Hernandez v. Ortiz et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRISTOPHER LEMAR HERNANDEZ,
Plaintiff,
v. No. 1:26-cv-00499-KG-JFR
ALICIA ORTIZ and
VINCE CRESPIN,
Defendants.
ORDER DENYING MOTION
FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
THIS MATTER comes before the Court on pro se Plaintiff’s Emergency Motion for
Temporary Restraining Order and Preliminary Injunction, Doc. 4, filed February 19, 2026
(“Motion”).
Plaintiff allege that his “truck and work tools were nonconsensually towed from private
property” and that his “vehicle [is] currently held by ABQ 24-Hour Towing LLC.” Complaint
at 8; Emergency Motion for Temporary Restraining Order and Preliminary Injunction at1, Doc. 4,
filed February 19, 2026. Defendants are employees of the Transportation Regulation Bureau, New
Mexico Department of Transportation. Plaintiff alleges: (i) the “tow authorization documentation
was facially non-compliant with NMAC 18.3.12.14;” (ii) Plaintiff provided Defendants with
documentation demonstrating the alleged violations and met with Defendants who reviewed the
regulation and complaint; and (iii) Defendants “refused to perform mandatory enforcement duties
required by New Mexico Administrative Code 18.3.12.14, thereby allowing the unlawful seizure
and continued deprivation of Plaintiff’s vehicle and work tools.” Complaint at 7-8. The regulation
cited by Plaintiff sets forth the authorization and procedure for moving motor vehicles by a towing
service; the regulation does not set forth mandatory enforcement requirements. See N.M.A.C.
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§ 18.3.12.14. Plaintiff asserted claims for unreasonable seizure of Plaintiff’s property and for
denial of procedural due process. See Complaint at 9.
Plaintiff seeks a temporary restraining order and preliminary injunction “preventing the
sale, transfer, destruction, or disposal of Plaintiff’s vehicle currently held by ABQ 24-Hour Towing
LLC pending resolution of this action” and ordering ABQ 24-Hour Towing LLC and any persons
acting in concert with it to “Not [] sell, auction, transfer, destroy, alter, or dispose of Plaintiff’s
vehicle” and “to preserve the vehicle and all contents.” Plaintiff’s Emergency Motion for
Temporary Restraining Order and Preliminary Injunction at 1, 5, Doc. 4, filed February 19, 2026
(“Motion”); see also Complaint at 1 (ABQ 24-Hour Towing LLC is not named as a Defendant);
Fed. R. Civ. P. 65(d)(2) (an injunction and restraining order only bind the parties, the parties’
agents and other persons who are in active concert or participation with the parties and their
agents).
The court may issue a temporary restraining order without written or oral notice to
the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and
the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1).
Because a preliminary injunction is an “extraordinary remedy never awarded as of
right,” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24, 129 S.Ct. 365, 172
L.Ed.2d 249 (2008), the movant must make a “clear and unequivocal” showing it
is entitled to such relief, Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186,
1190 (10th Cir. 2008) (quoting Dominion Video Satellite, Inc. v. Echostar Satellite
Corp., 356 F.3d 1256, 1260 (10th Cir. 2004)). To obtain a preliminary injunction,
the movant must show (1) it “is substantially likely to succeed on the merits,” (2) it
“will suffer irreparable injury if the injunction is denied,” (3) its “threatened injury
outweighs the injury the opposing party will suffer under the injunction,” and (4)
“the injunction would not be adverse to the public interest.” New Mexico Dep't of
Game & Fish, 854 F.3d at 1246 (quoting Fish, 840 F.3d at 723).
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Colorado v. U.S. Environmental Protection Agency, 989 F.3d 874, 883-84 (10th Cir. 2021). (“Each
of these elements is a prerequisite for obtaining a preliminary injunction.” Diné Citizens Against
Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (emphasis added).
The Court denies Plaintiff’s Motion for a temporary restraining order and preliminary
injunction. First, Plaintiff has not certified in writing any efforts he made to give notice to
Defendants and the reasons why notice should not be required.
Second, Plaintiff has not made a clear and unequivocal showing that he will suffer
irreparable injury if the injunction is denied. Plaintiff states “once sold, the property cannot be
recovered and damages would be inadequate because the vehicle contains tools and work
equipment, it is necessary for Plaintiff’s livelihood, unique property will be permanently lost [and]
evidence in this case would be destroyed.” Motion at 2. Plaintiff also states “courts recognize loss
of unique personal property constitutes irreparable harm.” Motion at 2. Plaintiff does not,
however, explain why monetary or other legal remedies are inadequate for the loss of his truck,
tools, work equipment and income. See D.N.M.LR-Civ. 7.1(a) (“A motion must . . . state with
particularity the grounds [for] the relief sought”); First Western Capital Mgmt Co. v. Malamed,
874 F.3d 1136, 1141 (10th Cir. 2017) (“A party may be granted a preliminary injunction only when
monetary or other traditional legal remedies are inadequate”); Ditucci v. Bowser, 985 F.3d 804,
811 (10th Cir. 2021) (“it is well settled that simple economic loss usually does not, in and of itself,
constitute irreparable harm [because] such losses are compensable by monetary damages”).
Plaintiff also does not describe the “unique property” or cite any legal authority for the proposition
that “loss of unique personal property constitutes irreparable harm.” See D.N.M.LR-Civ. 7.3(a)
(“A motion . . . must cite authority in support of the legal positions”).
Third, Plaintiff has not made a clear and unequivocal showing that he is substantially likely
to succeed on the merits on his claims for unreasonable seizure and denial of due process. There
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are no allegations showing that Defendants seized Plaintiff’s property. Plaintiff states he met with
Defendants regarding the towing of his truck and tools but has not alleged facts regarding the
appropriate level of process that Plaintiff was entitled to or that Defendants deprived Plaintiff of
property without engaging in fair procedures. See Denver Homeless Out Loud v. Denver,
Colorado, 32 F.4th 1259, 1276 (10th Cir. 2022) (The Court “asks two questions when considering
a procedural-due-process claim: (1) Did the plaintiff possess a protected property or liberty interest
to which due process protections apply? And if so, (2) was the plaintiff afforded an appropriate
level of process?”). Furthermore, Plaintiff has not alleged facts showing that the unspecified
enforcement duties are mandatory or that Defendants deprived Plaintiff of a federally protected
right by declining to initiate enforcement of a state law. See Schaffer v. Salt Lake City Corp., 814
F.3d 1151, 1155 (10th Cir. 2016) ("The two elements of a Section 1983 claim are (1) deprivation
of a federally protected right by (2) an actor acting under color of state law"); Diamond v. Charles,
476 U.S. 54, 64 (1986) (“a private citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another”).
IT IS ORDERED that Plaintiff’s Emergency Motion for Temporary Restraining Order and
Preliminary Injunction, Doc. 4, filed February 19, 2026, is DENIED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the
NEF (Notice of Electronic Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
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