Birrell, et al., v. Fox, et al.,

Filing 84

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/21/2023 GRANTING defendant 21 days to file a motion to dismiss plaintiff's remaining claim as moot. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID WESLEY BIRRELL, et al.,

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No. 2:16-cv-1818 DJC CKD P

Plaintiffs,
v.

ORDER

ROBERT W. FOX, et al.,

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Defendants.

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Plaintiff Alford, the only remaining plaintiff in this action, is proceeding on a claim for

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injunctive relief under the Eighth Amendment for exposure to harmful substances, including

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asbestos, against defendant Fox in his official capacity as the Warden of the California Medical

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Facility. Defendant Fox has answered. Discovery commenced some time ago but was never

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completed.

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A review of the court’s record reveals that defendant Alford no longer resides at the

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California Medical facility. This being the case, defendant will be granted 21 days within which

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to file a motion to dismiss Alford’s remaining claim as moot. See Andrews v. Cervantes, 493

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F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner's claims for injunctive relief generally become moot

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upon transfer) citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding

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claims for injunctive relief “relating to [a prison's] policies are moot” when the prisoner has been

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moved and “he has demonstrated no reasonable expectation of returning to [the prison]”). If
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defendant does not file a motion to dismiss, the court will set a schedule for discovery and the

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filing of pretrial motions.

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Accordingly, IT IS HEREBY ORDERED that defendant is granted 21 days within which

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to file a motion to dismiss plaintiff’s remaining claim as moot.

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Dated: June 21, 2023
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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birr1818.mtdm

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