denied.
Even if Kimble’s complaint weren’t already dismissed, her motion would fail to
meet the temporary-restraining-order standard. Most of her filing, difficult as it is to
decipher, complains about the behavior of a non-defendant named “Michael Bergen.” (See,
e.g., ECF 5, at 1.) The captioned defendant—Superior Court Judge Michael Birchank—
doesn’t appear anywhere in the motion itself. (See id. passim.) His name first appears in
the exhibits attached to the motion, which indicate that Judge Birchank denied Kimble’s
request to file a similar motion because the Superior Court adjudged Kimble a “vexatious
litigant.” (See ECF 5-1, at 1.) But even if this ruling is what Kimble is complaining about
and seeking to restrain, this Court is forbidden from sitting as a “de facto” appeals court
over state-court actions. See Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). For that
reason alone, Kimble is unlikely to succeed on any civil claim challenging Judge
Birchank’s judicial actions. Since “[l]ikelihood of success on the merits is the most
important factor” for a temporary restraining order, when “a movant fails to meet this
threshold inquiry,” the Court “need not consider the other factors.” Geo Grp., Inc. v. Inslee,
151 F.4th 1107, 1114 (9th Cir. 2025) (cleaned up).
Thus, for both reasons, the motion for emergency injunctive relief is DENIED.
B. 	Motion for Appointed Counsel
For similar reasons, her request for appointed counsel fails. For such an appointment,
a civil plaintiff must show “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991). To find such circumstances, the Court must evaluate, among other
things, “the likelihood of success on the merits.” Id. (cleaned up). But, as previously
discussed, her chance of success is almost zero: her complaint was dismissed because “the
only named defendant—a Superior Court judge—appears to be immune from suit.” (See
ECF 4, at 2.) When “the court is unable to determine whether plaintiff’s underlying claims
have merit,” as in this case, “appointment of counsel is premature.” See Fuller v. Houston,
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No. EDCV 21 00127 JGB (AS), 2022 WL 225671, at *2 (C.D. Cal. Jan. 25, 2022)
(collecting cases). So, the appointment-of-counsel motion is DENIED.
Dated: December 19, 2025
___________________________
Hon. Andrew G. Schopler
United States District Judge
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