(PC) O'Connor v. CDCR et al

Filing 45

ORDER signed by Chief District Judge Kimberly J. Mueller on 9/7/2020 ADOPTING in full the 39 40 findings and recommendations; DENYING as moot Plaintiff's 10 motion for injunctive relief; GRANTING Defendants' 30 motion to dismiss; and Defendants Brockenborough, Boyd, Holmes, Lizarraga, Manning and Weiss shall file a response to plaintiff's Eighth Amendment claim for damages raised in the amended complaint within twenty-one days of service of this order.(Becknal, R)

Case 2:19-cv-00658-KJM-KJN Document 45 Filed 09/08/20 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GLENN O’CONNOR,

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No. 2:19-cv-0658 KJM KJN P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On November 1, 2019, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. (ECF Nos. 39, 40.)

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Plaintiff has filed objections to the findings and recommendations. (ECF No. 41.)

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Plaintiff asserts prison officials moved him between correctional facilities in a deliberate

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attempt to moot his claim for injunctive relief. Obj. at 5. He faults the magistrate judge for

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failing to address the possibility that his need for an injunction mandating continuous electricity

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for his CPAP machine is state-wide, as opposed to specific to Mule Creek State Prison. Plaintiff
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Case 2:19-cv-00658-KJM-KJN Document 45 Filed 09/08/20 Page 2 of 2
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has made out only a possibility, as opposed to a “reasonable expectation or demonstrated

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probability” that he will suffer the same deprivation of electricity for his CPAP elsewhere, let

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alone be moved back to Mule Creek. Murphy v. Hunt, 455 U.S. 478, 482 (1982).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed November 1, 2019 (ECF Nos. 39, 40) are

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adopted in full;

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2. Plaintiff’s motion for injunctive relief (ECF No. 10) is denied as moot;

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3. Defendants’ motion to dismiss (ECF No. 30) is granted; and

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4. Defendants Brockenborough, Boyd, Holmes, Lizarraga, Manning and Weiss shall file a

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response to plaintiff’s Eighth Amendment claim for damages raised in the amended complaint within

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twenty-one days of service of this order.

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DATED: September 7, 2020.

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