(PC) Norsworthy v. Cate, et al, No. 2:2009cv02989 - Document 21 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 7/27/2010 RECOMMENDING that pltf's 2 , 12 , 15 and 19 motions for injunctive relief be denied. Referred to Judge Lawrence K. Karlton; Objections to F&R due w/in 14 days. (Yin, K)

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(PC) Norsworthy v. Cate, et al Doc. 21 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 JEFFREY BRYAN NORSWORTHY, 13 Plaintiff, 14 15 No. CIV S-09-2989-LKK-CMK-P vs. FINDINGS AND RECOMMENDATIONS RIVERS, 16 Defendant. 17 / 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 19 U.S.C. § 1983. Pending before the court are plaintiff’s motions for injunctive relief (Docs. 2, 12, 20 15, and 19). 21 In his motions, plaintiff seeks an order removing him from state custody and 22 transferring him to protective federal custody. Plaintiff claims in his motion and underlying civil 23 rights action that defendant Rivers retaliated against him by allowing confidential information 24 identifying him as a prison informant to be released to the general population. According to 25 plaintiff, this release of information about him has resulted in risks to his safety should he remain 26 in state custody. 1 Dockets.Justia.com 1 The legal principles applicable to requests for injunctive relief, such as a 2 temporary restraining order or preliminary injunction, are well established. To prevail, the 3 moving party must show that irreparable injury is likely in the absence of an injunction. See 4 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. 5 Def. Council, Inc., 129 S.Ct. 365 (1008)). To the extent prior Ninth Circuit cases suggest a lesser 6 standard by focusing on the mere possibility of irreparable harm, such cases are “no longer 7 controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 8 1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is 9 likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an 10 injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public 11 interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374). 12 Reviewing the file as a whole, including documents attached to plaintiff’s 13 amended complaint, the court finds that plaintiff has not demonstrated that irreparable injury is 14 likely absent an injunction. Specifically, plaintiff’s documents reflect that he has been 15 transferred from prison to prison and/or has been placed in protective housing segregated from 16 the general population and that these actions have been taken for his safety. Thus, while there 17 may be a possibility of irreparable injury, such injury does not appear likely given the measures 18 plaintiff admits are being taken to respond to his safety concerns. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 2 1 2 Based on the foregoing, the undersigned recommends that plaintiff’s motions for injunctive relief (Docs. 2, 12, 15, and 19) be denied. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court. Responses to objections shall be filed within 14 days after service of 7 objections. Failure to file objections within the specified time may waive the right to appeal. 8 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 12 DATED: July 27, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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