Children's Hospital Okland, Dec. 30, 2013 McMath Civil Rights Lawsuit filing

8/13/2019 Children's Hospital Okland, Dec. 30, 2013 McMath Civil Rights Lawsuit filing

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Case4:13-cv-05993-SBA Document1 Filed12/30/13 Page1 of 16


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UnitedStatesDistrictCourt

FortheNo

rthernDistrictofCalifornia

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

LATASHA WINKFIELD, as anindividual and as guardian adlitem and mother of Jahi McMath,

Plaintiff,

v.

CHILDRENS HOSPITAL & RESEARCHCENTER AT OAKLAND; DR. DAVIDDURAND,

Defendants.

________________________________/

No. C 13-5993 SBA

ORDER DEFERRING INPART AND DENYINGIN PARTPLAINTIFFSAPPLICATION FOR ATEMPORARYRESTRAINING ORDER(Docket No. 2)

On December 30, 2013, Plaintiff Latasha Winkfield moved ex

parte for a temporary restraining order (TRO) seeking to keep Jahi

McMath on cardio pulmonary support and to insert a gastric tube

and a tracheostomy tube to allow her to be transferred to another

facility. Defendants Childrens Hospital & Research Center at

Oakland and Dr. David Durand filed an opposition. On the same

day, the Alameda County Superior Court entered an order extending

its TRO requiring Defendants to maintain the status quo of

treatment provided to McMath, but declining to order insertion of

a gastric tube or a tracheostomy tube.

To qualify for a temporary restraining order, the moving

party must demonstrate (1) a likelihood of success on the merits;

(2) a significant threat of irreparable injury; (3) that the

balance of hardships favors the applicant; and (4) whether any

public interest favors granting an injunction. Raich v.

Ashcroft, 352 F.3d 1222, 1227 (9th Cir. 2003); see also Winter v.

Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).



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Unite

dStatesDistrictCourt

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Alternatively, a temporary restraining order could issue where

the likelihood of success is such that serious questions going to

the merits were raised and the balance of hardships tips sharply

in plaintiffs favor, so long as the plaintiff demonstrates

irreparable harm and shows that the injunction is in the public

interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1131 (9th Cir. 2011) (citation and internal quotation and

editing marks omitted).

After considering the papers and the impact of the

continuation of the state courts TRO, the Court defers

consideration of the application with respect to maintaining the

status quo of treatment provided to McMath, and DENIES Plaintiffs

application with regard to insertion of a gastric tube and a

tracheostomy tube. The Court will consider a motion for

preliminary injunction at a hearing before Judge Armstrong on

January 7, 2014 at 1:00 PM. Plaintiff may file a brief no later

than January 2, 2014 at 12:00 PM. Defendants may file a response

no later than January 3, 2014 at 5:00 PM. Plaintiff may file a

reply no later than January 6, 2014 at 9:00 AM.

IT IS SO ORDERED.

Dated: CLAUDIA WILKENUnited States District Judge


12/30/2013


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Children's Hospital Okland, Dec. 30, 2013 McMath Civil Rights Lawsuit filing

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