Barrios v. Ferrara et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/30/17 recommending that defendant Ferrara's motion to dismiss 14 be granted. Plaintiff's claim for injunctive relief against defendant Ferrara be dismissed; and defendant Ferrara be dismissed from this action. Motion to Dismiss 14 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN LEE BARRIOS,

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No. 2:17-cv-0415 KJM CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

THOMAS FERRARA, et al.,
Defendants.

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Plaintiff is pro se litigant currently confined to the Atascadero State Hospital. He is

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proceeding with claims arising under the Eighth Amendment against two defendants: Ferrara and

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Lewis. Plaintiff’s claim against defendant Ferrara, the Solano County Sheriff, is a claim for

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injunctive relief. In his complaint, plaintiff seeks immediate relief for migraine headaches.

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When plaintiff filed his complaint he was housed at the Solano County Jail. In May of
this year, plaintiff informed the court that he has been transferred to Atascadero.

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Defendant Ferrara moves to dismiss plaintiff’s claim for injunctive relief as moot. When

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a prisoner is transferred to a different facility claims for injunctive relief generally become moot.

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Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001). There does not appear to be a reason to

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depart from that rule here as it is not clear when or if plaintiff will ever return to the Solano

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County jail, if so for how long, if he will still be suffering from migraine headaches when he

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returns, and/or whether the treatment prescribed, or lack thereof, will be the same when he
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returns. If, during the pendency of this litigation against defendant Lewis, plaintiff is returned to

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the Solano County Jail plaintiff is free to seek leave to amend his pleadings to have his claim for

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injunctive relief reinstated.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Defendant Ferrara’s motion to dismiss (ECF No. 14) be granted;

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2. Plaintiff’s claim for injunctive relief against defendant Ferrara be dismissed; and

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3. Defendant Ferrara be dismissed from this action.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 30, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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