(PC) Norsworthy v. Cate, et al, No. 2:2009cv02989 - Document 24 (E.D. Cal. 2010)

Court Description: ORDER signed by Senior Judge Lawrence K. Karlton on 8/30/2010 ORDERING the court declines to adopt the findings and recommendations filed July 28, 2010; The court nonetheless denies plaintiff's motions for a preliminary injunction, ECF Nos. 2, 12, 15, 19. Plaintiff is granted leave of sixty (60) days to file an amended complaint in which he adds a defendant (or defendants) who has the authority to alter the conditions of his employment.(Matson, R)
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(PC) Norsworthy v. Cate, et al Doc. 24 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY BRYAN NORSWORTHY, 12 Plaintiff, 13 14 No. CIV S-09-2989-LKK-CMK-P vs. ORDER RIVERS, 15 Defendant. 16 / 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern 19 District of California local rules. 20 On July 28, 2010, the Magistrate Judge filed findings and recommendations 21 herein which were served on the parties and which contained notice that the parties may file 22 objections within a specified time. Timely objections to the findings and recommendations have 23 been filed. 24 Plaintiff seeks a preliminary injunction of transfer from state custody to federal 25 custody. Plaintiff alleges, and provides documentary support, the he was a confidential 26 informant. He further alleges that a memorandum concerning his informant status was released to 1 Dockets.Justia.com 1 the general population of the prison. Plaintiff contends that correctional officers and other 2 inmates have threatened his life upon release of this memorandum. Defendant has not been 3 served with the complaint or the motions for a preliminary injunction. Accordingly, defendant 4 has not provided any response to motion for a preliminary injunction. 5 Further, the only defendant named in the instant complaint is Rivers, the prison 6 official who allegedly released the memorandum or allowed the memorandum to be released. She 7 does not appear to have authority to alter the conditions of plaintiff’s incarceration. 8 The Magistrate Judge filed findings and recommendations on July 28, 2010 9 recommending that this court deny plaintiff’s motions for a preliminary injunction because he 10 has not demonstrated that irreparable injury is likely. He reasoned that, “plaintiff’s documents 11 reflect that he has been transferred from prison to prison and/or has been placed in protective 12 housing segregated from the general population and that these actions have been taken for his 13 safety.” This court does not find that these indications in the record demonstrate that plaintiff is 14 not likely to suffer irreparable injury. Specifically, plaintiff claims that he experienced threats of 15 violence or violence at each prison from which he has been transferred. Moreover, the court 16 cannot determine whether his placement in administrative segregation is current or whether it 17 protects him from violence or threats of violence from correctional officers. Thus, the evidence 18 submitted along with plaintiff’s filings in this case demonstrate that transfer from prison to 19 prison has not protected him from violence and threats of violence. 20 Nonetheless, the court denies plaintiff’s motion because he has not sued a party 21 that the court has authority to enjoin. Rather, in order to obtain injunctive relief, plaintiff must 22 name a defendant (or defendants) who has authority to alter the conditions of his confinement, 23 such as the prison warden. Such a defendant must nonetheless meet the Ninth Circuit’s standard 24 for injunctive relief, which is that his “combined acts or omissions of the state officials 25 responsible for operating the state's penal system created living conditions that violate the” 26 constitution. Leer v. Murphy, 844 F.2d 626, 633 (9th Cir. 1988) While this analysis “undeniably 2 1 focuses on the duties and responsibilities of each of the individual defendants whose acts or 2 omissions are alleged to have caused the constitutional deprivation,” it nonetheless “is broader 3 and more generalized than when that same prisoner seeks damages for the harmful effects” of the 4 constitutional violation. Id. Accordingly, in order to demonstrate that he is entitled to injunctive 5 relief under § 1983, plaintiff must name a defendant who is responsible for policies or practices 6 that resulted in violations of plaintiff’s Constitutional rights.1 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. 9 The court declines to adopt the findings and recommendations filed July 28, 2010; 10 2. 11 The court nonetheless denies plaintiff’s motions for a preliminary injunction, ECF Nos. 2, 12, 15, 19. 12 3. Plaintiff is granted leave of sixty (60) days to file an amended complaint in 13 which he adds a defendant (or defendants) who has the authority to alter 14 the conditions of his employment. 15 DATED: August 30, 2010 16 17 18 19 20 21 22 23 24 25 26 1 The court notes that this order in no way alters the magistrate judge’s holding that plaintiff has stated a non-frivolous claim against defendant Rivers. Rather, it appears to the court that plaintiff may only seek monetary damages from Rivers. If plaintiff chooses to file an amended complaint, he is advised that he must name Rivers as well as a defendant with authority to alter the conditions of his confinement in order to maintain a claim against Rivers. 3