1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAHER CONRAD SUAREZ, No. 2:18-cv-0340 KJM DB P 12 Plaintiff, 13 v. ORDER 14 JEFFREU BEARD, et al., 15 Defendants. 16
17 18 Plaintiff is a state prisoner proceeding through counsel with this civil rights action under 19 42 U.S.C. § 1983. This matter is before the court on plaintiff’s January 10, 2022 motion to 20 amend the complaint or, in the alternative, for a ruling on his pending objections to the magistrate 21 judge’s recommended dismissal of his claims for injunctive and declaratory relief. ECF No. 122. 22 Defendants oppose the motion. ECF No. 123. For the reasons explained in this order plaintiff’s 23 motion is denied and this action is dismissed as moot. 24 I. BACKGROUND 25 By this action, plaintiff claims that defendants’ operation of the Guard One Security 26 Check system, implemented in specific units in California’s prisons as a suicide prevention 27 measure, has caused him to suffer sleep deprivation in violation of his rights under the Eighth 28 1 Amendment.1 This action is proceeding on plaintiff’s second amended complaint, filed 2 November 17, 2017, in which he sought both money damages and injunctive and declaratory 3 relief. ECF No. 53 at 26. 4 On January 3, 2018, defendants filed a motion to dismiss. ECF No. 58. On June 28, 5 2019, defendants filed a motion to stay this action pending disposition of an appeal in a related 6 action. ECF No. 90. On September 20, 2019, the magistrate judge issued findings and 7 recommendations recommending defendants’ motion to dismiss be granted in part, denied in part, 8 and stayed in part. ECF No. 98. In relevant part, the magistrate judge recommended dismissal of 9 plaintiff’s claims for injunctive relief on the ground that the claims were mooted by plaintiff’s 10 transfer from Pelican Bay State Prison (PBSP), where he was incarcerated when this action was 11 filed, and that the “capable of repetition yet evading review” exception to the mootness doctrine 12 did not apply because plaintiff had not shown a “‘reasonable expectation’ that he will be 13 reincarcerated in the PBSB SHU (Security Housing Unit) or ASU (Administrative Segregation 14 Unit)” or that, if incarcerated in a different SHU or ASU, that he would “be subjected to the same 15 alleged misuses of the Guard One system complained of in the present case.” ECF No. 98 at 8, 9. 16 Both parties filed objections to the findings and recommendations and responses to each other’s 17 objections. ECF Nos. 102, 103, 106, 107. 18 On March 31, 2021, this court stayed the action pending resolution of a motion for 19 rehearing en banc in the related case, Rico v. Ducart, Court of Appeals No. 19-15541. ECF No. 20 112. On May 11, 2021, following denial of the petition for rehearing in Rico and consistent with 21 the court’s March 31, 2021 order, defendants filed a motion to lift the stay and dismiss this action 22 on grounds of qualified immunity. ECF No. 114. On October 5, 2021, the court granted 23 defendants’ motion, ECF No. 117, and entered judgment, ECF No. 118. 24
25 1 Plaintiff initially filed this action in the United States District Court for the Northern District of California, which transferred the matter to this court in February 2018. ECF Nos. 65, 26 67. This court related it to other cases challenging implementation and operation of the Guard One System. ECF No. 74. 27
28 1 On November 2, 2021, plaintiff filed a motion for reconsideration of the entry of 2 judgment as to his claims for injunctive and declaratory relief. ECF No. 119. The court granted 3 plaintiff’s motion and gave him “thirty days to tender evidence, if any he has, whether in the 4 intervening two years he has been subject to the conditions complained of in his second amended 5 complaint and, as appropriate, either a motion for voluntary dismissal of his claims for injunctive 6 relief or a motion to amend his complaint.” December 9, 2021 Order, ECF No. 120, at 3. 7 On January 10, 2022, plaintiff filed the instant motion. Defendants filed their opposition 8 on January 26, 2022. On March 14, 2023 and March 23, 2023, as required by court order, ECF 9 No. 133, the parties filed supplemental briefing addressing the effect, if any, of the December 6, 10 2022 decision of the United States Court of Appeals for the Ninth Circuit in Rico v. Ducart, No. 11 21-168880, on plaintiff’s pending motion. ECF Nos. 134 (defendants’ supplemental brief), 135 12 (plaintiff’s supplemental brief). 13 II. LEGAL STANDARDS 14 A. Leave to Amend 15 Because defendants oppose plaintiff’s motion to amend, plaintiff may only amend his 16 complaint with leave of court. See Fed. R. Civ. P. 15(a)(2). While “leave to amend should be 17 given freely” the court may deny amendment where “amendment would be futile.” Cervantes v. 18 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (internal citation omitted). 19 B. Review of Magistrate Judge Findings and Recommendations 20 The court reviews de novo the parts of findings and recommendations to which objections 21 are made. 28 U.S.C. § 636(b)(1). The court “may accept, reject, or modify, in whole or in part, 22 the findings and recommendations made by the magistrate judge.” Id. 23 C. Mootness Standards 24 “Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’ ” Campbell–Ewald Co. v. Gomez, __ 25 U.S. __, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). Thus, “[t]o qualify as a case fit for federal-court adjudication, an actual 26 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 27 U.S. 724, 732–33, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (internal quotation marks omitted). An exception exists, however, 28 for controversies that are “capable of repetition, yet evading 1 review.” Kingdomware Techs., Inc. v. United States, __ U.S. __, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016). “That exception 2 applies only in exceptional situations, where (1) the challenged action is in its duration too short to be fully litigated prior to 3 cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action 4 again.” Id. (internal quotation marks and brackets omitted). 5 Hamamoto v. Ige, 881 F.3d 719, 722 (9th Cir. 2018). The first prong of the “capable of 6 repetition, yet evading review” doctrine requires that the controversy “be of ‘inherently limited 7 duration.’” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014). This is 8 because “the ‘capable of repetition, yet evading review’ exception is concerned not with 9 particular lawsuits, but with classes of cases that, absent an exception, would always evade 10 judicial review.” Id. (emphasis in original). In analyzing the second prong, the court assumes 11 “‘that [litigants] will conduct their activities within the law and so avoid prosecution and 12 conviction as well as exposure to the challenged course of conduct.’” United States v. Sanchez- 13 Gomez, 138 S. Ct. 1532, 1541 (2018) (quoting O’Shea v. Littleton, 414 U.S. 488, 497 (1974). 14 III.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAHER CONRAD SUAREZ, No. 2:18-cv-0340 KJM DB P 12 Plaintiff, 13 v. ORDER 14 JEFFREU BEARD, et al., 15 Defendants. 16
17 18 Plaintiff is a state prisoner proceeding through counsel with this civil rights action under 19 42 U.S.C. § 1983. This matter is before the court on plaintiff’s January 10, 2022 motion to 20 amend the complaint or, in the alternative, for a ruling on his pending objections to the magistrate 21 judge’s recommended dismissal of his claims for injunctive and declaratory relief. ECF No. 122. 22 Defendants oppose the motion. ECF No. 123. For the reasons explained in this order plaintiff’s 23 motion is denied and this action is dismissed as moot. 24 I. BACKGROUND 25 By this action, plaintiff claims that defendants’ operation of the Guard One Security 26 Check system, implemented in specific units in California’s prisons as a suicide prevention 27 measure, has caused him to suffer sleep deprivation in violation of his rights under the Eighth 28 1 Amendment.1 This action is proceeding on plaintiff’s second amended complaint, filed 2 November 17, 2017, in which he sought both money damages and injunctive and declaratory 3 relief. ECF No. 53 at 26. 4 On January 3, 2018, defendants filed a motion to dismiss. ECF No. 58. On June 28, 5 2019, defendants filed a motion to stay this action pending disposition of an appeal in a related 6 action. ECF No. 90. On September 20, 2019, the magistrate judge issued findings and 7 recommendations recommending defendants’ motion to dismiss be granted in part, denied in part, 8 and stayed in part. ECF No. 98. In relevant part, the magistrate judge recommended dismissal of 9 plaintiff’s claims for injunctive relief on the ground that the claims were mooted by plaintiff’s 10 transfer from Pelican Bay State Prison (PBSP), where he was incarcerated when this action was 11 filed, and that the “capable of repetition yet evading review” exception to the mootness doctrine 12 did not apply because plaintiff had not shown a “‘reasonable expectation’ that he will be 13 reincarcerated in the PBSB SHU (Security Housing Unit) or ASU (Administrative Segregation 14 Unit)” or that, if incarcerated in a different SHU or ASU, that he would “be subjected to the same 15 alleged misuses of the Guard One system complained of in the present case.” ECF No. 98 at 8, 9. 16 Both parties filed objections to the findings and recommendations and responses to each other’s 17 objections. ECF Nos. 102, 103, 106, 107. 18 On March 31, 2021, this court stayed the action pending resolution of a motion for 19 rehearing en banc in the related case, Rico v. Ducart, Court of Appeals No. 19-15541. ECF No. 20 112. On May 11, 2021, following denial of the petition for rehearing in Rico and consistent with 21 the court’s March 31, 2021 order, defendants filed a motion to lift the stay and dismiss this action 22 on grounds of qualified immunity. ECF No. 114. On October 5, 2021, the court granted 23 defendants’ motion, ECF No. 117, and entered judgment, ECF No. 118. 24
25 1 Plaintiff initially filed this action in the United States District Court for the Northern District of California, which transferred the matter to this court in February 2018. ECF Nos. 65, 26 67. This court related it to other cases challenging implementation and operation of the Guard One System. ECF No. 74. 27
28 1 On November 2, 2021, plaintiff filed a motion for reconsideration of the entry of 2 judgment as to his claims for injunctive and declaratory relief. ECF No. 119. The court granted 3 plaintiff’s motion and gave him “thirty days to tender evidence, if any he has, whether in the 4 intervening two years he has been subject to the conditions complained of in his second amended 5 complaint and, as appropriate, either a motion for voluntary dismissal of his claims for injunctive 6 relief or a motion to amend his complaint.” December 9, 2021 Order, ECF No. 120, at 3. 7 On January 10, 2022, plaintiff filed the instant motion. Defendants filed their opposition 8 on January 26, 2022. On March 14, 2023 and March 23, 2023, as required by court order, ECF 9 No. 133, the parties filed supplemental briefing addressing the effect, if any, of the December 6, 10 2022 decision of the United States Court of Appeals for the Ninth Circuit in Rico v. Ducart, No. 11 21-168880, on plaintiff’s pending motion. ECF Nos. 134 (defendants’ supplemental brief), 135 12 (plaintiff’s supplemental brief). 13 II. LEGAL STANDARDS 14 A. Leave to Amend 15 Because defendants oppose plaintiff’s motion to amend, plaintiff may only amend his 16 complaint with leave of court. See Fed. R. Civ. P. 15(a)(2). While “leave to amend should be 17 given freely” the court may deny amendment where “amendment would be futile.” Cervantes v. 18 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (internal citation omitted). 19 B. Review of Magistrate Judge Findings and Recommendations 20 The court reviews de novo the parts of findings and recommendations to which objections 21 are made. 28 U.S.C. § 636(b)(1). The court “may accept, reject, or modify, in whole or in part, 22 the findings and recommendations made by the magistrate judge.” Id. 23 C. Mootness Standards 24 “Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’ ” Campbell–Ewald Co. v. Gomez, __ 25 U.S. __, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). Thus, “[t]o qualify as a case fit for federal-court adjudication, an actual 26 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 27 U.S. 724, 732–33, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (internal quotation marks omitted). An exception exists, however, 28 for controversies that are “capable of repetition, yet evading 1 review.” Kingdomware Techs., Inc. v. United States, __ U.S. __, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016). “That exception 2 applies only in exceptional situations, where (1) the challenged action is in its duration too short to be fully litigated prior to 3 cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action 4 again.” Id. (internal quotation marks and brackets omitted). 5 Hamamoto v. Ige, 881 F.3d 719, 722 (9th Cir. 2018). The first prong of the “capable of 6 repetition, yet evading review” doctrine requires that the controversy “be of ‘inherently limited 7 duration.’” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014). This is 8 because “the ‘capable of repetition, yet evading review’ exception is concerned not with 9 particular lawsuits, but with classes of cases that, absent an exception, would always evade 10 judicial review.” Id. (emphasis in original). In analyzing the second prong, the court assumes 11 “‘that [litigants] will conduct their activities within the law and so avoid prosecution and 12 conviction as well as exposure to the challenged course of conduct.’” United States v. Sanchez- 13 Gomez, 138 S. Ct. 1532, 1541 (2018) (quoting O’Shea v. Littleton, 414 U.S. 488, 497 (1974). 14 III. ANALYSIS 15 The sole issue presented by both plaintiff’s motion to amend and his objections to the 16 magistrate judge’s findings and recommendations is whether his claims for declaratory and 17 injunctive relief fall within the “capable of repetition yet evading review” exception to the 18 mootness doctrine. The record shows plaintiff is serving a sentence of life without possibility of 19 parole. Plaintiff is currently housed at California State Prison, Solano2 and is no longer at Pelican 20 Bay State Prison, where he was when this action was filed. Plaintiff’s March 23, 2023 21 supplemental brief suggests plaintiff has not been subjected to Guard Once since May 2018, when 22 he was placed in administrative segregation for six weeks. See ECF No. 135 at 2. Most 23 significantly, on August 2, 2022, in Coleman v. Newsom, Case No. 90-0520 KJM DB P, this 24 court approved a settlement agreement between plaintiff-intervenor Christopher Lipsey and the 25 California Department of Corrections and Rehabilitation (CDCR) that effected several changes to 26 CDCR’s use of the Guard One system. Coleman v. Newsom, Case No. 90-0520 KJM DB P, ECF 27 2 https://inmatelocator.cdcr.ca.gov/Details.aspx?ID=V82078 (last visited April 21, 2023). 28 1 No. 7597.3 In particular, the settlement agreement requires CDCR to implement the following 2 measures systemwide in all units where Guard One is used: 3 a. Provide earplugs to all persons housed in a segregated housing unit where they are subject to welfare checks, without cost to these 4 persons, as part of their weekly supplies. 5 b. Issue a memorandum reiterating that, during security/welfare checks, Guard One pipes are used only in silent mode during first 6 watch; that the Guard One pipe-button contact be performed without banging or unnecessary noise; and that officers take all 7 steps necessary and appropriate to mitigate noise caused by officers’ gear during their first watch rounds. 8 c. Conduct and document systemwide training to appropriate 9 custody officers and supervisors on the performance of welfare checks, including but not limited to compliance with the policies in 10 Paragraph 13.b above. 11 d. Ensure that housing unit custody supervisors are also trained on the expectations for security and welfare checks, including the 12 expectation that they monitor their officers’ conduct during security and welfare checks. The Special Master will monitor first watch 13 welfare checks as appropriate, including with regard to the requirements in Paragraph 13.b above. 14 e. Investigate the remaining usable life of CDCR’s Guard One 15 equipment and software as well as current repair costs associated with the system in order to gauge when a replacement will be 16 necessary, and report the results to Plaintiffs’ Counsel and the Special Master. 17 f. Investigate whether the Guard One report printouts can confirm 18 whether a silent pipe was used for the checks, or whether a printout can be developed that so confirms. 19 g. Review the location of the Guard One buttons to determine 20 which buttons can be moved to minimize noise produced while still providing for accurate welfare check confirmation. 21 22 Id. at 9. The settlement agreement, which the parties fully executed on July 15, 2022, 23 provides for its implementation within ninety days of execution, “barring any reasonable 24 delays.” Id. at 10, 15-16. The court has not been notified of any delay in implementation. 25 26 27 3 The court takes judicial notice of this settlement agreement under Federal Rule of Evidence 201. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). 28 1 The settlement agreement provides for material changes in the administration of Guard 2 One in CDCR’s segregation units, particularly through the provision of ear plugs to inmates 3 housed in these units and reinforcement of procedures for noise mitigation. These provisions 4 were not in effect when plaintiff filed this action or when he was last in administrative 5 segregation. Therefore, even if he could show the possibility of future placement in 6 administrative segregation for non-disciplinary reasons and that such possibility warranted 7 application of the “capable of repetition yet evading review” exception to mootness, see Rico v. 8 Robertson, 2022 WL 17424331, slip op. at 2 (9th Cir. 2022), a finding this court need not make, 9 plaintiff cannot in the future be subjected to Guard One in the same way in which he has been 10 subjected to it in the past. 11 IV. CONCLUSION 12 For the foregoing reason, this action is moot and any attempt to further amend the 13 complaint is futile. 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s January 10, 2022 motion to amend is DENIED; 16 2. The unopposed September 13, 2022 motion to dismiss defendant Melton is 17 GRANTED: 18 3. Plaintiff’s claims for declaratory and injunctive relief are DISMISSED as 19 moot; and 20 4. The Clerk of the Court is directed to enter judgment and close this case. 21 DATED: April 24, 2023. 22 23 24 25 26 27 28