Cuviello v. City of Belmont

Background

Joseph Pat Cuviello, representing himself, sued the City of Belmont, City Manager Afshin Oskoui, and Parks and Recreation Director Brigitte Shearer. Cuviello alleged that the defendants suspended his volunteer invasive-plant removal program in November 2022 in retaliation for his criticism of the defendants and without due process, violating the First Amendment and the Constitution.

Cuviello and his wife founded Friends of Waterdog Open Space in 2020. The group removed invasive plants, including French broom, from Waterdog Open Space. On November 21, 2022, Director Shearer told Cuviello to stop all plant removal temporarily, including removal of French broom. Cuviello said the defendants did not explain the suspension.

Cuviello filed an emergency motion for a temporary restraining order on February 23, 2023, asking the court to require the defendants to let him resume removing the plants. The court held a hearing that day, and all parties agreed that a magistrate judge could decide the matter.

Legal standard

A temporary restraining order is an extraordinary remedy intended to preserve the current situation and prevent irreparable harm until a hearing can occur. An ex parte order—one issued before the opposing party has an opportunity to respond—requires specific facts showing that immediate and irreparable injury will occur before the opposing party can be heard.

The court applied the same four factors used for a preliminary injunction: likelihood of success on the merits, likely irreparable harm without an order, the balance of hardships, and the public interest. The court described immediate and irreparable harm as the most important requirement for the requested order.

Analysis and ruling

The court held that Cuviello had not shown enough urgency to justify an ex parte temporary restraining order. The defendants suspended his plant-removal efforts in November 2022, but he did not request the order until February 2023. Cuviello argued that French broom is easiest to remove while it blooms and before it produces seeds, approximately from January through June, and that the infestation would worsen if removal did not occur during that period.

The court found that this timing did not establish the immediate harm required for an ex parte order. The blooming period lasted until June, and plants could presumably still be removed after the court held a hearing following written submissions. The court therefore concluded that the alleged harm was not irreparable for purposes of the requested emergency relief.

The court denied the motion for an ex parte temporary restraining order. It set deadlines for the opposition and reply and scheduled a preliminary-injunction hearing for March 9, 2023. The order did not rule on the merits of Cuviello’s First Amendment or due-process claims.