Norsworthy v. Cate, et al

Filing 88

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 02/28/13 recommending that plaintiff's motion for injunctive relief 63 be denied. MOTION for INJUNCTIVE RELIEF 63 referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)

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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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Plaintiff,

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

vs.

FINDINGS AND RECOMMENDATIONS

RIVERS,
Defendant.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s motion for injunctive relief (Doc. 63).
The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

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Def. Council, Inc., 129 S.Ct. 365 (1008)). To the extent prior Ninth Circuit cases suggest a lesser

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standard by focusing on the mere possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is
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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an

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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374).

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Plaintiff complains that he has been told by prison officials that his “property file

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is now missing.” Plaintiff seeks an order directing prison officials to “secure all plaintiff’s files.”

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At the outset, plaintiff’s motion is defective because he does not seek injunctive relief as against

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a party to the action. This court is unable to issue an order against individuals who are not

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parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

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100, 112 (1969). Additionally, plaintiff has not demonstrated the likelihood of irreparable injury

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which would result from not having access to his files. While he may suffer some kind of injury

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in the future, such as a denial of access to the courts, such injury is speculative at this point and,

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in any event, not irreparable.

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Based on the foregoing, the undersigned recommends that plaintiff’s motion for
injunctive relief (Doc. 63) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 28, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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