McCoy v. Kelso, et al.

Filing 144

ORDER adopting FINDINGS AND RECOMMENDATIONS, denying Plaintiff's Motion for Preliminary Injunction and denying Plaintiff's Motion for Reconsideration 133 , 134 , 135 signed by District Judge Anthony W. Ishii on 7/11/2019. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH RAYMOND MCCOY,

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Plaintiff,
v.
STRONACH, et al.,
Defendants.

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Case No.: 1:12-cv-000983-AWI-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION,
AND DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION
[ECF Nos. 133, 134, 135]

Plaintiff Joseph Raymond McCoy is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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On May 16, 2019, the Magistrate Judge issued Findings and Recommendations recommending

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that Plaintiff’s motion for a preliminary injunction be denied. The Findings and Recommendation was

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served on Plaintiff and contained notice that objections were to be filed within fourteen days.

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On May 22, 2019, Plaintiff filed a motion for reconsideration of the May 16, 2019, Findings
and Recommendations.

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On June 5, 2019, Plaintiff filed objections to the Findings and Recommendation.

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In his motion for reconsideration, Plaintiff argues that the Magistrate Judge erred by issuing

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the Findings and Recommendations without a response by Defendants pursuant to Local Rule 230(l).

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Local Rule 230(l) provides, in pertinent part, that an opposition to the granting of a motion shall be

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served and filed by the responding party not more than twenty-one (21) days after the date of service
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of the motion. If the responding party has no opposition, then he shall serve and file a statement to

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that effect. Local Rule 230(l). Here, Plaintiff has failed to demonstrate any prejudice as a result of the

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failure to await an opposition or statement of non-opposition by Defendants. Nor has Plaintiff

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presented any viable argument that an opposition or statement of non-opposition would have changed

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the analysis set forth in the May 16, 2019 Findings and Recommendations. Rather, the Magistrate

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Judge recommended that Plaintiff’s motion for preliminary injunction failed as a matter of law.

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Accordingly, Plaintiff’s motion for reconsideration will be denied.
In recommending the denial of Plaintiff’s motion for preliminary injunction, the Magistrate

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Judge determined that the Court lacked jurisdiction over Shu Sherman who is not a Defendant in this

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action. In his objections, Plaintiff contends that Stu Sherman is a Defendant in this action because he

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is the successor of former Warden Ken Clark. Although Plaintiff may have named Ken Clark in the

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original and amended complaints, this action is not proceeding against Ken Clark as he was dismissed

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from the action on March 21, 2014, when the Court ordered that this action proceed against

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Defendants Stronach, Gonzales, LeMay, Beltran, Fisher, Snell and Tann. Thus, Ken Clark has never

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been served with process or made an appearance in this action.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections, the

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Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Findings and Recommendation filed on May 16, 2019 (Doc. No. 134) is adopted in full;

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2.

Plaintiff’s motion for a preliminary injunction (Doc. No. 133) is denied; and

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3.

Plaintiff’s motion for reconsideration (Doc. No. 135) is denied.

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IT IS SO ORDERED.

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Dated: July 11, 2019

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SENIOR DISTRICT JUDGE

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