Norsworthy v. Cate, et al

Filing 116

ORDER signed by Judge Lawrence K. Karlton on 4/18/14 NOT ADOPTING 112 Findings and Recommendations at this time; and this matter is REFERRED BACK to Judge Craig M. Kellison with instructions to conduct an in camera review of all documents associate d with the CMF/ISU inquiry and the OIA investigation referred to in the CDC Form 128-B dated 2/24/09 and attached as Exhibit B to plaintiff's objections 113 and to take such further steps as may be appropriate following completion of said in camera review. (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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JEFFREY BRYAN NORSWORTHY,

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No. 2:09-CV-2989-LKK-CMK-P

Plaintiff,

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v.

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RIVERS,

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ORDER

Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern

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District of California local rules.

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On March 13, 2014, the magistrate judge filed findings and recommendations herein

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. Plaintiff has timely filed objections to the findings and recommendations

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and defendant has filed a response to plaintiff’s objections.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this

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court has conducted a de novo review of this case. This action proceeds on plaintiff’s claims that

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defendant Rivers violated plaintiff’s constitutional rights by intentionally releasing documents to

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the general inmate population identifying plaintiff as a confidential informant. Plaintiff claims

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that defendant Rivers was retaliating against plaintiff, and that her conduct constituted deliberate
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indifference to his safety. The matter is before the court on defendant’s motion for summary

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judgment, which the magistrate judge recommends be granted.

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It appears undisputed that in late 2008 or 2009, “confidential paperwork” identifying

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plaintiff as a prison informant was received by inmate Leo Self at California Medical Facility

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(CMF). According to inmate Self’s declaration, the confidential paperwork was sent to him by

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inmate Brian Sweeney “with further instructions that inmate Norsworthy was to be killed.” Ex.

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C to Pls. Objs., Declaration of Leo Self (ECF No. 113) at 20. Inmate Sweeney gave the

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paperwork, in an envelope, to inmate Tyvonne Joseph as inmate Joseph was being released from

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administrative segregation, and asked inmate Joseph to “take the envelope to a white inmate in

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the general population.” Ex. C to Pls. Objs., Declaration of Tyvonne Joseph, filed March 21,

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2014 (ECF No. 113) at ¶ 3. Inmate Self avers that “secretly, after receiving the papers the court

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will find via ISU/OIA records, I told inmate Norsworthy to seek protective custody quickly, and,

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then, I informed staff of the plot to kill Norsworthy and about the existence of the paperwork

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within the General population.” Self Decl. (ECF No. 113) at 21.

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With his objections, plaintiff has submitted a CDC Form 128-B dated February 24, 2009.

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Ex. B to Pls. Objs. (ECF No. 113). The 128-B, signed by Correctional Lieutenant J. Pulsipher,

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states that on February 5, 2009, plaintiff was placed in administrative segregation based on safety

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concerns and that an inquiry revealed that plaintiff’s “safety is at serious risk in the Inmate

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General Population due to the disloser [sic] of a confidential memorandum which listed

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Norsworthy as a confidential source.” Id. at 15. The 128-B also states that “a review of the

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allegations has resulted in the initiation of an investigation by the Office of Internal Affairs. Due

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to the nature of the incident as well as the allegations of possible staff misconduct involving

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California Medical Facility (CMF) Staff it is necessary to transfer Inmate Norsworthy to a

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Sensitive Needs Yard (SNY).” Id. (emphasis added). In his objections, plaintiff states that he

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requested the files of the OIA investigation during discovery but the request was denied.

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Evidence of how the confidential paperwork got to inmate Sweeney is apparently absent

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from this record. Plaintiff’s position is that an inference should be drawn, from various facts, that

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defendant Rivers was the source of the disclosure of the confidential information. Defendant
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Rivers denies, inter alia, that she was the source of this information or that she had any

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knowledge that plaintiff was a confidential informant. See Ex. A to Pls. Objs., Declaration of

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Barbara Rivers (ECF No. 113) at 13.

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The information contained in the 128-B suggests that the inquiry by the Internal Services

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Unit (ISU) at CMF led to an investigation by the California Department of Corrections and

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Rehabilitation (CDCR)’s Office of Internal Affairs (OIA) into the circumstances of the disclosure

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and to possible staff misconduct in connection therewith. Plaintiff previously sought, inter alia,

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“the reports and notes generated by ISU/OIA during the investigation of Rivers, about Rivers and

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the results thereof” as well as defendant Rivers’ personnel records.1 Defendants objected to the

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request as overbroad, vague, and on the ground that the documents contained official and private

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information. See Order filed March 29, 2013 (ECF No. 90) at 5-6. Plaintiff’s motion to compel

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production of this information was denied. See id. While plaintiff did not timely seek

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reconsideration of that order, he now objects vigorously to the denial of the discovery he

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requested.

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Good cause appearing, the court declines to adopt the findings and recommendations at

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this time. The matter will be referred back to the magistrate judge with instructions to conduct an

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in camera review of all documents associated with the CMF/ISU inquiry and the OIA

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investigation referred to in the CDC Form 128-B dated February 24, 2009 and attached as Exhibit

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B to plaintiff’s objections (ECF No. 113) and to take such further steps as may be appropriate

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following completion of said in camera review.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations filed March 13, 2014, are not adopted

at this time; and

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This matter is referred back to the magistrate judge with instructions to

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conduct an in camera review of all documents associated with the CMF/ISU inquiry and the OIA

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Defendant Rivers avers that she worked as a correctional officer at CMF until December 2009, and that she
currently works at the California Department of Public Health. Ex. A to Pls. Objs., Rivers Decl. at ¶ 1. In his
objections, plaintiff asserts, without citation to evidence, that she resigned “all of a sudden” following an
investigation. Pls. Objs. (ECF No. 113) at 3.

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investigation referred to in the CDC Form 128-B dated February 24, 2009 and attached as Exhibit

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B to plaintiff’s objections (ECF No. 113) and to take such further steps as may be appropriate

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following completion of said in camera review.

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DATED: April 18, 2014.

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