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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LEE BARRIOS, 12 13 14 15 No. 2:17-cv-0415 KJM CKD P Plaintiff, v. FINDINGS AND RECOMMENDATIONS THOMAS FERRARA, et al., Defendants. 16 17 Plaintiff is pro se litigant currently confined to the Atascadero State Hospital. He is 18 proceeding with claims arising under the Eighth Amendment against two defendants: Ferrara and 19 Lewis. Plaintiff’s claim against defendant Ferrara, the Solano County Sheriff, is a claim for 20 injunctive relief. In his complaint, plaintiff seeks immediate relief for migraine headaches. 21 22 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. 23 Defendant Ferrara moves to dismiss plaintiff’s claim for injunctive relief as moot. When 24 a prisoner is transferred to a different facility claims for injunctive relief generally become moot. 25 Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001). There does not appear to be a reason to 26 depart from that rule here as it is not clear when or if plaintiff will ever return to the Solano 27 County jail, if so for how long, if he will still be suffering from migraine headaches when he 28 returns, and/or whether the treatment prescribed, or lack thereof, will be the same when he 1 1 returns. If, during the pendency of this litigation against defendant Lewis, plaintiff is returned to 2 the Solano County Jail plaintiff is free to seek leave to amend his pleadings to have his claim for 3 injunctive relief reinstated. 4 In accordance with the above, IT IS HEREBY RECOMMENDED that: 5 1. Defendant Ferrara’s motion to dismiss (ECF No. 14) be granted; 6 2. Plaintiff’s claim for injunctive relief against defendant Ferrara be dismissed; and 7 3. Defendant Ferrara be dismissed from this action. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 objections shall be served and filed within fourteen days after service of the objections. The 14 parties are advised that failure to file objections within the specified time may waive the right to 15 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: October 30, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 1 barr0415.inj 23 24 25 26 27 28 2

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