917 F2d 566 Cano v. Lewis

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Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Frank CANO, Plaintiff-Appellant,
Samuel LEWIS, et. al., Defendants-Appellees.

No. 90-15266.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 26, 1990.

Before Hug, Nelson and Leavy, Circuit Judges.

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Frank Cano, a former Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. Sec. 1983 action.1 Cano contends that the district court erred in determining that 1) his request for injunctive and declaratory relief was moot, and 2) he did not suffer any damages as a result of defendants cutting his hair against his religious beliefs. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.


Cano filed his civil rights complaint alleging the Arizona Department of Corrections' (ADOC) policy requiring him to cut his hair violated his First Amendment right to freedom of religion. Cano alleged that because he was one-quarter Native American, his hair was sacred and it would constitute a sacrilege to cut it. When Cano could not prove his religious ancestry, prison officials forced him to cut his hair. Shortly thereafter, the ADOC changed its grooming policy to allow inmates to grow their hair as long as they wished.


The district court dismissed Cano's request for injunctive relief as moot once ADOC changed its policy because Cano would no longer be subject to any alleged violations of his first amendment rights. Further, the district court determined that Cano did not suffer any monetary damages as a result of having his hair cut by the prison officials and dismissed his request for compensatory damages.


Federal courts lack jurisdiction to decide a case if it is moot. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir.1985), cert. denied, 475 U.S. 1019 (1986). A case is moot when "the issues are no longer live or the parties lack a legally cognizable interest in the outcome" and when "a court's decision will no longer have an impact on the plaintiff." Id. at 1338-39. Because ADOC changed its grooming policy to allow inmates to grow their hair as long as they like, there is no allegedly constitutionally violative conduct occurring for this court to enjoin or declare invalid. Therefore, Cano's request for equitable relief is moot. See id. Because Cano sought compensatory damages in addition to declaratory and injunctive relief, however, his entire appeal is not moot. See Allen v. Board of Pardons, 792 F.2d 1404, 1408 n. 2 (9th Cir.1986), aff'd, 482 U.S. 369 (1987).


In April of 1988, Cano was advised by prison officials that in accordance with ADOC policy, he would have to cut his hair because it was too long. Cano refused, claiming that cutting his hair violated his religious beliefs. Prison officials then advised Cano that in order to receive an exemption from ADOC policy, he would have to prove his religious ancestry. Cano was given a disciplinary hearing at which he did not provide any documentation that he was a Native American. Shortly thereafter, in May of 1988, prison officials cut Cano's hair.


Generally, prison regulations that infringe on an inmate's practice of his religion are valid if they are "reasonably related to legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987). In this case, however, it is not necessary to determine whether the regulation was in fact valid because Cano failed to prove a violation of his rights.

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Cano failed to produce any evidence of his religious ancestry to prison officials, although he was advised of the requirement to produce such documentation. Cano did eventually provide a letter from a Quechan tribal member stating that Cano's mother, and hence Cano, was a Native American. The letter, however, is dated August 30, 1988, after Cano's hair had been cut, and was never given to the prison officials. Therefore, because Cano did not prove his religious ancestry to the prison officials, he has failed to show any violation of his constitutional rights and thus, he is not entitled to compensatory damages.


Appellees request an award of attorneys fees and costs pursuant to 42 U.S.C. Sec. 1988. In a civil rights case, fees may be awarded against an unsuccessful plaintiff only if his action is "meritless in the sense that it is groundless or without foundation." Hughes v. Rowe, 449 U.S. 5, 14 (1980); Dooley v. Reiss, 736 F.2d 1392, 1396 (9th Cir.), cert. denied, 469 U.S. 1038 (1984). Although we affirm the district court's dismissal of Cano's action, his complaint presented important issues for this court to consider which were not without foundation. See Dooley, 736 F.2d at 1396. Each party is to bear its own costs.




The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 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 9th Circuit R. 36-3


Cano was released from prison some time after he filed his notice of appeal