Michelle-Lael Norsworthy v. Jeffrey Beard

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE-LAEL B. NORSWORTHY, No. 15-15712 Plaintiff-Appellee, D.C. No. v. 3:14-cv-00695-

JST

JEFFREY BEARD, CDCR Secretary; M. E. SPEARMAN, CTF Warden;

RAYMOND J. COFFIN; JARED OPINION

LOZANO; A. ADAMS, Chief Medical Executive of CTF, Soledad, CA; A.

NEWTON; DAVID VAN LEER; L. D.

ZAMORA, CDCR Appeals Chief, Sacramento, CA, Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Submitted August 13, 2015* San Francisco, California

Filed October 5, 2015

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: Stephen Reinhardt, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge Callahan

SUMMARY**

Prisoner Civil Rights

The panel dismissed as moot an appeal from the district court’s issuance of a preliminary injunction ordering the California Department of Corrections and…

Plaintiff Michelle Norsworthy, a transgendered woman, has been incarcerated in the California prison system since 1987. In 2000, she was diagnosed with gender' dysphoria and, several years thereafter, petitioned the California Department of Corrections and Rehabilitation (“CDCR”) for sex reassignment surgery, a procedure that would transform her sex characteristics from male to female. After CDCR denied the petition, Norsworthy sued, alleging that the denial amounted to cruel and unusual punishment under the Eighth Amendment. The district court issued a preliminary injunction ordering the defendants to provide Norsworthy with sex reassignment surgery. CDCR appealed under 28 U.S.C. § 1292 (a)(1). This court stayed the preliminary injunction pending appeal.

While this appeal was pending— one day prior to oral argument — Norswor- *1092 thy was released on parole from the California prison system. The defendants contend that the case became moot once CDCR released Norsworthy. We agree. “An inmate’s release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison’s policies unless the suit has been classified as a…

concurring in the dismissal and dissenting from the remand:

Everyone agrees that this appeal is moot. Ms. Norsworthy has been released from, custody by the California Department of Corrections and Rehabilitation (“CDCR”). Accordingly, in addition to dismissing this appeal we should vacate the mandatory preliminary injunction ordering CDCR to provide Ms. Norsworthy with sex reassignment surgery.

The majority’s remand is based on legal error and unnecessarily prolongs this litigation. The majority admits that vacatur is appropriate unless “the appellant has by his own act caused the dismissal of the appeal.” Dilley v. Gunn, 64 F.3d 1365, 1369-70 (9th Cir.1995). The majority does not say that this has happened; it only protests that the facts surrounding Ms. Norsworthy’s release “are not sufficiently developed.”

This approaches sophistry. The’process by which the Parole Board determined that Ms. Norsworthy’s confinement was no longer required and the Governor’s review of that decision are set forth fully in the documents that have been submitted to the Court. There is no real doubt that the Parole Board and the Governor are not subject to or responsible to the CDCR.

Moreover,…