Asberry v. Cate et al

Filing 56

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 07/20/12 recommending that plaintiff's motion for a preliminary injunction 50 be denied. MOTION for PRELIMINARY INJUNCTION 50 referred to Judge Kimberly J. Mueller. Objections due within 21 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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TONY ASBERRY,

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Plaintiff,

No. 2: 11-cv-2462 KJM KJN P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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FINDINGS & RECOMMENDATIONS
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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. Pending before the court is plaintiff’s motion for injunctive relief

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filed June 11, 2012. For the following reasons, this motion should be denied.

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When plaintiff filed this action on September 16, 2011, he was housed at

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California State Prison-Sacramento (“CSP-Sac”). This action is proceeding on the third

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amended complaint filed June 11, 2012. Plaintiff complains of conditions at CSP-Sac. All

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defendants are located at CSP-Sac.

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On April 20, 2012, plaintiff filed a notice of change of address indicating that he

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is now incarcerated at the R. J. Donovan Correctional Facility in San Diego, California. In the

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pending motion for injunctive relief, plaintiff requests that he be provided with medical care at

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the R. J. Donovan Correctional Facility.
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Plaintiff seeks injunctive relief against individuals who are not named as

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defendants in this action, i.e., prison officials at the R. J. Donovan Correctional Facility. This

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court is unable to issue an order against individuals who are not parties to a suit pending before

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it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969).1

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for a
preliminary injunction (Dkt. No. 50) 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 twenty-

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

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: July 20, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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as2462.pi

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If plaintiff seeks relief against prison officials at the R. J. Donovan Correctional
Facility, he may file a civil rights action in the United States District Court for the Southern
District of California.
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