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Armstrong v. Scribner

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 30, 2008

JERRY L. ARMSTRONG, PLAINTIFF,
v.
L. E. SCRIBNER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [doc. #34]

In his 42 U.S.C. § complaint, plaintiff Jerry Armstrong, who is proceeding without counsel, alleges his right of access to the courts has been violated. Plaintiff moves for a preliminary injunction which would prevent the California Department of Corrections from transferring him from Calipatria to another prison in retaliation for the present lawsuit. He contends Facility Captain A. Miller recommended plaintiff's transfer from Calipatria State Prison to a prison camp for which he is ineligible.

This motion, along with several others, was referred to the assigned magistrate judge for a Report and Recommendation ("Report") under 28 U.S.C. § 363. Magistrate Judge Brooks filed his Report on September 28, 2007 [doc. #49] which dealt with all the pending motions. Plaintiff filed timely objections [doc. #50] to most of the recommendations but not to the recommendation that the motion for preliminary injunction be denied. Accordingly, the Court will address the preliminary injunction motion in this Order and will enter a separate order with respect to the remaining motions discussed in the Report.

The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna- , 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003).

Here, plaintiff has not objected to the recommendation that his preliminary injunction be denied. As the Report noted, the motion for preliminary injunction must be denied because it is directed to an entity and to individuals who are not parties to this action. Moreover, plaintiff cannot show that any prison transfer occurred in retaliation for this action. Finally, the Report states that plaintiff failed to demonstrate irreparable injury if a transfer to another institution occurred. Having reviewed the motion and Report, the Court concurs with the recommendation to deny the motion for preliminary injunction.

Based on the foregoing, plaintiff's motion for preliminary injunction is DENIED.

IT IS SO ORDERED.

20080130

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