Norsworthy v. Beard

• Decision Date: 05 October 2015
• Docket Number: No. 15–15712.,15–15712.
• Citation: 802 F.3d 1090
• Parties: Michelle–Lael B. NORSWORTHY, Plaintiff–Appellee, v. Jeffrey BEARD, CDCR Secretary; M.E. Spearman, CTF Warden; Raymond J. Coffin ; Jared Lozano; A. Adams, Chief Medical Executive of CTF, Soledad, CA; A. Newton; David Van Leer; L.D. Zamora, CDCR Appeals Chief, Sacramento, CA, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

802 F.3d 1090

Michelle–Lael B. NORSWORTHY, Plaintiff–Appellee

v.Jeffrey BEARD, CDCR Secretary; M.E. Spearman, CTF Warden; Raymond J. Coffin ; Jared Lozano; A. Adams, Chief Medical Executive of CTF, Soledad, CA; A. Newton; David Van Leer; L.D. Zamora, CDCR Appeals Chief, Sacramento, CA, Defendants–Appellants.

No. 15–15712.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 13, 2015.^*

Filed Oct. 5, 2015.

Jose A. Zelidon–Zepeda, Deputy Attorney General; Thomas S. Patterson ; Supervising Deputy Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, San Francisco, CA, for Defendants–Appellants.

Herman J. Hoying and Christopher J. Banks, Morgan Lewis & Bockius LLP, San Francisco, CA; Ilona M. Turner, Jennifer Orthwein, and Shawn T. Meerkamper, Transgender Law Center, Oakland, CA, for Plaintiff–Appellee.

Paul R.Q. Wolfson and Thomas C. Kost, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Alan E. Schoenfeld and Adriel I. Cepeda Derieux, Wilmer Cutler Pickering Hale and Dorr LLP, New York, N.Y.; Felicia H. Ellsworth, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, for Amici Curiae American Civil Liberties Union et al.

Sanford Jay Rosen and Aaron J. Fischer, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA, for Amici Curiae Bay Area Lawyers for Individual Freedom.

Barry Levenstam, Jenner & Block LLP, Chicago, IL; Lisa J. Kohn, Jenner & Block LLP, Los Angeles, CA; Devi M. Rao, Jenner & Block LLP, Washington, DC, for Amici Curiae Medical and Mental Health Professionals: World Professional Association for Transgender Health and GLMA: Health Professionals Advancing LGBT Equality.

Appeal from the United States District Court for the Northern District of California, Jon S. Tigar, District Judge, Presiding. D.C. No. 3:14–cv–00695–JST.

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

PER CURIAM:

Plaintiff Michelle Norsworthy, a transgendered woman, has been incarcerated in the California prison system since 1987. In 2000, she was diagnosed with gender dysphoria

and, several years thereafter, petitioned the California Department of Corrections and Rehabilitation (“CDCR”) for sex reassignment surgery, a procedure that would transform her sex characteristics from male to female. After CDCR denied the petition, Norsworthy sued, alleging that the denial amounted to cruel and unusual punishment under the Eighth Amendment. The district court issued a preliminary injunction ordering the defendants to provide Norsworthy with sex reassignment surgery. CDCR appealed under 28 U.S.C. § 1292(a)(1). This court stayed the preliminary injunction pending appeal.

While this appeal was pending—one day prior to oral argument—Norsworthy was released on parole from the California prison system. The defendants contend that the case became moot once CDCR released Norsworthy. We agree. “An inmate's release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison's policies unless the suit has been classified as a class action.” Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir.1995). Norsworthy does not seriously dispute that the case became moot upon her release.

Here, the district court entered a mandatory injunction requiring CDCR to perform sex reassignment surgery. Although automatic vacatur is “the ‘established practice’ ... whenever mootness prevents appellate review,” an exception to this practice exists when a case is mooted “not due to ‘happenstance’ but ‘when the appellant has by his own act caused the dismissal of the appeal.’ ” Dilley, 64 F.3d at 1369–70 (quoting Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir.1982) ). Defendants argue that vacatur is appropriate as to the entirety of the district court's determination because an “independent parole suitability review process” mooted the case. Where “the facts surrounding” a prisoner's release “are not sufficiently developed in the record ... to determine” whether the release occurred through happenstance or the defendants' actions, the appropriate course is to remand to the district court to determine whether to vacate its order. Id. at 1371. We therefore remand to the district court so that it can determine whether this appeal became moot through happenstance or the defendants' own actions.¹ If the latter is the case, the district court should consider the factors under Ringsby to determine whether to vacate its preliminary injunction order.

Accordingly, this appeal is dismissed as moot, and we remand this case to the district court so that it can determine whether to vacate its preliminary injunction order, as well as to consider the question of the award of attorneys' fees.

DISMISSED and REMANDED with directions.

CALLAHAN, Circuit Judge, concurring in the dismissal and dissenting from the remand:

Everyone agrees that this appeal is moot. Ms. Norsworthy has been released from custody by the California Department of Corrections and Rehabilitation (“CDCR”). Accordingly, in addition to dismissing this appeal we should vacate the mandatory preliminary injunction ordering CDCR to provide Ms. Norsworthy with sex reassignment surgery.

The majority's remand is based on legal error and unnecessarily prolongs this litigation. The majority admits that vacatur is appropriate unless “the appellant has by his own act caused the dismissal of the appeal.” Dilley v. Gunn, 64 F.3d 1365, 1369–70 (9th Cir.1995). The majority does not say that this has happened; it only protests that the facts surrounding Ms. Norsworthy's release “are not sufficiently developed.”

This approaches sophistry. The process by which the Parole Board determined that Ms. Norsworthy's confinement was no longer required and the Governor's review of that decision are set forth fully in the documents that have been submitted to the Court. There is no real doubt that the Parole Board and the Governor are not subject to or responsible to the CDCR.¹

Moreover, the remand simply encourages unnecessary litigation over a...