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O'KEEFE v. BROWN, 2:11-cv-2659 KJM KJN P. (2014)

Court: District Court, E.D. California Number: infdco20141028k81 Visitors: 8
Filed: Oct. 23, 2014
Latest Update: Oct. 23, 2014
Summary: ORDER KENDALL J. NEWMAN, Magistrate Judge. Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. 1983. This action is proceeding on plaintiff's fourth amended complaint filed January 16, 2014. (ECF No. 113.) Plaintiff seeks injunctive and declaratory relief only. ( Id. ) Plaintiff was housed at California State Prison-Corcoran ("Corcoran") when he filed the fourth amended complaint. On January 29, 2014, the undersigned issued an eleven p
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ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's fourth amended complaint filed January 16, 2014. (ECF No. 113.) Plaintiff seeks injunctive and declaratory relief only. (Id.)

Plaintiff was housed at California State Prison-Corcoran ("Corcoran") when he filed the fourth amended complaint. On January 29, 2014, the undersigned issued an eleven page order screening the fourth amended complaint. (ECF No. 115.) The undersigned ordered service of the fourth amended complaint on defendants Belavich, Swift, Vasquez, Grawal, Ferguson and Salkowaltz as to plaintiff's individual claims that he is not receiving treatment for voyeurism and exhibitionism at Corcoran. (Id.)

On April 29, 2014, defendants filed a motion to dismiss the fourth amended complaint for failure to state a claim and for failure to exhaust administrative remedies. (ECF No. 135.)

On August 22, 2014, plaintiff filed a motion for leave to amend on grounds that he would soon be transferred to a different prison. (ECF No. 162.) On September 15, 2014, plaintiff filed a motion for a stay and for leave to file a fifth amended complaint. (ECF No. 165.) Plaintiff requests that this action be stayed because he will soon be transferred to a new prison. Plaintiff also requests leave to file an amended complaint based on conditions at the new prison.

On September 17, 2014, plaintiff filed a notice of change of address indicating that he has been transferred to the Correctional Training Facility ("CTF") in Soledad, California. (ECF No. 166.)

The resolution of this action has been delayed by plaintiff's transfers to different prisons. However, because plaintiff has been transferred to Soledad, his claims regarding conditions at Corcoran raised in the fourth amended complaint are moot. See Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012) (when an inmate seeks injunctive relief concerning the prison where he is incarcerated, his claims for such relief become moot when he is no longer subjected to those conditions). For these reasons, plaintiff is granted thirty days to file a fifth amended complaint raising claims regarding his alleged failure to receive treatment for voyeurism and exhibitionism at Soledad. Defendants are not required to respond to the fifth amended complaint until ordered by the court.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff is granted thirty days from the date of this order to file a fifth amended complaint raising claims regarding his alleged failure to receive treatment for voyeurism and exhibitionism at Soledad; defendants are not required to respond to the fifth amended complaint until ordered by the court; if plaintiff does not file a fifth amended complaint within that time, the undersigned will recommend that this action be dismissed as moot;

2. Defendants' motion to dismiss (ECF No. 135) is vacated;

3. Plaintiff's motion to substitute the new warden of Corcoran as a defendant (ECF No. 133) is denied as unnecessary; and

4. Plaintiff's motions to amend and motion for a stay (ECF No. 162, 165) are disregarded as the court has granted plaintiff thirty days to file a fifth amended complaint.

Source:  Leagle

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