Harrison v. Kernan et al

Filing 105

ORDER by Judge Robert M. Illman denying as moot 91 Motion for Summary Judgment; granting 96 Motion to Dismiss. (rmilc2, COURT STAFF) (Filed on 2/23/2024)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

EUREKA DIVISION

7
8

DAVID SCOTT HARRISON,
Plaintiff,

United States District Court
Northern District of California

9
10

v.

11

S. KERNAN, et al.,

12

Case No. 16-cv-07103-RMI

Defendants.

ORDER RE: DEFENDANT’S MOTION
TO DISMISS PLAINTIFF’S
COMPLAINT AS MOOT
Re: Dkt. No. 96

13
14

Plaintiff, an elderly inmate at San Quentin State Prison, brought this action to challenge a

15

policy (Cal. Code Regs. tit. 15, § 3190(b)(1)-(5)) (hereafter, the “Policy”) promulgated by

16

California Department of Corrections and Rehabilitation (hereafter, “CDCR”) regarding property

17

possession rules that prohibited him from possessing many of the same items of property that

18

female inmates of the same or higher security classification1 are allowed to have. See generally

19

Compl. (dkt. 1-1) at 5-103; see also Pl.’s Mot. (dkt. 91) at 6. Exemplars of some of the items that

20

the Policy permits women, but not men, to possess includes the card game Uno, ketchup, and

21

cotton balls. See id. Arguing that the court must apply intermediate scrutiny to the Policy, Plaintiff

22

contended that CDCR’s objective for its discriminatory Policy is illegitimate because CDCR

23

cannot show a close fit between its gender-based personal property restrictions and the interests

24

that CDCR claims necessitate the distinctions enshrined in the Policy. See generally Pl.’s Mot.

25

(dkt. 91) at 11-16.

26

During the pendency of this case, however, “[o]n November 1, 2023, [CDCR]

27

implemented new property regulations for all inmates, including Plaintiff, that supplant the

28

challenged regulations.” See Def.’s Mot. (dkt. 96) at 2. Consequently, “CDCR no longer enforces

United States District Court
Northern District of California

1

the old inmate-property regulations, which Plaintiff alleges violated his equal protection rights.”

2

Id. Defendant submits that this renders “Plaintiff’s challenge [] moot because there is no relief this

3

Court can afford Plaintiff, other than an impermissible advisory opinion.” Id. Plaintiff disagrees

4

and submits that the newly enacted property schedule continues to differentiate on the basis of

5

gender, prohibiting male prisoners from possessing items that female prisoners of the same (or

6

higher) security classification may possess – items such as brassieres, panties, feminine hygiene

7

wash, hair clips, curling irons, earrings, alarm clocks, tweezers, and plastic hangers. See Pl.’s

8

Reply (dkt. 97) at 7-8. Consequently, Plaintiff contends that the case is not moot because the new

9

regulations do not fundamentally change the previously-challenged regulations. Id. at 6. In the

10

alternative, Plaintiff submits that he should be permitted to amend his complaint in light of the

11

newly promulgated superseding regulations. See id. at 9-10. Defendant points out that the Prison

12

Litigation Reform Act’s (“PLRA”) exhaustion provisions (42 U.S.C. § 1997e(a)) require inmates

13

to exhaust available administrative remedies before filing lawsuits regarding prison conditions,

14

and that courts may not consider unexhausted claims. See Def.’s Reply (dkt. 103) at 4-5 (citing

15

Jones v. Bock, 549 U.S. 199, 218, 220 (2007). Defendant adds that “[r]equiring proper exhaustion

16

serves the PLRA’s overall goals, including giving prisons a fair opportunity to address inmate

17

complaints and correct their own errors, reducing the quantity of prisoner suits, and improving the

18

quality of prisoner suits that eventually get filed by creating an administrative record helpful to the

19

court.” Id. at 5 (citing Woodford v. Ngo, 548 U.S. 81, 83-84, 94-95 (2006)).

20

As an initial matter, the court disagrees with Plaintiff’s contention that his challenge to the

21

now-superseded inmate-property regulations is not moot. First, the court will note that it is

22

undisputed that the new regulations are intended to be permanent, as opposed to provisional (for

23

the duration of this case, or in response to the pendency of this case). Cf. Schweiker v. Gray

24

Panthers, 453 U.S. 34, 42 n.12 (1981) (“In issuing the provisional regulations, the Secretary

25

simply was adhering to the lower court’s reasoning and mandate,” and the Secretary had

26

represented “that the new regulations probably would be rescinded if the Court of Appeals’

27

decision were reversed.”); see also Maher v. Roe, 432 U.S. 464, 468 n.4 (1977) (adoption of a new

28

regulation did not moot an appeal involving the previous regulation when the new regulation was
2

United States District Court
Northern District of California

1

“only for the purpose of interim compliance with the District Court’s judgment and order” and

2

when the “appeal was taken and submitted on the theory that [the state] desires to reinstate the

3

invalidated regulation.”). Second, it should be noted that Plaintiff’s claim was not simply that the

4

old Policy differentiated between the lists of items that could be possessed by male and female

5

prisoners – but rather that CDCR did so either baselessly or without constitutionally adequate

6

justification. Therefore, in responding to Defendant’s suggestion of mootness, Plaintiff’s argument

7

to the effect that the new regulations also make some distinctions between items that male and

8

female prisoners may possess misses the mark. In short, the court finds Plaintiff has not contended

9

that CDCR’s allegedly flawed justifications for its property-possession classifications have

10

remained unchanged. Indeed, as Defendant points out, CDCR’s rule-making process is still

11

ongoing, and therefore, the transition between the adoption of the emergency regulations (now in

12

effect) and the permanent regulations (soon to be in effect) – as well as the enumeration of the

13

stated justifications therefor – is currently still taking place.

14

Article III of the Constitution grants the federal judiciary the authority to adjudicate only

15

live “Cases” and “Controversies,” thus, courts have no authority to decide abstract legal disputes

16

or to expound on the law in the absence of such a case or controversy. See DaimlerChrysler Corp.

17

v. Cuno, 547 U. S. 332, 341 (2006). Further, an “actual controversy” must exist not only at the

18

outset of litigation, but throughout all of its stages. Alvarez v. Smith, 558 U. S. 87, 92 (2009). A

19

case becomes moot for purposes of Article III when the issues presented are no longer “live,” or

20

when the parties no longer have a legally cognizable interest in the outcome. Already, LLC v. Nike,

21

Inc., 568 U.S. 85, 91 (2013). No matter how vehemently a party continues to dispute the

22

lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute “is no longer

23

embedded in any actual controversy about the plaintiffs’ particular legal rights.” Alvarez, 558 U.S.

24

at 93. While the voluntary cessation of the complained-of conduct does not automatically render a

25

case moot (see City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 289 (1982)), courts

26

generally presume that a government entity is acting in good faith when it changes its policy. See

27

Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010). In general, a

28

“statutory change . . . is usually enough to render a case moot, even if the legislature possesses the
3

United States District Court
Northern District of California

1

power to reenact the statute after the lawsuit is dismissed.” Chem. Producers & Distribs. Ass’n v.

2

Helliker, 463 F.3d 871, 878 (9th Cir. 2006).

3

Here, Plaintiff’s challenge was not based simply on CDCR’s conduct – such that there

4

would be a concern about certain objectionable behavior being repeated in the future. Instead,

5

Plaintiff complained that female prisoners were permitted to possess certain items (such as

6

ketchup and cotton balls) that male prisoners were not permitted to possess without adequate

7

justification. Defendant has since superseded the Policy that permitted and justified these

8

distinctions and has replaced it with another policy and another set of justifications – in response

9

to which Plaintiff has not stated any specific objectionable distinction (among possessable items)

10

and justification (underlying the distinction) occurring after the implementation of the new policy

11

other than to simply state that the new regulations still draw distinctions between items that male

12

and female prisoners may possess. However, it goes without saying that an observation like that,

13

alone, is insufficient to make out a gender discrimination claim. Thus, it appears that the

14

promulgation and enactment of the new regulations renders Plaintiff’s claims under the superseded

15

Policy moot. See e.g., White v. Lee, 227 F.3d 1214, 1225 (9th Cir. 2000) (“However, because

16

HUD had implemented and memorialized a new policy prohibiting agency investigations into

17

protected First Amendment activity and the plaintiffs had not alleged any specific objectionable

18

conduct occurring after the implementation of that policy, the district court concluded that there

19

was no live controversy under Article III. Accordingly, pursuant to Federal Rule of Civil

20

Procedure 12(b)(1), it dismissed the plaintiffs’ claim for prospective relief as moot.”). In other

21

words, whether the court were to affirm, or strike down, the superseded Policy, neither Party

22

would have a legally cognizable interest in either outcome – thus, Plaintiff’s challenge to the

23

superseded Policy is moot.

24

As to Plaintiff’s request to permit him leave to amend his Complaint in order to plead

25

unexhausted claims under the new regulations, the court declines that invitation because, among

26

other reasons, “[t]here is no question that exhaustion is mandatory under the PLRA and that

27

unexhausted claims cannot be brought in court.” See Jones, 549 U.S. at 211. It should also be

28

noted that “[a] prison’s internal grievance process, not the PLRA, determines whether the
4

1

grievance satisfies the PLRA exhaustion requirement.” Id. at 218. Also, it is far from clear that

2

during the exhaustion process, Plaintiff’s concerns will not be adequately addressed by CDCR

3

such that no lawsuit would be ultimately necessary. This is, after all, the entire purpose of

4

exhaustion; indeed, “[t]he benefits of exhaustion can be realized only if the prison grievance

5

system is given a fair opportunity to consider the grievance.” See Woodford v. Ngo, 548 U.S. 81,

6

95 (2006). Nor is there any pressing matter of any statute of limitations issue attending his

7

potential forthcoming claims such as would make it unfair to put Plaintiff through the trouble of

8

filing a new lawsuit when, or if, his claims under the new regulations ripen and are exhausted.

United States District Court
Northern District of California

9

Therefore, the court finds that this case must be dismissed at this point for two reasons –

10

first, his existing claims are rendered moot as discussed above; and second, his potential

11

forthcoming claims, if any, suffer from a failure to exhaust available administrative remedies

12

under the PLRA. The PLRA “requires that a prisoner challenging prison conditions exhaust

13

available administrative remedies before filing suit.” Albino v. Baca, 747 F.3d 1162, 1165 (9th

14

Cir. 2014) (en banc) (citing 42 U.S.C. § 1997e(a)). If a plaintiff concedes a claim is unexhausted –

15

as is the case here with regard to his potential forthcoming claims – and no exception applies, the

16

unexhausted claim is subject to dismissal. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.

17

2003), overruled on other grounds by Albino, 747 F.3d at 1166. In such a circumstance, a court

18

may even dismiss the claim on its own motion. See Bennett v. King, 293 F.3d 1096, 1098 (9th Cir.

19

2002) (affirming district court’s sua sponte dismissal of unexhausted claims).
CONCLUSION

20
21

Accordingly, for the reasons stated herein, Defendant’s Motion to Dismiss (dkt. 96) is

22

GRANTED; Plaintiff’s Motion for Summary Judgment (dkt. 91) is DENIED as moot; and,

23

Plaintiff’s Complaint (dkt. 1-1) is DISMISSED as moot. A separate judgment shall issue.

24
25

IT IS SO ORDERED.
Dated: February 23, 2024

26
27
ROBERT M. ILLMAN
United States Magistrate Judge

28
5