(PC) O'Connor v. CDCR et al
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
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:19-cv-0658 KJM KJN P
CALIFORNIA DEPARTMENT OF
REHABILITATION, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided
by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On November 1, 2019, the magistrate judge filed findings and recommendations, which
were served on all parties and which contained notice to all parties that any objections to the
findings and recommendations were to be filed within fourteen days. (ECF Nos. 39, 40.)
Plaintiff has filed objections to the findings and recommendations. (ECF No. 41.)
Plaintiff asserts prison officials moved him between correctional facilities in a deliberate
attempt to moot his claim for injunctive relief. Obj. at 5. He faults the magistrate judge for
failing to address the possibility that his need for an injunction mandating continuous electricity
for his CPAP machine is state-wide, as opposed to specific to Mule Creek State Prison. Plaintiff
Case 2:19-cv-00658-KJM-KJN Document 45 Filed 09/08/20 Page 2 of 2
has made out only a possibility, as opposed to a “reasonable expectation or demonstrated
probability” that he will suffer the same deprivation of electricity for his CPAP elsewhere, let
alone be moved back to Mule Creek. Murphy v. Hunt, 455 U.S. 478, 482 (1982).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
court has conducted a de novo review of this case. Having reviewed the file, the court finds the
findings and recommendations to be supported by the record and by the proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed November 1, 2019 (ECF Nos. 39, 40) are
adopted in full;
2. Plaintiff’s motion for injunctive relief (ECF No. 10) is denied as moot;
3. Defendants’ motion to dismiss (ECF No. 30) is granted; and
4. 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.
DATED: September 7, 2020.
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