1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Jolee KIMBLE, Case No.: 25-cv-3507-AGS-SBC 4 Plaintiff, ORDER DENYING MOTIONS FOR RESTRAINING ORDER (ECF 5) AND 5 v. FOR APPOINTED COUNSEL (ECF 3) 6 Frank BIRCHANK, 7 Defendant. 8 9 Plaintiff Jolee Kimble, proceeding without an attorney, seeks an “ex parte restraining 10 order” and appointed counsel. (ECF 5, at 1; ECF 3.) Because the complaint was previously 11 dismissed in this case—and has not been amended—her requests are denied. 12 DISCUSSION 13 A. Motion for Temporary Restraining Order 14 A temporary restraining order is a form of emergency injunctive relief without notice 15 to the other side. See Fed. R. Civ. P. 65. Such emergency relief is “an extraordinary remedy 16 never awarded as of right.” Winter v. Natural Res. Def. Council,

(2008). To 17 obtain such an order, plaintiff “must establish that [s]he is likely to succeed on the merits, 18 that [s]he is likely to suffer irreparable harm in the absence of preliminary relief, that the 19 balance of equities tips in [her] favor, and that an injunction is in the public interest.” Id.; 20 see also Washington v. Trump,

(9th Cir. 2017) (“[T]he legal standards 21 applicable to TROs and preliminary injunctions are substantially identical.” (cleaned up)). 22 Kimble’s request never leaves the starting gate. An emergency injunction at a case’s 23 start “is appropriate when it grants relief of the same nature as that to be finally granted.” 24 Pacific Radiation Oncology v. Queen’s Med. Ctr.,

(9th Cir. 2015). But 25 when a court “dismissed Plaintiff[’s] complaint before [she] moved for a TRO [temporary 26 restraining order],” as here, there is “no underlying complaint to which the motion could 27 relate,” and this Court lacks “authority to grant injunctive relief in the form of a TRO.” See 28 Yoshimoto v. Alaska Airlines, Inc., No. 24-6692,

, at *2 (9th Cir. Oct. 14, 1 2025); (ECF 4 (order dismissing complaint)). So, the request must be denied. 2 Even if Kimble’s complaint weren’t already dismissed, her motion would fail to 3 meet the temporary-restraining-order standard. Most of her filing, difficult as it is to 4 decipher, complains about the behavior of a non-defendant named “Michael Bergen.” (See, 5 e.g., ECF 5, at 1.) The captioned defendant—Superior Court Judge Michael Birchank— 6 doesn’t appear anywhere in the motion itself. (See

passim.) His name first appears in 7 the exhibits attached to the motion, which indicate that Judge Birchank denied Kimble’s 8 request to file a similar motion because the Superior Court adjudged Kimble a “vexatious 9 litigant.” (See ECF 5-1, at 1.) But even if this ruling is what Kimble is complaining about 10 and seeking to restrain, this Court is forbidden from sitting as a “de facto” appeals court 11 over state-court actions. See Cooper v. Ramos,

(9th Cir. 2012). For that 12 reason alone, Kimble is unlikely to succeed on any civil claim challenging Judge 13 Birchank’s judicial actions. Since “[l]ikelihood of success on the merits is the most 14 important factor” for a temporary restraining order, when “a movant fails to meet this 15 threshold inquiry,” the Court “need not consider the other factors.” Geo Grp., Inc. v. Inslee, 16

, 1114 (9th Cir. 2025) (cleaned up). 17 Thus, for both reasons, the motion for emergency injunctive relief is DENIED. 18 B. Motion for Appointed Counsel 19 For similar reasons, her request for appointed counsel fails. For such an appointment, 20 a civil plaintiff must show “exceptional circumstances.” Terrell v. Brewer,

, 21 1017 (9th Cir. 1991). To find such circumstances, the Court must evaluate, among other 22 things, “the likelihood of success on the merits.”

(cleaned up). But, as previously 23 discussed, her chance of success is almost zero: her complaint was dismissed because “the 24 only named defendant—a Superior Court judge—appears to be immune from suit.” (See 25 ECF 4, at 2.) When “the court is unable to determine whether plaintiff’s underlying claims 26 have merit,” as in this case, “appointment of counsel is premature.” See Fuller v. Houston, 27 28 1 EDCV 21 00127 JGB (AS),

, at *2 (C.D. Cal. Jan. 25, 2022) 2 || (collecting cases). So, the appointment-of-counsel motion is DENIED. 3 Dated: December 19, 2025

5 Hon. rew G. Schopler United States District Judge

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