(PC) Birrell v. Fox ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WESLEY BIRRELL, et al., No. 2:16-cv-1818 DJC CKD P 12 Plaintiffs, 13 v. ORDER 14 ROBERT W. FOX, et al., 15 Defendants. 16 17 Plaintiff Alford, the only remaining plaintiff in this action, is proceeding on a claim for 18 injunctive relief under the Eighth Amendment for exposure to harmful substances, including 19 asbestos, against defendant Fox in his official capacity as the Warden of the California Medical 20 Facility. Defendant Fox has answered. Discovery commenced some time ago but was never 21 completed. 22 A review of the court’s record reveals that defendant Alford no longer resides at the 23 California Medical facility. This being the case, defendant will be granted 21 days within which 24 to file a motion to dismiss Alford’s remaining claim as moot. See Andrews v. Cervantes, 493 25 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner's claims for injunctive relief generally become moot 26 upon transfer) citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding 27 claims for injunctive relief “relating to [a prison's] policies are moot” when the prisoner has been 28 moved and “he has demonstrated no reasonable expectation of returning to [the prison]”). If 1 | defendant does not file a motion to dismiss, the court will set a schedule for discovery and the 2 | filing of pretrial motions. 3 Accordingly, IT IS HEREBY ORDERED that defendant is granted 21 days within which 4 || to file a motion to dismiss plaintiff's remaining claim as moot. 5 | Dated: June 21, 2023 Card ft 4 by ae 6 CAROLYN K DELANEY? 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1 birr1818.mtdm 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28