Asberry v. Cate et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 9/13/11 VACATING 34 FINDINGS AND RECOMMENDATIONS; Defendants shall file a response to 32 Motion for Preliminary Injunction filed by Tony Asberry within 21 days after the filing date of this or der; Plaintiff may, within 14 days after service of defendants' response, file a reply. Plaintiff's 36 Motion to Proceed IFP is DENIED without prejudice to its refiling, in completed form, in a new action. Plaintiff's 37 and 38 inquiries are also DENIED, for the reasons set forth. (Meuleman, A) Modified on 9/14/2011 (Meuleman, A).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TONY ASBERRY,
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Plaintiff,
No. 2:09-cv-01494 MCE KJN P
vs.
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MATTHEW CATE, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner at California State Prison-Sacramento (“CSP-SAC”),
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proceeding without counsel in this action filed against defendant correctional officers Phelps and
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Hernandez. The complaint asserts that defendant Phelps violated plaintiff’s constitutional rights
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to be free from racial discrimination, and from punishment that is cruel, arbitrary or capricious;
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the complaint also asserts a potentially cognizable due process claim against defendant
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Hernandez based on the alleged deprivation of plaintiff’s property. Defendants have been served
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and have filed a limited motion to dismiss one of plaintiff’s claims against defendant Phelps.
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Presently pending is plaintiff’s second motion for preliminary injunctive relief,
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filed August 2, 2011. (Dkt. No. 32.) (Plaintiff’s first motion, which alleged numerous
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“reprisals” by unnamed staff, was denied by order filed July 28, 2011. (Dkt. No. 31.)) The
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instant motion broadly asserts that plaintiff is at risk of being killed or seriously injured by other
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inmates as a result of being set up by CSP-SAC staff members. Plaintiff identifies several CSP-
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SAC staff members, but asserts that defendant Phelps is the most harassing and threatening
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toward plaintiff. (See Dkt. No. 32 at 8, 12-14.) On August 24, 2011, this court issued Findings
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and Recommendations, recommending that the motion be denied because it “fails to identify a
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specific harm that can or must be addressed by preliminary relief, or that is required in order to
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preserve the matter for a decision on the merits.” (Dkt. No. 34 at 4.) The court further noted,
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based on plaintiff’s statement that he intended to file a new civil rights action against several
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CSP-SAC members, that “[t]he majority of plaintiff’s claims set forth in the instant motion will
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not be heard on the merits in the underlying action. Rather, it appears that these claims, and the
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staff members against whom they are made, may be addressed in plaintiff’s anticipated future
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action(s).” (Id.) However, the court did note that defendant “Phelps, like all CSP-SAC staff
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members, is required to meet constitutional standards in his employment, which includes
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protecting plaintiff from harm.” (Id.)
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In his objections (Dkt. No. 35), plaintiff states, “I’m not asking for this court to do
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anything except stopping CSP-SAC staff officials from killing me.” (Dkt. No. 35 at 5; reiterated
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throughout plaintiff’s objections). Given the alleged seriousness of plaintiff’s repeated
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assertions, the court will vacate its findings and recommendations, and require that defendants
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file a response to plaintiff’s pending motion for preliminary injunctive relief.
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As a separate matter, the court notes that plaintiff has filed a new motion to
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proceed in forma pauperis (Dkt. No. 36), and inquired about the appropriateness of filing a new
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complaint (Dkt. Nos. 37, 38). These matters are not properly pursued in the instant case. If
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plaintiff wishes to pursue these matters, he must file a new action.
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Finally, the court notes that plaintiff has not yet filed an opposition to defendants’
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pending motion to dismiss. The court warned plaintiff, on August 24, 2011, that “[a]bsent a
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timely response to th[e] order to show cause [Dkt. No. 33] and the filing of an opposition to the
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motion to dismiss, the court will grant defendants’ motion.” (Dkt. No. 34 at 5.) Plaintiff was
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given thirty days within which to file his opposition, which ends on Friday, September 23, 2011.
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For the foregoing reasons, IT IS HEREBY ORDERED that:
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1. The Findings and Recommendations filed August 24, 2011 (Dkt. No. 34), are
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vacated pending further briefing on the motion.
2. Defendants shall file a response to plaintiff’s motion for preliminary injunctive
relief (Dkt. No. 32), within 21 days after the filing date of this order.
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3. Plaintiff may, within 14 days after service of defendants’ response, file a reply.
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4. Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 36) is denied without
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prejudice to its refiling, in completed form, in a new action. Plaintiff’s inquiries regarding the
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filing of a new complaint (Dkt. No. 37, 38) are also denied, for the reasons set forth above.
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DATED: September 13, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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