Moore v. McDonald

Filing 49

ORDER signed by Magistrate Judge Kendall J. Newman on 6/1/2012 ORDERING that plaintiff's 45 motion for protective order is DENIED without prejudice. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO K. MOORE,

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Plaintiff,

No. 2: 10-cv-3457 KJM KJN P

vs.
MICHAEL McDONALD, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. The only defendant is Michael McDonald, the Warden at High

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Desert State Prison (“HDSP”). Plaintiff alleges that he has not received adequate medical care

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for his diabetes, including proper doses of insulin and a proper diabetic diet.

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On April 20, 2012 plaintiff filed a motion for a protective order. In this motion,

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plaintiff alleges that he is being harassed because of the instant action and because he is a witness

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in a case involving the death of inmate Ivory Martin. Most of the allegations of harassment

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alleged in the motion for protective order appear to concern plaintiff’s status as a witness in the

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Martin case.

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On April 18, 2012, plaintiff filed a letter with the court also alleging harassment
based on the instant action and his status as a witness in the Martin case.
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Although the Ninth Circuit has not addressed the issue directly, other circuits have

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repeatedly held that a plaintiff seeking injunctive relief must show “[a] relationship between the

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injury claimed in the party’s motion and the conduct asserted in the complaint.” Devose v.

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Herrington, 42 F.3d 470, 471 (8th Cir. 1994); accord Little v. Jones, 607 F.3d 1245, 1250–51

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(10th Cir. 2010); Colvin v. Caruso, 605 F.3d 282, 299–300 (6th Cir. 2010);

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Plaintiff’s claim that he is being harassed based on his status as a witness in the

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Martin case is unrelated to the claims raised in the instant action. For that reason, plaintiff’s

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claims alleging harassment based on his status as a witness in the Martin case should be raised in

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a separate civil rights action.

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Plaintiff’s claim that he is being harassed in retaliation for pursuing this action

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may be raised in a motion for injunctive relief filed in the instant action. However, as plead in

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his April 18, 2012 letter and April 20, 2012 motion for protective order, plaintiff’s claims of

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retaliation for pursuing this action and harassment based on his status as a witness in the Martin

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case cannot be distinguished. For this reason, plaintiff’s motion for protective order is dismissed

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without prejudice to plaintiff filing a motion for injunctive relief raising claims alleging

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retaliation for pursuing the instant action only. Plaintiff’s claims of retaliation for pursuing the

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instant action must be well supported.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s April 20, 2012 motion

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for protective order (Dkt. No. 45) is denied without prejudice.

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DATED: June 1, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mo3457.po

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