dissenting:

I respectfully dissent. I would remand to the district court for further fact-finding to determine whether the injunction aspect of this case is moot. The district court, as the majority acknowledges, determined that Wiggins’s claim was not moot because it was “capable of repetition, yet evad[ed] review.” The majority reverses on the basis that the possibility of conviction and return to maximum security at Soledad are too speculative, but in reaching this conclusion, the majority, itself, speculates about factual questions that simply are not resolved on the record before us. Yet, the majority is unwilling to remand to enable the district court to make findings that might remove the uncertainty.

Wiggins is in county jail awaiting trial on charges brought against him while on parole. We need the district court’s findings to enable us to assess the likelihood that Wiggins may be reincarcerated in the California state prisons and returned to Sole-dad. The district court expressed concern that Wiggins’s transfer from maximum security and from Soledad perhaps was in response to Wiggins’s litigation. We need the district court’s findings on this point also.

Our court has in the past recognized the factual nature of the “capable of repetition, yet evading review” test and has remanded under circumstances similar to those before us. See Chinese for Affirmative Action v. Lequennec, 580 F.2d 1006 (9th Cir.1978), cert. denied, 439 U.S. 1129 , 99 S.Ct. 1047 , 59 L.Ed.2d 90 (1979). In that case, we stated:

Id. at 1009 (citations omitted).

The “capable of repetition” prong of the mootness test could be satisfied by a showing that Wiggins is again in state custody and that transfer to Soledad and confinement in a maximum security facility is a reasonable expectation. In Vitek v. Jones, 445 U.S. 480, 486-87 , 100 S.Ct. 1254, 1260 , 63 L.Ed.2d 552 (1980), the plaintiff challenged the state’s procedures for involuntary transfers of prisoners to mental hospitals. After filing the action, the plaintiff was released and later reincarcerated in prison for violating his parole. The district court found that the plaintiff could again be transferred to a mental hospital. Based on this, the Supreme Court held the case was not moot, stating, “[I]t is not ‘absolutely clear,’ absent the injunction, ‘that the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Id. at 487 , 100 S.Ct. at 1260 (quoting United States v. Concentrated Phosphate Export Association, Inc., 393 U.S. 199, 203 , 89 S.Ct. 361, 364 , 21 L.Ed.2d 344 (1968)).

Similarly, in Withers v. Levine, 615 F.2d 158, 161 (4th Cir.), cert. denied, 449 U.S. 849 , 101 S.Ct. 136 , 66 L.Ed.2d 59 (1980), the court held that a prisoner’s challenge, alleging inadequate prison procedures to protect against sexual assaults, was capable of repetition despite the fact that the *1013 plaintiff had been transferred to another institution. The court said:

Id. at 161; see also Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir.1975) (prisoner, alleging prison mail censorship, allowed to continue action despite transfer to another prison because state officials “were unable to advise that appellant would not be returned to the Reidsville Prison”).

As to the “evading review” prong of the test, I share the concern expressed in the district court’s observation that it is “too convenient to transfer a prisoner out of an institution when he files a complaint, and render it moot.” The length of confinement in the maximum security unit at Sole-dad is within the discretion of prison officials. Thus, such confinement is of limited duration as to any prisoner, and any claim such as Wiggins’s brought by a maximum security prisoner may evade review. A case should not be rendered moot simply by virtue of a state defendant’s control over a plaintiff’s status. Cf. Sibron v. New York, 392 U.S. 40, 53 , 88 S.Ct. 1889, 1897 , 20 L.Ed.2d 917 (1968) (criminal defendant, challenging state stop and frisk law, had served his sentence prior to appeal being heard; state statute prohibited him from seeking bail pending appeal; Court stated: “[A] State may not effectively deny a convict access to its appellate courts until he has been released and then argue that his case has been mooted by his failure to do what it alone prevented him from doing.” (footnote omitted)).

In the damage aspect of the case, the state, by declining to contest on appeal the unconstitutionality of the library access, nicely avoids review of everything except the allowable amount of nominal damages. The majority, by refusing to remand for findings of fact, nicely avoids review of the mootness issue.

I would remand to allow the district court to make a proper record.