(PC) O'Connor v. J. Lizarraga

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GLENN O’CONNOR, No. 2: 19-cv-0658 KJM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for emergency injunctive 20 relief. (ECF No. 10.) For the reasons stated herein, the undersigned recommends that this motion 21 be denied. 22 This action proceeds on the first amended complaint against defendants Brockenborough, 23 Boyd, Holmes, Lizarraga, Manning and Weiss. (ECF No. 13.) All defendants are located at 24 Mule Creek State Prison (“MCSP”). Plaintiff alleges that he suffers from sleep apnea. (Id. at 9.) 25 Plaintiff alleges that he uses a CPAP machine for his sleep apnea. (Id. at 10.) Plaintiff alleges 26 that defendants violated his Eighth Amendment right to adequate medical care by failing to 27 provide him with continuous power for his CPAP machine. (Id.) 28 //// 1 In the pending motion for injunctive relief, plaintiff requests that the court order 2 defendants to provide him with continuous power for his CPAP machine. (ECF No. 10.) 3 Plaintiff filed this motion when he was housed at MCSP. (Id.) 4 On July 3, 2019, the undersigned recommended that plaintiff’s motion for injunctive relief 5 be denied because it was not likely that plaintiff would suffer irreparable injury if the court did 6 not grant his request for injunctive relief. (ECF No. 23.) On July 17, 2019, plaintiff filed 7 objections to the findings and recommendations. (ECF No. 25). On August 27, 2019, the 8 Honorable Kimberly J. Mueller referred this matter back to the undersigned for further 9 consideration. (ECF No. 28.) 10 On August 9, 2019, plaintiff filed a notice of change of address indicating that he is now 11 housed at the California Health Care Facility (“CHCF”) in Stockton, California. (ECF No. 26.) 12 When an inmate seeks injunctive or declaratory relief concerning the prison where he is 13 incarcerated, his claims for such relief become moot when he is no longer subjected to those 14 conditions. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Dilley v. Gunn, 64 F.3d 1365, 15 1368-69 (9th Cir. 1995). Accordingly, plaintiff’s motion for injunctive relief should be denied as 16 moot. 17 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for injunctive 18 relief (ECF No. 10) be denied as moot. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 objections shall be filed and served within fourteen days after service of the objections. The 25 parties are advised that failure to file objections within the specified time may waive the right to 26 //// 27 //// 28 //// 1 | appeal the District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 2 || Dated: October 31, 2019 ; Fens Arn 4 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE Oconn658.pi(2) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28