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Norsworthy v. Rivers

United States District Court, E.D. California

October 10, 2014

JEFFREY BRYAN NORSWORTHY, Plaintiff,
v.
RIVERS, Defendant.

AMENDED FINDINGS AND RECOMMENDATIONS

CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion for summary judgment (Doc. 84).

This matter is before the undersigned after the then-assigned District Judge's order directing as follows: "The matter will be referred back to the magistrate judge with instructions to conduct an in camera review of all documents associated with the CMF/ISU inquiry and the OIA investigation referred to in the CDC Form 128-B dated February 24, 2009, and attached as Exhibit B to plaintiff's objections (ECF No. 113) and to take such further steps as may be appropriate following completion of said in camera review." As to the identified documents, the District Judge stated:

With his objections, plaintiff has submitted a CDC Form 128-B dated February 24, 2009. Ex. B. To Pls. Objs. (ECF No. 113). The 128-B, signed by Correctional Lieutenant J. Pulsipher, states that on February 5, 2009, plaintiff was placed in administrative segregation based on safety concerns and that an inquiry revealed that plaintiff's "safety is at serious risk due to the discloser [sic] of a confidential memorandum which listed Norsworthy as a confidential source." Id. at 15. The 128-B also states that "a review of the allegations has resulted in the initiation of an investigation by the Office of Internal Affairs. Due to the nature of the incident as well as the allegations of possible staff misconduct involving California Medical Facility (CMF) Staff it is necessary to transfer Inmate Norsworthy to a Sensitive Needs Yard (SNY)." Id . (emphasis in District Judge's order). In his objections, plaintiff states that he requested the files of the OIA investigation during discovery but the request was denied.
Evidence of how the confidential paperwork got to inmate Sweeney is apparently absent from this record. Plaintiff's position is that an inference should be drawn, from various facts, that defendant Rivers was the source of the disclosure of the confidential information. Defendant Rivers denies, inter alia, that she was the source of this information or that she had any knowledge that plaintiff was a confidential informant. See Ex. A to Pls. Objs., Declaration of Barbara Rivers (ECF No. 113) at 13.
The information contained in the 128-B suggests that the inquiry by the Internal Services Unit (ISU) at CMF led to an investigation by the California Department of Corrections and Rehabilitation (CDCR's) Office of Internal Affairs (OIA) into the circumstances of the disclosure and to possible staff misconduct in connection therewith. Plaintiff previously sought, inter alia, "the reports and notes generated by ISU/OIA during the investigation of Rivers, about Rivers and the results thereof" as well as defendant Rivers' personnel records. Defendants objected to the request as overbroad, vague, and on the ground that the documents contained official and private information. See Order filed March 29, 2013 (ECF No. 90) at 5-6. Plaintiff's motion to compel production of this information was denied. See id. While plaintiff did not timely seek reconsideration of that order, he now objects vigorously to the denial of the discovery he requested.

The February 24, 2009, 128-B document, reflecting Correctional Lieutenant Pulsipher's recommendation that plaintiff be transferred to a Sensitive Needs Yard at another institution, indicates the following sequence of events:

First A confidential memorandum listing plaintiff as a confidential source was disclosed.
Second Plaintiff was placed in Administrative Segregation on February 5, 2009, "based on [plaintiff's] personal safety concerns."
Third An inquiry was completed which revealed that plaintiff's safety was at serious risk in the General Population due to the disclosure of the confidential memorandum.
Fourth An OIA investigation was initiated based on "a review" of the nature of the incident, i.e., the disclosure of the confidential memorandum, as well as "the allegations of possible staff misconduct."
Fifth It was determined by the CMF Internal Services Unit that plaintiff's presence at CMF was "not required for the [OIA] investigation."

The order directing an in camera review states that the OIA investigation was prompted by "the inquiry" conducted by ISU and instructs the undersigned to review all documents associated with "the CMF/ISU inquiry" and "the OIA investigation" referred to in the 128-B. As indicated by the sequence of events outlined above, the OIA investigation was initiated following "a review" by an unspecified person or prison administrative body of the nature of the incident and plaintiff's allegations. The 128-B only references the ISU in connection with the determination that plaintiff's continued presence at CMF was not necessary for the OIA investigation. Additionally, the 128-B does not indicate that any factor beyond the mere fact of the disclosure and plaintiff's allegations of misconduct prompted Correctional Lieutenant Pulsipher's transfer recommendation. Therefore, with respect to an ISU inquiry referenced in the 128-B, there are no documents to review.

The order also instructs the undersigned to review all documents associated with the OIA investigation. As the order indicates, plaintiff's motion to compel production of these documents was denied and plaintiff did not seek reconsideration. While the order notes that plaintiff "now objects vigorously, " the prior order denying plaintiff's motion to compel was not set aside nor was discovery re-opened. Therefore, the undersigned has reviewed the entire record for any and all documents relating to the OIA investigation referenced in the 128-B. These documents are as follows:

• September 3, 2009, letter from Deavonne Long with the Division of Adult Institutions stating that the incident was referred to OIA in April 2009 "and the outcome is still pending." (Ex. to ...

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