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)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION
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DAVID SCOTT HARRISON,
Plaintiff,
United States District Court
Northern District of California
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v.
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S. KERNAN, et al.,
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Case No. 16-cv-07103-RMI
Defendants.
ORDER RE: DEFENDANT’S MOTION
TO DISMISS PLAINTIFF’S
COMPLAINT AS MOOT
Re: Dkt. No. 96
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Plaintiff, an elderly inmate at San Quentin State Prison, brought this action to challenge a
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policy (Cal. Code Regs. tit. 15, § 3190(b)(1)-(5)) (hereafter, the “Policy”) promulgated by
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California Department of Corrections and Rehabilitation (hereafter, “CDCR”) regarding property
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possession rules that prohibited him from possessing many of the same items of property that
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female inmates of the same or higher security classification1 are allowed to have. See generally
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Compl. (dkt. 1-1) at 5-103; see also Pl.’s Mot. (dkt. 91) at 6. Exemplars of some of the items that
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the Policy permits women, but not men, to possess includes the card game Uno, ketchup, and
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cotton balls. See id. Arguing that the court must apply intermediate scrutiny to the Policy, Plaintiff
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contended that CDCR’s objective for its discriminatory Policy is illegitimate because CDCR
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cannot show a close fit between its gender-based personal property restrictions and the interests
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that CDCR claims necessitate the distinctions enshrined in the Policy. See generally Pl.’s Mot.
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(dkt. 91) at 11-16.
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During the pendency of this case, however, “[o]n November 1, 2023, [CDCR]
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implemented new property regulations for all inmates, including Plaintiff, that supplant the
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challenged regulations.” See Def.’s Mot. (dkt. 96) at 2. Consequently, “CDCR no longer enforces
United States District Court
Northern District of California
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the old inmate-property regulations, which Plaintiff alleges violated his equal protection rights.”
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Id. Defendant submits that this renders “Plaintiff’s challenge [] moot because there is no relief this
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Court can afford Plaintiff, other than an impermissible advisory opinion.” Id. Plaintiff disagrees
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and submits that the newly enacted property schedule continues to differentiate on the basis of
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gender, prohibiting male prisoners from possessing items that female prisoners of the same (or
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higher) security classification may possess – items such as brassieres, panties, feminine hygiene
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wash, hair clips, curling irons, earrings, alarm clocks, tweezers, and plastic hangers. See Pl.’s
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Reply (dkt. 97) at 7-8. Consequently, Plaintiff contends that the case is not moot because the new
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regulations do not fundamentally change the previously-challenged regulations. Id. at 6. In the
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alternative, Plaintiff submits that he should be permitted to amend his complaint in light of the
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newly promulgated superseding regulations. See id. at 9-10. Defendant points out that the Prison
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Litigation Reform Act’s (“PLRA”) exhaustion provisions (42 U.S.C. § 1997e(a)) require inmates
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to exhaust available administrative remedies before filing lawsuits regarding prison conditions,
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and that courts may not consider unexhausted claims. See Def.’s Reply (dkt. 103) at 4-5 (citing
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Jones v. Bock, 549 U.S. 199, 218, 220 (2007). Defendant adds that “[r]equiring proper exhaustion
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serves the PLRA’s overall goals, including giving prisons a fair opportunity to address inmate
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complaints and correct their own errors, reducing the quantity of prisoner suits, and improving the
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quality of prisoner suits that eventually get filed by creating an administrative record helpful to the
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court.” Id. at 5 (citing Woodford v. Ngo, 548 U.S. 81, 83-84, 94-95 (2006)).
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As an initial matter, the court disagrees with Plaintiff’s contention that his challenge to the
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now-superseded inmate-property regulations is not moot. First, the court will note that it is
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undisputed that the new regulations are intended to be permanent, as opposed to provisional (for
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the duration of this case, or in response to the pendency of this case). Cf. Schweiker v. Gray
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Panthers, 453 U.S. 34, 42 n.12 (1981) (“In issuing the provisional regulations, the Secretary
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simply was adhering to the lower court’s reasoning and mandate,” and the Secretary had
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represented “that the new regulations probably would be rescinded if the Court of Appeals’
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decision were reversed.”); see also Maher v. Roe, 432 U.S. 464, 468 n.4 (1977) (adoption of a new
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regulation did not moot an appeal involving the previous regulation when the new regulation was
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United States District Court
Northern District of California
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“only for the purpose of interim compliance with the District Court’s judgment and order” and
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when the “appeal was taken and submitted on the theory that [the state] desires to reinstate the
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invalidated regulation.”). Second, it should be noted that Plaintiff’s claim was not simply that the
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old Policy differentiated between the lists of items that could be possessed by male and female
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prisoners – but rather that CDCR did so either baselessly or without constitutionally adequate
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justification. Therefore, in responding to Defendant’s suggestion of mootness, Plaintiff’s argument
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to the effect that the new regulations also make some distinctions between items that male and
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female prisoners may possess misses the mark. In short, the court finds Plaintiff has not contended
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that CDCR’s allegedly flawed justifications for its property-possession classifications have
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remained unchanged. Indeed, as Defendant points out, CDCR’s rule-making process is still
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ongoing, and therefore, the transition between the adoption of the emergency regulations (now in
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effect) and the permanent regulations (soon to be in effect) – as well as the enumeration of the
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stated justifications therefor – is currently still taking place.
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Article III of the Constitution grants the federal judiciary the authority to adjudicate only
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live “Cases” and “Controversies,” thus, courts have no authority to decide abstract legal disputes
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or to expound on the law in the absence of such a case or controversy. See DaimlerChrysler Corp.
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v. Cuno, 547 U. S. 332, 341 (2006). Further, an “actual controversy” must exist not only at the
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outset of litigation, but throughout all of its stages. Alvarez v. Smith, 558 U. S. 87, 92 (2009). A
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case becomes moot for purposes of Article III when the issues presented are no longer “live,” or
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when the parties no longer have a legally cognizable interest in the outcome. Already, LLC v. Nike,
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Inc., 568 U.S. 85, 91 (2013). No matter how vehemently a party continues to dispute the
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lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute “is no longer
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embedded in any actual controversy about the plaintiffs’ particular legal rights.” Alvarez, 558 U.S.
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at 93. While the voluntary cessation of the complained-of conduct does not automatically render a
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case moot (see City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 289 (1982)), courts
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generally presume that a government entity is acting in good faith when it changes its policy. See
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Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010). In general, a
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“statutory change . . . is usually enough to render a case moot, even if the legislature possesses the
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United States District Court
Northern District of California
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power to reenact the statute after the lawsuit is dismissed.” Chem. Producers & Distribs. Ass’n v.
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Helliker, 463 F.3d 871, 878 (9th Cir. 2006).
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Here, Plaintiff’s challenge was not based simply on CDCR’s conduct – such that there
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would be a concern about certain objectionable behavior being repeated in the future. Instead,
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Plaintiff complained that female prisoners were permitted to possess certain items (such as
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ketchup and cotton balls) that male prisoners were not permitted to possess without adequate
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justification. Defendant has since superseded the Policy that permitted and justified these
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distinctions and has replaced it with another policy and another set of justifications – in response
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to which Plaintiff has not stated any specific objectionable distinction (among possessable items)
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and justification (underlying the distinction) occurring after the implementation of the new policy
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other than to simply state that the new regulations still draw distinctions between items that male
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and female prisoners may possess. However, it goes without saying that an observation like that,
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alone, is insufficient to make out a gender discrimination claim. Thus, it appears that the
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promulgation and enactment of the new regulations renders Plaintiff’s claims under the superseded
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Policy moot. See e.g., White v. Lee, 227 F.3d 1214, 1225 (9th Cir. 2000) (“However, because
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HUD had implemented and memorialized a new policy prohibiting agency investigations into
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protected First Amendment activity and the plaintiffs had not alleged any specific objectionable
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conduct occurring after the implementation of that policy, the district court concluded that there
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was no live controversy under Article III. Accordingly, pursuant to Federal Rule of Civil
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Procedure 12(b)(1), it dismissed the plaintiffs’ claim for prospective relief as moot.”). In other
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words, whether the court were to affirm, or strike down, the superseded Policy, neither Party
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would have a legally cognizable interest in either outcome – thus, Plaintiff’s challenge to the
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superseded Policy is moot.
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As to Plaintiff’s request to permit him leave to amend his Complaint in order to plead
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unexhausted claims under the new regulations, the court declines that invitation because, among
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other reasons, “[t]here is no question that exhaustion is mandatory under the PLRA and that
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unexhausted claims cannot be brought in court.” See Jones, 549 U.S. at 211. It should also be
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noted that “[a] prison’s internal grievance process, not the PLRA, determines whether the
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grievance satisfies the PLRA exhaustion requirement.” Id. at 218. Also, it is far from clear that
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during the exhaustion process, Plaintiff’s concerns will not be adequately addressed by CDCR
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such that no lawsuit would be ultimately necessary. This is, after all, the entire purpose of
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exhaustion; indeed, “[t]he benefits of exhaustion can be realized only if the prison grievance
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system is given a fair opportunity to consider the grievance.” See Woodford v. Ngo, 548 U.S. 81,
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95 (2006). Nor is there any pressing matter of any statute of limitations issue attending his
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potential forthcoming claims such as would make it unfair to put Plaintiff through the trouble of
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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
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Therefore, the court finds that this case must be dismissed at this point for two reasons –
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first, his existing claims are rendered moot as discussed above; and second, his potential
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forthcoming claims, if any, suffer from a failure to exhaust available administrative remedies
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under the PLRA. The PLRA “requires that a prisoner challenging prison conditions exhaust
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available administrative remedies before filing suit.” Albino v. Baca, 747 F.3d 1162, 1165 (9th
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Cir. 2014) (en banc) (citing 42 U.S.C. § 1997e(a)). If a plaintiff concedes a claim is unexhausted –
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as is the case here with regard to his potential forthcoming claims – and no exception applies, the
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unexhausted claim is subject to dismissal. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.
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2003), overruled on other grounds by Albino, 747 F.3d at 1166. In such a circumstance, a court
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may even dismiss the claim on its own motion. See Bennett v. King, 293 F.3d 1096, 1098 (9th Cir.
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2002) (affirming district court’s sua sponte dismissal of unexhausted claims).
CONCLUSION
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Accordingly, for the reasons stated herein, Defendant’s Motion to Dismiss (dkt. 96) is
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GRANTED; Plaintiff’s Motion for Summary Judgment (dkt. 91) is DENIED as moot; and,
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Plaintiff’s Complaint (dkt. 1-1) is DISMISSED as moot. A separate judgment shall issue.
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IT IS SO ORDERED.
Dated: February 23, 2024
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ROBERT M. ILLMAN
United States Magistrate Judge
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