896 F2d 555 Hickman v. B Dowdle

896 F.2d 555

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Ernest HICKMAN, Plaintiff-Appellant,
v.
Earl B. DOWDLE, ASPC-Safford, Attorney General of the State
of Arizona, Defendants-Appellees.

No. 88-1727.

United States Court of Appeals, Ninth Circuit.

Submitted July 24, 1989.*
Decided Feb. 14, 1990.

Before CHOY, ALARCON and CANBY, Circuit Judges.

Advertisement
view counter
1

MEMORANDUM**

2

Ernest Hickman, an Arizona state prisoner appearing pro se and in forma pauperis, appeals from the district court's order dismissing his Sec. 1983 complaint against the attorney general of Arizona and the warden of the Arizona State Penitentiary at Safford. We vacate the judgment and remand with instructions to dismiss the case as moot.

3

In his Complaint, Hickman sought reinstatement of his prison visitation privileges, which he claimed the warden had discontinued without justification, thereby violating Hickman's rights under the first, eighth and fourteenth amendments to the constitution.1 Between the time the district court dismissed the Complaint and the time the appeal reached this court, however, Hickman regained his visitation privileges. See Appellee's Motion To Dismiss, Appendices A, B, C, D. That development makes the controversy between Hickman and the defendants no longer "live," and renders this appeal moot. Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam) (quotation omitted). Because Hickman now enjoys the privileges he sought, this court cannot grant " 'any effective relief in the event that it decides the matter ... in his favor.' " Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir.1988) (quoting Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir.1986)). Consequently, Hickman's appeal is moot. Holloway v. United States, 789 F.2d 1372, 1373 (9th Cir.1986).2

4

The judgment of the district court is vacated and the case is remanded with instructions to dismiss the action as moot. United States v. Munsingwear Inc., 340 U.S. 36, 39-40 (1950).

5

VACATED AND REMANDED WITH INSTRUCTIONS TO DISMISS AS MOOT.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

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

Advertisement
view counter
1

On appeal, Hickman asserts for the first time a prayer for monetary damages. Compare Complaint at 3 with Brief of Appellant at 11. We decline to consider this request because it was not presented to the district court. United States v. Greger, 716 F.2d 1275, 1277 (9th Cir.1983), cert. denied, 465 U.S. 1007 (1984). This case does not qualify under any of the exceptions to the general rule that we do not review issues unless they were before the trial court. No new law has come into effect since the lower court issued its decision; the issue presented is not purely one of law; and review is not necessary to prevent a miscarriage of justice. See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986), cert. denied, 481 U.S. 1050 (1987). Nor is the lenient application of this rule to pro se filings appropriate here, where Hickman attempts to demand a form of relief entirely different from what he sought in the district court. See Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir.1987) (purpose of leniency is to allow pro se plaintiff to cure pleading deficiencies)

2

If the situation Hickman complained of were "capable of repetition, yet evading review," we might have been able to consider this appeal despite the mootness of Hickman's actual claim. Reimers, 863 F.2d at 632. But Hickman is free to bring another action if prison authorities unlawfully discontinue his visitation privileges in the future; if he seeks monetary damages, any appeal from an unfavorable disposition below will not be mooted, as the instant claim was, by subsequent restoration of the privileges