Blackie Alvarez v. Jean Hill , 667 F.3d 1061 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLACKIE ALVAREZ, 
Plaintiff-Appellant,
v. No. 10-35865
JEAN HILL; MAX WILLIAMS; MITCH
MORROW; JUDY GILMORE; STEVE  D.C. No.
3:04-CV-00884-BR
FRANKE; TOM O’CONNER; TOM
OPINION
ARMSTRONG; STEVE BRABB; BRAD
CAIN; SONNY RIDER; SONIA HOYT,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
October 12, 2011—Portland, Oregon
Filed January 20, 2012
Before: David M. Ebel,* Marsha S. Berzon, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Ebel
*The Honorable David M. Ebel, Senior Circuit Judge for the Tenth Cir-
cuit, sitting by designation.
615
ALVAREZ v. HILL 617
COUNSEL
P. Andrew McStay, Jr., Davis Wright Tremaine LLP, Port-
land, Oregon, for the plaintiff-appellant.
Mary H. Williams, Solicitor General, and Carolyn Alexander,
Senior Assistant Attorney General, Salem, Oregon, for the
defendants-appellees.
618 ALVAREZ v. HILL
OPINION
EBEL, Circuit Judge:
The question presented here is what relief is available to
Plaintiff-Appellant Blackie Alvarez, a former inmate in the
Oregon Department of Corrections (“ODOC”), on claims
alleging that ODOC employees substantially burdened the
practice of his religion in violation of the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§§ 2000cc to 2000cc-5. Money damages are not available
under RLUIPA against state officials sued in their official
capacity. And, because the ODOC has released Alvarez from
its custody, his claims for declaratory and injunctive relief are
moot. Therefore, having jurisdiction pursuant to 28 U.S.C.
§ 1291, we AFFIRM the district court’s dismissal of Alva-
rez’s claims.
BACKGROUND
In June 2004, Alvarez sued several ODOC officials in their
official capacity, alleging, among other things, that they were
substantially burdening Alvarez’s practice of his Native
American religion.1 The district court granted the ODOC offi-
cials summary judgment, but this court remanded Alvarez’s
claims for further consideration under RLUIPA. Alvarez v.
Hill, 518 F.3d 1152, 1154-55, 1159 (9th Cir. 2008). On
remand, the district court again granted the ODOC officials
summary judgment and dismissed Alvarez’s RLUIPA claims,
ruling: 1) money damages are not available under RLUIPA
against state officials sued in their official capacity; and 2) in
light of Alvarez’s release from ODOC custody, his claims for
declaratory and injunctive relief are moot. Alvarez appeals,
challenging both determinations.
1
Although Alvarez originally sued the ODOC employees in both their
official and individual capacities, the only claims at issue in this appeal are
those Alvarez brought against the ODOC employees in their official
capacity.
ALVAREZ v. HILL 619
DISCUSSION
I. Oregon’s sovereign immunity bars Alvarez’s RLUIPA
claims for money damages against Defendants sued in
their official capacity
We review de novo questions of Eleventh Amendment sov-
ereign immunity. See Holley v. Cal. Dep’t of Corr., 599 F.3d
1108, 1111 (9th Cir. 2010).
[1] The Supreme Court, in Sossamon v. Texas, held that
money damages under RLUIPA are not available against
states because of their sovereign immunity. See 131 S. Ct.
1651, 1655 (2011). And, “[f]or sovereign-immunity purposes,
we treat [a] suit against state officials in their official capaci-
ties as a suit against the state.” Holley, 599 F.3d at 1111.
Therefore, the district court did not err in dismissing Alva-
rez’s claims for money damages.
II. Alvarez’s claims for declaratory and injunctive relief are
moot
Mootness presents a question of law reviewed de novo. See
Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th
Cir. 2011).
[2] Article III of the federal constitution “restricts federal
courts to the resolution of cases and controversies,” Davis v.
Fed. Election Comm’n, 554 U.S. 724, 732 (2008), and
requires that “a justiciable case or controversy . . . remain
extant at all stages of review,” United States v. Juvenile Male,
131 S. Ct. 2860, 2864 (2011) (per curiam) (internal quotation
marks omitted). A claim is moot “when the issues presented
are no longer live or the parties lack a legally cognizable
interest in the outcome.” U.S. Parole Comm’n v. Geraghty,
445 U.S. 388, 396 (1980) (internal quotation marks omitted).
[3] Here, without his damages claims, Alvarez no longer
has a legally cognizable interest in the outcome of this case.
620 ALVAREZ v. HILL
Alvarez was an inmate in the ODOC’s custody in 2004 when
he initiated this litigation, alleging ODOC officials were sub-
stantially burdening the practice of his religion. But ODOC
released Alvarez from custody in 2007. “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 certified as a class action.” Dilley v.
Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995). The same is true
for claims seeking declaratory relief. See Rhodes v. Stewart,
488 U.S. 1, 2-4 (1988) (per curiam). The reason is that the
released inmate is no longer subject to the prison conditions
or policies he challenges. See id. at 4; see also Incumaa v.
Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007) (citing cases
from several circuits).
Once an inmate is removed from the environment in
which he is subjected to the challenged policy or
practice, absent a claim for damages, he no longer
has a legally cognizable interest in a judicial decision
on the merits of his claim. Any declaratory or injunc-
tive relief ordered in the inmate’s favor in such situa-
tions would have no practical impact on the inmate’s
rights and would not redress in any way the injury he
originally asserted. And the [released] inmate has no
further need for such declaratory or injunctive relief,
for he is free of the policy or practice that provoked
his lawsuit in the first place.
Incumaa, 507 F.3d at 287.
Alvarez concedes this general proposition, but argues that
his claims fall within one of two mootness exceptions: 1) his
claims are capable of repetition, yet will continue to evade
review; and 2) his claims challenge ongoing prison policies to
which other inmates will remain subject.
ALVAREZ v. HILL 621
A. Alvarez’s claims do not fall within the mootness
exception for claims that are capable of repetition yet
evade review
[4] The mootness exception for claims that are capable of
repetition, yet evade review, “is limited to extraordinary cases
in which (1) the duration of the challenged action is too short
to be fully litigated before it ceases, and (2) there is a reason-
able expectation that the plaintiff will be subjected to the
same action again.” C.F. ex rel. Farnan v. Capistrano Unified
Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011) (internal quota-
tion marks, alteration omitted), petition for cert. filed (U.S.
Dec. 14, 2011) (Nos. 11-759, 11A452). But there is no indica-
tion that Alvarez will again be subjected to the challenged
prison policies.
[5] Alvarez claims, to the contrary, that it is reasonably
likely that he will be returned to ODOC’s custody in the
future and, thus, again be subjected to the challenged prison
policies and conditions. But because Alvarez has now com-
pleted his prison sentence and his term of post-incarceration
supervision, the only way that he might be returned to ODOC
custody is if he commits another crime. That possibility, how-
ever, is too speculative a basis on which to conclude that
Alvarez’s claims are capable of repetition. See United States
v. Howard, 480 F.3d 1005, 1009 (9th Cir. 2007)
(“acknowledg[ing] that we cannot assume that criminal con-
duct will be recurring on the part of these defendants”);
Reimers v. Oregon, 863 F.2d 630, 632 & n.4 (9th Cir. 1988)
(holding that plaintiff, who had been released from prison,
had no reasonable expectation of returning to custody because
such a return would occur only if he committed an additional
criminal act, but he was “able, and indeed is required by law,
to prevent this from occurring”); cf. O’Shea v. Littleton, 414
U.S. 488, 495-97 (1974) (holding that plaintiffs failed to
allege an actual or threatened injury by asserting that they
might be subject to the challenged criminal justice system in
the future; anticipating whether and when a party will be
622 ALVAREZ v. HILL
charged with a crime is too speculative and conjectural, and
the court assumes, in any event, that plaintiffs “will conduct
their activities within the law and so avoid prosecution and
conviction”).
B. The mootness exception recognized in United States v.
Howard does not apply here to save Alvarez’s claims
challenging ongoing prison policies
[6] In United States v. Howard, we recognized a variation
on the mootness exception for claims capable of repetition,
yet evading review. See 480 F.3d at 1009-10. Howard’s
exception applies where, although there is no reasonable like-
lihood that the plaintiff himself will be subjected to the same
alleged harm in the future, he is, nevertheless, challenging
ongoing policies to which others will continue to be subject.2
Alvarez contends this exception applies here. We disagree.
Howard considered claims brought by several criminal
defendants, through their appointed counsel, the Federal Pub-
lic Defender, and in the context of their criminal prosecutions,
challenging a federal policy requiring all defendants making
their initial appearance in a criminal case to be shackled. Id.
at 1008-10. By the time the Ninth Circuit considered these
claims on review, the pretrial criminal proceedings pertaining
to these individual defendants had ended. Id. at 1009. Never-
theless, Howard held that these claims were not moot because
they were capable of repetition, yet would continue to evade
review. Id. at 1009-10. In drawing that conclusion, Howard
noted that, although the court could not assume that these par-
ticular defendants would be charged in the future with other
crimes, it was certain that the challenged policy would apply
in the future to other criminal defendants. Id. And when those
defendants challenged the policy, their claims, too, would
evade review. Id. at 1010.
2
The district court assumed that at least some of the prison policies
Alvarez challenged in this case remain in effect. We make the same
assumption.
ALVAREZ v. HILL 623
[7] We have never applied Howard beyond such circum-
stances involving short-lived pretrial proceedings in criminal
prosecutions, where civil class actions would not be condu-
cive to obtaining the relief sought. See id. at 1010. But even
if Howard does apply more broadly, it would not apply in this
case to Alvarez’s RLUIPA claims challenging prison policies
affecting the conditions of his post-conviction incarceration.
While we have assumed, for purposes of this appeal, that at
least some of the policies and practices Alvarez challenged
remain ongoing and, thus, will continue to affect current
ODOC inmates, those inmates can bring their own RLUIPA
claims challenging those policies. There is nothing in the
record to suggest that these other inmates would generally be
unable to litigate their RLUIPA claims to completion, and to
do so as a class action if they so chose. For these reasons,
therefore, the district court did not err.
CONCLUSION
For these reasons, we affirm the district court’s dismissal
of Alvarez’s RLUIPA claims seeking money damages as
barred by sovereign immunity and his claims seeking declara-
tory and injunctive relief as moot.
AFFIRMED.