Dilley v. Gunn, 94-55133

• Decision Date: 08 September 1995
• Docket Number: No. 94-55133,94-55133
• Parties: 95 Cal. Daily Op. Serv. 7120, 95 Daily Journal D.A.R. 12,145 Daniel DILLEY, Plaintiff-Appellee, v. Bryan S. GUNN, Warden; Norma Wells; Sgt. Butler; B. Schelke, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

64 F.3d 1365

95 Cal. Daily Op. Serv. 7120, 95 Daily Journal

D.A.R. 12,145

Daniel DILLEY, Plaintiff-Appellee, v. Bryan S. GUNN, Warden; Norma Wells; Sgt. Butler; B.

Schelke, Defendants-Appellants.

No. 94-55133.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1995.

Decided Sept. 8, 1995.

Timothy C. Foote, Deputy Attorney General, San Diego, CA, for defendants-appellants.

Timothy B. Taylor, Karin Dougan Vogel, Sheppard, Mullin, Richter & Hampton, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges.

FLETCHER, Circuit Judge:

The defendants, prison officials at Calipatria State Prison ("Calipatria"), appeal a district court order requiring them to improve inmates' access to the prison's law library. The district court issued the order after entering summary judgment in favor of plaintiff Daniel Dilley, an inmate at Calipatria, on his claim that the defendants violated his right of access to the courts by failing to provide adequate access to the law library. We do not address the validity of the district court's order granting injunctive relief because this case became moot upon Dilley's transfer from Calipatria to another state prison facility.

I

Daniel Dilley, who then was an inmate in the "C" facility at Calipatria, filed a first amended complaint under 42 U.S.C. Sec. 1983 alleging among other things that the defendants had violated his right of access to the courts under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), by failing to provide reasonable access to the Facility "C" law library. The district court found that the undisputed facts alleged in Dilley's complaint established that the defendants had failed to provide Dilley constitutionally adequate access to the law library; accordingly, the court granted Dilley's motion for summary judgment on this claim and appointed a magistrate judge as Special Master to recommend to the district court a plan to improve library access. ¹

After touring Calipatria and the Facility "C" law library, conducting hearings, and reviewing the defendants' proposed plan and Dilley's objections to it, the Special Master filed a report making his recommendations to the district court. The Special Master recommended expanding both the size of the library and its holdings; permitting inmates either to have open access to the stacks or to check out four, rather than three, books at a time; a training program for inmate law clerks; increasing both the length and frequency of inmates' visits to the library; implementing a system for scheduling inmates' use of the library; and providing more opportunities for inmates with jobs to use the library. The Special Master also recommended that the district court retain jurisdiction over the case and schedule a hearing after six months for the Special Master to assess Calipatria's compliance with the plan. Judge Keep adopted the Special Master's report in full on December 15, 1993, and the defendants filed a timely notice of appeal.

II

As an initial matter, we must determine the scope of this appeal. The defendants' opening brief challenged only the district court's order requiring them to improve inmates' access to the law library; only in their reply brief did the defendants attempt to challenge the district court's grant of Dilley's motion for summary judgment, in which the district court held that the defendants had violated Dilley's right of access to the courts by failing to provide reasonable access to the law library. Issues not raised in the opening brief usually are deemed waived. All Pacific Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1434 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1301, 127 L.Ed.2d 653 (1994).

The defendants maintain, however, that their opening brief did challenge the district court's grant of Dilley's motion for summary judgment. They rely on the fact that they argued in their opening brief that Dilley had failed to show an "actual injury" resulting from inadequate access to the law library. The defendants maintain that because a plaintiff must demonstrate an "actual injury" to prevail on a claim of inadequate library access, Vandelft v. Moses, 31 F.3d The defendants' argument is meritless. Although the defendants' opening brief argued that Dilley had failed to establish that he had been denied access to the courts, it did not ask us to reverse the district court's grant of Dilley's motion for summary judgment. Rather, the defendants' addressed the issue of "actual injury" only to advance their argument that the district court in fashioning the appropriate remedy should have considered Dilley's alleged failure to demonstrate that he was denied access to the courts as a result of the defendants' policies governing law library access. ³ Although "actual injury" to court access is an element of a plaintiff's claim that he has been denied constitutionally adequate access to the law library, it does not follow that any argument which mentions the plaintiff's failure to demonstrate actual injury constitutes an appeal regarding the merits of the plaintiff's case.

794, 796-97 (9th Cir.1994), ² their opening brief's argument that the district court should have considered Dilley's failure to demonstrate such an injury constituted an appeal of the district court's grant of Dilley's motion for summary judgment.

Our conclusion that the defendants have appealed only the district court's order granting injunctive relief, not the district court's determination that the defendants violated Dilley's constitutional rights, is supported by the defendants' notice of appeal in this case, which states clearly that the defendants intended to appeal "from the final Judgment and Order ... adopting the findings and recommendations of Magistrate Judge/Special Master to alter the physical layout of law libraries at Calipatria State Prison, directing the means of providing additional inmate access to the law libraries, and retention of jurisdiction over this case for six months to assess compliance with the plan." Because the defendants did not challenge the district court's grant of Dilley's motion for summary judgment in their opening brief, this issue is waived and the sole issue on appeal is whether the district court surpassed its authority in fashioning an appropriate remedy for a proven constitutional violation.

III

The defendants argue that this case is moot. We agree. Since the district court granted injunctive relief in this case, Dilley has been transferred from Calipatria to another California state prison. 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 certified as a class action. Preiser v. Newkirk, 422 U.S. 395, 402-03, 95 S.Ct. 2330, 2334-35, 45 L.Ed.2d 272 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

Dilley argues that this case is "capable of repetition, yet evading review." See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973); Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). This exception to the mootness doctrine applies when (1) the challenged action is too short in duration to be fully litigated prior to its expiration and (2) there is a reasonable expectation that the injury will occur again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). Dilley's claim falls short with respect to each of these requirements.

First, an inmate's "claim of inadequate access to legal materials is not one that Second, Dilley has not demonstrated a reasonable expectation that he will be transferred back to Calipatria and subjected again to law library policies depriving him of meaningful access to the courts. When Dilley filed this lawsuit, he was classified as a Class IV inmate, which in California's classification system represents the highest level of risk to prison security. Dilley was transferred from Calipatria to a lower-level security institution when he was reclassified as a Class III inmate. Calipatria does not house Class III inmates, and Dilley would be reclassified as a Class IV inmate only if he were to commit a serious violation of prison rules. Accordingly, Dilley's claim that he might be transferred back to Calipatria some time in the future is "too speculative" to prevent mootness. See Wiggins, 760 F.2d at 1011; see also Reimers v. Oregon, 863 F.2d 630, 632 & n. 4 (9th Cir.1988) (plaintiff who had been released from prison had no reasonable expectation of return because such return would occur only if the plaintiff committed additional criminal acts).

will evade review." Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir.1985) ("This case neither challenges a court order which, by its own terms, expires in a few days nor raises questions which are mooted by the termination of a nonjudicial activity that is of short duration."). The scores of cases in which we have reviewed claims by inmates that prison officials failed to provide adequate access to prison law libraries demonstrate that these cases do not generally evade review. E.g., Casey v. Lewis, 43 F.3d 1261 (9th Cir.1994), cert. granted, --- U.S. ----, 115 S.Ct. 1997, 131 L.Ed.2d 999 (1995); Vandelft v. Moses, 31 F.3d 794 (9th Cir.1994); Gluth v. Kangas, 951 F.2d 1504 (9th Cir.1991); Johnson, 948 F.2d 517; Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851 (9th Cir.1985). Dilley has not alleged and our independent review has not revealed any reason why the general rule enunciated...