Maher Suarez v. Jeff MacOmber

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2024
• Docket: 23-15821
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 7 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAHER CONRAD SUAREZ, No. 23-15821

Plaintiff-Appellant, D.C. No. 2:18-cv-00340-KJM-DB

v.

JEFF MACOMBER, et al., MEMORANDUM* Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Submitted June 3, 2024** San Francisco, California

Before: S.R. THOMAS, and BUMATAY, Circuit Judges; and BENNETT,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Plaintiff-Appellant Maher Conrad Suarez, a prisoner in custody of the

California Department of Corrections and Rehabilitation (“CDCR”), challenges the

district court’s dismissal as moot his action seeking declaratory and injunctive

relief under 42 U.S.C. § 1983. Suarez brought this action against several

correctional officers and prison officials at Pelican Bay Prison in their individual

capacites based on their conduct in carrying out suicide-prevention welfare checks,

and several state level CDCR officials in both individual and official capacities.

Suarez alleged that court-mandated welfare checks, which defendants conduct

through the Guard One Security Check system, deprived him of sleep while housed

in the Security Housing Unit (“SHU”) at Pelican Bay State Prison in violation of

the Eighth Amendment. Because the parties are familiar with the factual and

procedural history of the case, we need not recount it here.

Our jurisdiction is governed by 8 U.S.C. § 1291. We review “legal

conclusions concerning mootness de novo and factual findings concerning

mootness for clear error.” Rocky Mountain Farmers Union v. Corey, 913 F.3d 940,

949 (9th Cir. 2019). We affirm the district court’s dismissal of Suarez’s action as

moot.

2 I

The district court did not err in holding that Suarez’s action did not fall into

the “capable of repetition, yet evading review” exception to the mootness doctrine.

“To qualify as a case fit for federal-court adjudication, an actual controversy must

be extant at all stages of review, not merely at the time the complaint is filed.”

Davis v. Fed. Election Comm’n, 554 U.S. 724, 732–33 (2008) (internal quotation

marks omitted). A case that becomes moot at any point during the proceedings is

“no longer a ‘Case’ or ‘Controversy’ for purposes of Article III,” and is outside the

federal courts’ jurisdiction. United States v. Sanchez-Gomez, 584 U.S. 381,

385–86 (2018) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).

Suarez’s injunctive claims are moot because he was transferred to Solano

Prison and is no longer housed in Pelican Bay State Prison’s SHU. See Nelson v.

Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (citation omitted) (“[W]hen a prisoner is

moved from a prison, his action will usually become moot as to conditions at that

particular facility.”). Thus, Suarez needs to show that this action is “capable of

repetition, yet evading review.”

For the controversies “capable of repetition, yet evading review” exception

to the mootness doctrine to apply, a plaintiff must show: (1) “the challenged action

is in its duration too short to be fully litigated prior to cessation or expiration,” and

3 (2) “there is a reasonable expectation that the same complaining party will be

subject to the same action again.” Kingdomware Techs., Inc. v. United States, 579

U.S. 162, 170 (2016) (cleaned up); see also Alcoa, Inc. v. Bonneville Power

Admin., 698 F.3d 774, 786 (9th Cir. 2012).

Suarez argues that because the Lipsey settlement leaves Guard One in place,

it does not prevent the core dispute from recurring. However, the district court

properly determined that the Lipsey settlement materially changed the application

of Guard One, such that if Suarez was once again subjected to solitary

confinement, he could not “suffer the same or very similar harm.” Alcoa, 698 F.3d

at 786. First, the court properly took judicial notice of the Lipsey settlement

because it was a court filing. See Rico v. Ducart, 980 F.3d 1292, 1295 n.2 (9th Cir.

2020). Next, the court reviewed the terms of the settlement and used these terms

as the factual basis to determine that Suarez could not be subjected to Guard One

in the same way that he was subjected to it in the past. Thus, the district court

properly held that Suarez’s action was rendered moot. Even though the Lipsey

settlement leaves Guard One in place, the terms of the settlement prevent the core

dispute from recurring because the harm that Suarez suffered is not capable of

repetition.

4 II

The district court did not deny Suarez a procedural right by dismissing his

action after taking judicial notice of the Lipsey settlement without affording him

notice and an opportunity to respond. “While a party is entitled to notice and an

opportunity to respond when a court contemplates dismissing a claim on the

merits, it is not so when the dismissal is for lack of subject matter jurisdiction.”

Scholastic Ent., Inc. v. Fox Ent. Grp., 336 F.3d 982, 985 (9th Cir. 2003) (citation

omitted). District courts may dismiss a litigant’s claims for lack of subject matter

jurisdiction (a) “when parties have previously argued the issue of jurisdiction” or

(b) “where lack of jurisdiction appears on the face of the complaint and is

obviously not curable.” Ho v. Russi, 45 F.4th 1083, 1086 (9th Cir. 2022) (cleaned

up).

Suarez cannot show that he was denied a procedural right. Both parties

extensively briefed the issue of mootness and the applicability of the “capable of

repetition, yet evading review” exception. Thus, both parties “[had] previously

argued the issue of jurisdiction,” and it was not improper for the district court to

dismiss for lack of subject matter jurisdiction. Ho, 45 F.4th at 1086.

5 AFFIRMED.1

1 The defendants’ motion to take judicial notice (Dkt. 21) is GRANTED. 6