OpenJurist

917 F2d 566 Pratt v. Rowland

917 F.2d 566

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Elmer PRATT, Plaintiff-Appellee,
v.
James ROWLAND, Director of Department of Corrections;
Daniel Vasquez, Warden of San Quentin; Robert Borg, Warden,
Warden of Folsom Prison; Robert Patterson, Exec. Officer;
David Brown, Commissioner Board of Prison Term; Rudolph
Castro, Commissioner Board of Prison Term; Edmund Tong,
Commissioner Board of Prison Term; James Spangler, Captain,
Corrections Officer; Terry Yearwood, Chief,
Classifications, Defendants-Appellants.

No. 89-16375.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 1990.
Nov. 2, 1990.

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.

1

MEMORANDUM*

2

California state prison officials appeal the district court's grant of a preliminary injunction ordering prisoner Elmer Pratt's return from Folsom to San Quentin prison. We dismiss the appeal as moot.

I.

3

Elmer Pratt brought suit under 42 U.S.C. Sec. 1983 against California state prison officials seeking injunctive relief and damages. Pratt alleged that prison officials transferred him from San Quentin to Folsom without notice or hearing in violation of his rights to due process, to be free from retaliatory action, and to be free from cruel and unusual punishment.

4

Pratt claimed that prison officials transferred him to Folsom in retaliation for exercising his first amendment rights, and that his transfer to Folsom created a serious risk of harm to his personal safety in violation of the eighth amendment.

5

The district court concluded that Pratt had established a likelihood of success on the merits of both claims and that the risk to his life outweighed the state's interest in prison management. Accordingly, on September 28, 1989, the district court issued a preliminary injunction requiring Pratt's return to San Quentin.1

II.

6

Appeals in cases involving preliminary injunctions are moot when no order of the appellate court could affect the parties' rights with respect to the injunction. Honig v. Students of Cal. School for the Blind, 471 U.S. 148, 149, 105 S.Ct. 1820, 1821, 85 L.Ed.2d 114, 116 (1985) (appeal from injunction ordering seismic tests mooted when tests ordered were carried out); University of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 1835, 68 L.Ed.2d 175, 182 (1981) ("[T]he question whether a preliminary injunction should have been issued here is moot, because the terms of the injunction ... have been fully and irrevocably carried out."). "The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. If we can grant such relief, the matter is not moot." Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir.1986).

7

Because prison officials have fully complied with the order to "return plaintiff from the California State Prison at Folsom to the California State Prison at San Quentin," no order of this court could affect the parties' rights with respect to the specific injunction under review. Pratt cannot now be "unreturned."

8

Appellants argue that the appeal is not moot because the district court's determination that Pratt cannot safely be housed at Folsom limits their ability to place him there for any reason. However, in ruling on the request for preliminary relief, the district court made no binding findings of fact with respect to whether Pratt could ever be safely housed at Folsom. Nor does the injunction purport to prohibit Pratt's future transfer to Folsom; it simply orders that "Defendants shall return plaintiff from the California State Prison at Folsom to the California State Prison at San Quentin."2

9

The appeal is accordingly moot. DISMISSED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

1

Following Pratt's return to San Quentin, he sought to amend the preliminary injunction to prohibit his transfer to the prison at Tehachapi. The district court denied this motion. Prison officials subsequently transferred Pratt to Tehachapi, where he remains

2

Indeed, Pratt's counsel acknowledged at oral argument that the preliminary injunction does not bar a transfer back to Folsom