Nelson v. Heiss, 271 F.3d 891 (9th Cir. 2001). · Go Syfert
Nelson v. Heiss, 271 F.3d 891 (9th Cir. 2001). Cases Citing This Book View Copy Cite
174 citation events (174 in the last 25 years) across 18 distinct courts.
Strongest positive: Chris Grindling v. Tyrone Spears; et al. (hid, 2026-05-15)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Chris Grindling v. Tyrone Spears; et al.
D. Haw. · 2026 · quote attribution · 1 verbatim quote · confidence high
hen a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.
discussed Cited as authority (verbatim quote) Mikeal Stine v. B. Von Blankensee
9th Cir. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
hen a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.
discussed Cited as authority (verbatim quote) Norton v. Derr
D. Haw. · 2023 · quote attribution · 1 verbatim quote · confidence high
hen a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.
discussed Cited as authority (verbatim quote) Hamilton v. Moseley
S.D. Cal. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
hen a prisoner is moved from a prison, his action 27 will usually become moot as to conditions at that particular facility.
discussed Cited as authority (verbatim quote) (PC) Maher v. Sacramento County Correctional Health Services
E.D. Cal. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is true that when a prisoner is moved from a prison, his action will usually become 16 moot as to conditions at that particular facility.
discussed Cited as authority (verbatim quote) Abd-Rahmaan v. Wahikoa
D. Haw. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is true that when a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.
discussed Cited as authority (verbatim quote) Tremaine Carroll v. State of California
C.D. Cal. · 2022 · quote attribution · 1 verbatim quote · confidence high
hen a prisoner is moved 2 from a prison, his action will usually become moot as to conditions at that 3 particular facility.
discussed Cited as authority (verbatim quote) Tremaine Carroll v. State of California
C.D. Cal. · 2022 · quote attribution · 1 verbatim quote · confidence high
hen a prisoner is moved 2 from a prison, his action will usually become moot as to conditions at that 3 particular facility.
discussed Cited as authority (verbatim quote) Scaperotta v. Oahu Community Correctional Center
D. Haw. · 2021 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is true that when a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.
discussed Cited as authority (verbatim quote) (PC) Jones v. California Medical Facility
E.D. Cal. · 2019 · quote attribution · 1 verbatim quote · confidence high
when a prisoner is moved 3 from a prison, his action will usually become moot as to conditions at that particular facility
cited Cited as authority (rule) (PC) Grissom v. Keenan
E.D. Cal. · 2025 · confidence medium
Tiedemann v. von 27 Blanckensee, 72 F.4th 1001, 1008 (9th Cir. 2023); Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 28 2001).
discussed Cited as authority (rule) Collett v. Mason County
W.D. Wash. · 2025 · confidence medium
Dkts. 10 165 at 10–11; Dkt. 168 at 5–6; Dkt. 172 at 3–4. 11 “[W]hen a prisoner is moved from a prison, his action will usually become moot as to 12 conditions at that particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley 13 v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (“An inmate’s release from prison while his claims 14 are pending generally will moot any claims for injunctive relief relating to the prison’s policies 15 unless the suit has been certified as a class action.”).
discussed Cited as authority (rule) Simon v. Bostic
S.D. Cal. · 2024 · confidence medium
The 3 statute is commonly tied to actions brought through 42 U.S.C. § 1983 , see Nelson v. Heiss, 4 271 F.3d 891, 893 (9th Cir. 2001), and may be implicated by a declaratory judgment action 5 enabled by 28 U.S.C. § 2201 (a).
discussed Cited as authority (rule) (PC) Roberts v. Newsom
E.D. Cal. · 2024 · confidence medium
Turner v. Rogers, 564 U.S. 431 , 439- 13 40 (2011). “[W]hen a prisoner is moved from a prison, his action will usually become moot as to 14 conditions at that particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001). 15 Here, Plaintiff’s first amended complaint identified Defendants Torres, Gilman, 16 Delgadillo, Lemus, Warden Houston, and Farooq as employed at CIM.
discussed Cited as authority (rule) Collett v. Hanson
W.D. Wash. · 2024 · confidence medium
Dkts. 22, 42. “[W]hen a prisoner is moved from a prison, 15 his action will usually become moot as to conditions at that particular facility.” Nelson v. Heiss, 16 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (“An 17 inmate’s release from prison while his claims are pending generally will moot any claims for 18 injunctive relief relating to the prison’s policies unless the suit has been certified as a class 19 action.”).
discussed Cited as authority (rule) Driver v. Naranjo
S.D. Cal. · 2024 · confidence medium
“When a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.” Nelson v. 27 Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (citing Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995)); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (claims for injunctive relief related to conditions of 28 1 dismiss[al],” Alvarez v. Hill, 518 F.3d 1152 , 1157‒58 (9th Cir. 2008), so long as it contains 2 factual allegations sufficient to state a plausible claim for relief.
cited Cited as authority (rule) (PC)Yandell v. Washington
E.D. Cal. · 2023 · confidence medium
See Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013); 28 Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Johnson v. Moore, 948 F.2d 517, 519 (9th 1 Cir. 1991).
discussed Cited as authority (rule) Wood v. United States of America (2×)
W.D. Wash. · 2023 · confidence medium
However, “[w]hile a prisoner’s transfer will 17 naturally moot claims for prospective relief ‘as to conditions at [a former] particular facility,’ a 18 prison transfer does not defeat jurisdiction where a prisoner’s injury stems from a system-wide 19 policy.” Tiedemann v. von Blanckensee, 72 F.4th 1001 , 1008 (9th Cir. 2023) (quoting Nelson v. 20 Heiss, 271 F.3d 891, 897 (9th Cir. 2001)). 21 Wood’s second amended complaint focuses on injuries he alleges he sustained while in 22 custody at FDC SeaTac.
discussed Cited as authority (rule) Kenneth Tiedemann v. Barbara Von Blanckensee (2×)
9th Cir. · 2023 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001).
cited Cited as authority (rule) Dempsey v. Wild Side Specialty Tours, LLC
D. Haw. · 2022 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001).
discussed Cited as authority (rule) (PC) Newsome v. Loterzstain
E.D. Cal. · 2022 · confidence medium
ECF No. 73 at 1. “[W]hen a prisoner is 1 moved from a prison, his action will usually become moot as to conditions at that particular 2 facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (internal citations omitted).
cited Cited as authority (rule) Ehart v. Lahaina Divers, Inc.
D. Haw. · 2022 · confidence medium
It is well established that “issues of statutory construction are questions of law.” Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001); Barona Grp. of Capitan Grande Band of Mission Indians v. Am.
cited Cited as authority (rule) (PC) Foster v. Tulare County Sheriff's Department
E.D. Cal. · 2022 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365 , 9 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
discussed Cited as authority (rule) Lausteveion Johnson v. Renee Baker
9th Cir. · 2022 · confidence medium
While the transfer of an inmate to a new prison will usually moot a challenge to conditions at a “particular facility,” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001), that is not true when the inmate attacks a “system wide” policy.
discussed Cited as authority (rule) (PC) Millare v. Virrey
E.D. Cal. · 2022 · confidence medium
A transfer or release will moot a claim for injunctive 19 relief unless “the plaintiff has a reasonable expectation of returning to that prison,” Dilley v. 20 Gunn, 64 F.3d 1365, 1369 (9th Cir. 1995), or “the policy pursuant to which the alleged violation 21 occurred was ‘system wide’ and one of the defendants was in charge of the policy,” Walker v. 22 Beard, 789 F.3d 1125, 1132 (9th Cir. 2015) (quoting Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 23 2001)). 24 Defendants argue that plaintiff’s injunctive claims are moot because plaintiff was 25 transferred from DVI and “has al…
discussed Cited as authority (rule) (PC) Brown v. Reilly
E.D. Cal. · 2021 · confidence medium
Shortly after filing the motion, plaintiff 25 filed a notice of change of address that indicated he had been transferred to CSP-Corcoran, ECF 26 No. 21, and the file reflects that he has since been transferred to California Health Care Facility. 27 Because plaintiff is no longer housed at CSP-Sacramento and he has not demonstrated a 28 reasonable expectation of being returned to that facility, the motion is moot and should be denied. 1 Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (“[W]hen a prisoner is moved from a prison, 2 his action [for injunctive relief] will usually become moot a…
discussed Cited as authority (rule) Rogers v. Department of Children Youth and Families
W.D. Wash. · 2021 · confidence medium
A plaintiff may prove an 2 injury is likely to recur by demonstrating: (1) “the defendant had, at the time of the injury, a 3 written policy, and that the injury ‘stems from’ that policy;’” or (2) “the harm is part of a ‘pattern 4 of officially sanctioned behavior, violative of the plaintiffs’ [federal] rights.’” Id. at 5 998 (quoting Mayfield, 599 F.3d at 971 ). 6 In addition, where a plaintiff has been removed from the detention facility that is the 7 subject matter of their complaint, “his action will usually become moot as to conditions at that 8 particular facility.�…
discussed Cited as authority (rule) (PC) Morgan v. Sacramento Co. Dept. of Health Service
E.D. Cal. · 2020 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (“[W]hen a prisoner is 25 moved from a prison, his action will usually become moot as to conditions at that particular 26 facility” (citing Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995))); Johnson v. Moore, 948 27 F.2d 517, 519 (9th Cir. 1991) (claims for injunctive relief related to conditions of confinement 28 were moot where prisoner was transferred to another facility and “demonstrated no reasonable 1 expectation of returning to [the original facility].” (citing Darring v. Kincheloe, 783 F.2d 874 , 876 2 (9th Cir. 1986))). …
discussed Cited as authority (rule) (PC) Polk v. Lattimore
E.D. Cal. · 2020 · confidence medium
No. 117 at 6.) Plaintiff does not allege any 13 current actions undertaken by defendant Baron that she seeks to enjoin and does not plead any 14 facts suggesting a reasonable expectation of being put in defendant Baron’s charge in the future.4 15 Even in the case relied upon by plaintiff, the Ninth Circuit found that when a prisoner is 16 transferred away from a prison, “action will usually become moot as to conditions at that 17 particular facility.” See Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (permitting only a 18 claim brought against the Director of Adult Institutions, not…
discussed Cited as authority (rule) (PC) Arrant v. Santoro
E.D. Cal. · 2020 · confidence medium
Nelson v. Heiss, 12 271 F.3d 891, 897 (9th Cir. 2001) (“[W]hen a prisoner is moved from a prison, his action will usually 13 become moot as to conditions at that particular facility” (citing Dilley v. Gunn, 64 F.3d 1365 , 1368-69 14 (9th Cir. 1995))); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (claims for injunctive relief 15 related to conditions of confinement were moot where prisoner was transferred to another facility and 16 “demonstrated no reasonable expectation of returning to [the original facility].” (citing Darring v. 17 Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986)))…
discussed Cited as authority (rule) O'Brien v. Murphy
S.D. Cal. · 2020 · confidence medium
(ECF 18 at 1, 5, 17.) 19 “It is true that when a prisoner is moved from a prison, his action will usually become 20 moot as to conditions at that particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th 21 Cir. 2001); see also Dilley, 64 F.3d at 1368 (Finding case for injunctive relief moot based 22 on the Plaintiff’s transfer to a different California prison).
cited Cited as authority (rule) Mobley v. Werholtz
Kan. Ct. App. · 2020 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 896-97 (9th Cir. 2001); Stewart v. Norwood, No. 16-3189-JAR- DJW, 2017 WL 4284971 , at *7 (D.
discussed Cited as authority (rule) Lloyd v. Buzell
W.D. Wash. · 2020 · confidence medium
A 2 plaintiff may prove that such an injury is likely to recur by showing: (1) “the defendant had, at 3 the time of the injury, a written policy, and that the injury ‘stems from’ that policy;’” or (2) “the 4 harm is part of a ‘pattern of officially sanctioned behavior, violative of the plaintiffs’ [federal] 5 rights.’” Id. (quoting Mayfield v. United States, 599 F.3d 964, 971 (9th Cir. 2010). “[W]hen a 6 prisoner is moved from a prison, his action will usually become moot as to conditions at that 7 particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001)…
discussed Cited as authority (rule) (PC) Hall v. County of Fresno
E.D. Cal. · 2020 · confidence medium
An inmate’s release from [jail] while his claims are pending generally will moot any claims 18 for injunctive relief relating to [the jail’s] policies, Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 19 2001), unless there is a reasonable expectation that the injury will occur again, see Dilley v. 20 Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (citing Weinstein v. Bradford, 423 U.S. 147, 149 , 96 21 S.Ct. 347, 348 , 46 L.Ed.2d 350 (1975) (per curiam).
discussed Cited as authority (rule) Torres v. Kernan
N.D. Cal. · 2020 · confidence medium
Even if the 17 allegations of the complaint are sufficient to state a claim for violation of § 5301, defendants are 18 entitled to qualified immunity because of the lack of clearly established law. 19 In Nelson v. Heiss, 271 F.3d 891, 894-96 (9th Cir. 2001), the Ninth Circuit reviewed an 20 inmate’s claim that California Department of Corrections and Rehabilitation (CDCR) officials 21 violated § 5301 by using his veterans’ benefits to pay for what were essentially overdrafts to his 22 prison trust account.
discussed Cited as authority (rule) (PC) Garrett v. Baker
E.D. Cal. · 2019 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (“[W]hen a prisoner is moved from a 14 prison, his action will usually become moot as to conditions at that particular facility” (citing 15 Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995))); Johnson v. Moore, 948 F.2d 517 , 519 16 (9th Cir. 1991) (claims for injunctive relief related to conditions of confinement were moot where 17 prisoner was transferred to another facility and “demonstrated no reasonable expectation of 18 returning to [the original facility].” (citing Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 19 1986)))…
discussed Cited as authority (rule) (PC) Hunt v. Lewis
E.D. Cal. · 2019 · confidence medium
Nelson 3 v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (“[W]hen a prisoner is moved from a prison, his 4 action will usually become moot as to conditions at that particular facility” (citing Dilley v. Gunn, 5 64 F.3d 1365, 1368-69 (9th Cir. 1995))); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) 6 (claims for injunctive relief related to conditions of confinement were moot where prisoner was 7 transferred to another facility and “demonstrated no reasonable expectation of returning to [the 8 original facility].” (citing Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986))).
discussed Cited as authority (rule) (PC) Howze v. Orozco
E.D. Cal. · 2019 · confidence medium
Injunctive Relief 21 “[W]hen a prisoner is moved from a prison, his action [for injunctive relief] will usually 22 become moot as to conditions at that particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th 23 Cir. 2001) (citing Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995)); Johnson v. Moore, 948 24 F.2d 517, 519 (9th Cir. 1991) (claims for injunctive relief related to conditions of confinement 25 were moot where prisoner was transferred to another facility and “demonstrated no reasonable 26 expectation of returning to [the original facility].” (citing Darring v. Kinche…
cited Cited as authority (rule) Stephen Williams v. E. Hazel
9th Cir. · 2018 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001).
cited Cited as authority (rule) Dennis Mize v. S. Tseng
9th Cir. · 2017 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001).
discussed Cited as authority (rule) Thomas Carlson v. Brian Duffy
9th Cir. · 2016 · signal: cf. · confidence medium
See Jones v. Williams, 297 F.3d 930, 934-35 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation.... ”); cf. Nelson v. Heiss, 271 F.3d 891, 894-97 (9th Cir. 2001) (explaining that 38 U.S.C. § 5301 (a) precludes. prison officials from placing holds on an inmate’s account, and that an inmate cannot assign his future Veteran’s Disability Benefits to pay for goods and services that he has received).
cited Cited as authority (rule) Quincy Sims v. M. Biter
9th Cir. · 2016 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir.2001).
discussed Cited as authority (rule) Timothy Hanna v. Ron Davis
9th Cir. · 2016 · confidence medium
See Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir.2012) (setting forth standard of review); Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir.2001) (“[W]hen a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.”).
cited Cited as authority (rule) Dennis Walker v. Beard
9th Cir. · 2015 · confidence medium
Id. at 897; see also Jordan v. Sosa, 654 F.3d 1012, 1028-29 (10th Cir.2011); Lehn v. Holmes, 364 F.3d 862, 871-72 (7th Cir.2004).
discussed Cited as authority (rule) Henry Hayes v. R. Bolen (2×) also: Cited "see"
9th Cir. · 2015 · confidence medium
Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir.2001).
discussed Cited as authority (rule) James Warren v. Chris Wyant
9th Cir. · 2014 · confidence medium
“It is true that when a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir.2001) (citing Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir.1995)).
cited Cited as authority (rule) Nyles Watson v. Gary Swarthout
9th Cir. · 2013 · confidence medium
Morrison v. Hall, 261 F.3d 896, 900 (9th Cir.2001) (summary judgment); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir.2001) (dismissal).
discussed Cited as authority (rule) Charles Caddell v. Helena Elderhousing, Inc.
9th Cir. · 2012 · confidence medium
Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.2003) (summary judgment); Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.2002) (res judicata); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir.2001) (Fed.R.Civ.P. 12(b)(6) dismissal).
cited Cited as authority (rule) Edwin Gonzalez v. John Doe
9th Cir. · 2012 · confidence medium
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003) (dismissal for failure to exhaust); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir.2001) (Fed.R.Civ.P. 12(b)(6) dismissal).
discussed Cited as authority (rule) Robert Bailey v. Patricia Leonhardt
9th Cir. · 2012 · confidence medium
See Farmer, 511 U.S. at 834 , 114 S.Ct. 1970 (only the unnecessary and wanton infliction of pain implicates the Eighth Amendment); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir.2001) (standard of review for dismissal under Fed.R.Civ.P. 12(b)(6)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000) (standard of review for dismissal under 28 U.S.C. § 1915A); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988) (order) (no “entitlement to a [prison] grievance procedure”).
Retrieving the full opinion text from the archive…
Tarza R. Nelson, Plaintiff-Appellant-Cross-Appellee
v.
Barbara Heiss K.W. Prunty, Warden James Gomez, Director of Corrections Does I Through X, Inclusive Sylvia H. Garcia, Defendants-Appellees-Cross-Appellants, and Does I Through X, Inclusive
00-55523.
Court of Appeals for the Ninth Circuit.
Nov 21, 2001.
271 F.3d 891
Cited by 61 opinions  |  Published

271 F.3d 891 (9th Cir. 2001)

TARZA R. NELSON, PLAINTIFF-APPELLANT-CROSS-APPELLEE,
v.
BARBARA HEISS; K.W. PRUNTY, WARDEN; JAMES GOMEZ, DIRECTOR OF CORRECTIONS; DOES I THROUGH X, INCLUSIVE; SYLVIA H. GARCIA, DEFENDANTS-APPELLEES-CROSS-APPELLANTS,
AND
DOES I THROUGH X, INCLUSIVE, DEFENDANT.

Nos. 00-55523, 00-55567

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted October 17, 2001[*]
Filed November 21, 2001

Tarza R. Nelson, Coalinga, California, for the plaintiff/ appellant/cross-appellee.

Diane de Kervor, Deputy Attorney General, San Diego, California, for the defendants/appellees/cross-appellants.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CV-98-00805-IEG

Before: Browning, Fernandez, and Fisher, Circuit Judges.

FERNANDEZ, Circuit Judge:

[*~891]1

Tarza Nelson brought this 42 U.S.C. &#167 1983 action against officials of the California Department of Corrections,[1] after holds were placed upon his inmate trust account. His principal contention was that 38 U.S.C. &#167 5301(a), which provides for the exempt status of veteran's benefits, was violated. The district court agreed, but determined that the Prison Officials were entitled to qualified immunity. It then granted their motion to dismiss. Fed. R. Civ. P. 12(b)(6). Both Nelson and the Prison Officials appeal. We affirm in part, reverse in part, and remand.

BACKGROUND

2

Nelson had an inmate trust account at Calipatria State Prison which was funded with payments of Veteran's Disability Benefits administered by the United States Veterans Administration. He could use that account to purchase items at the prison canteen and to pay for special services that he desired. That was accomplished by the use of a "Trust Account Withdrawal Order," which provided "I hereby request that my Trust Account be charged $_______ for the purpose stated below and authorize the withdrawal of that sum from my account."

3

On September 25, 1996, Nelson signed a trust account withdrawal order for $11.70 in order to pay for copies of his medical records, and on October 31, 1996, he signed another one for $181.50 to pay for dental appliances, for a total of $193.20 which he requested be withdrawn from his account. At the time, he did not have funds in the account to cover those purchases, but the prison did not "bounce " his withdrawal orders. Rather, it granted what it saw as a kind of overdraft protection, provided the goods and services, and placed a hold on the account so that it could be repaid when funds did arrive.

4

Even though Nelson himself had asked for the goods and services and authorized the withdrawal, he complained that the prison could not legally accommodate him in that way because the funds in question came from veteran's benefits. The Prison Officials disagreed, and the hold remained. Nelson then brought this action on the basis that 38 U.S.C. &#167 5301(a)[2] had been violated. The district court agreed, but it granted the Prison Officials qualified immunity and dismissed. These appeals followed.

STANDARDS OF REVIEW

[*~892]5

We review a dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) de novo. Bly-Magee v. California, 236 F.3d 1014, 1017 (9th Cir. 2001). We also review a district court's qualified immunity decision de novo. Robinson v. Prunty, 249 F.3d 862, 865-66 (9th Cir. 2001). Finally, issues of statutory construction are questions of law, which we review de novo. See Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001); Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).

DISCUSSION

6

The merits of Nelson's &#167 5301(a) claim and the Prison Officials' motion for qualified immunity are bound up together. That is because, as the Supreme Court stated in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001):

7

A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry . . . .

8

. . . [I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition . . . .

9

Id. at ___, 121 S. Ct. at 2156.[3] In Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc), we emphasized that:

10

In essence, at the first step, the inquiry is whether the facts alleged constitute a violation of the plaintiff's rights. If they do, then, at the second step, the question is whether the defendant could nonetheless have reasonably but erroneously believed that his or her conduct did not violate the plaintiff's rights.

11

Id. at 1074. Thus, we will first consider whether the prison officials violated &#167 5301(a), and then go on to the second step.[4]

A. Violation of &#167 5301(a)

12

Section 5301(a) was designed to protect veteran's benefits against their creditors so that the veterans themselves could spend those funds as they saw fit when they actually got them, and not before. Thus, it reads, in pertinent part:

[*~893]13

Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.

14

As far as we know, this provision has not been construed previously, but it is not overly murky. Had Congress said much more, it would probably have had to resort to pleonasm. Still, in practice it does seem rather technical to hold that a prisoner like Nelson cannot be given the benefit of an early draw on his funds, which suggests that we should say a bit more on this subject.

15

Perhaps the best thing to say is that this looks very much like the provision that protects Social Security benefits, and the courts have had much to say about that congressional declaration. Congress provided that:

16

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

17

42 U.S.C. &#167 407(a). While the language is somewhat different from &#167 5301(a), its reach is essentially the same.

[*~894]18

The Supreme Court has had occasion to visit that Social Security provision. See Bennett v. Arkansas, 485 U.S. 395, 108 S. Ct. 1204, 99 L. Ed. 2d 455 (1988) (per curiam). When it did so, it dealt with an Arkansas statute that authorized the state to seize a prisoner's property "in order to help defray the cost of maintaining its prison system." Id. at 396, 108 S. Ct. at 1205. The Court was not impressed with the argument that the state was supplying all of the prisoner's needs. Id. at 398, 108 S. Ct. at 1205-06. Instead, it said, "Section 407(a) unambiguously rules out any attempt to attach Social Security benefits. The Arkansas statute just as unambiguously allows the State to attach those benefits. As we see it, this amounts to a `conflict' under the Supremacy Clause -a conflict that the State cannot win." Id. at 397, 108 S. Ct. at 1205; see also Philpott v. Essex County Welfare Board, 409 U.S. 413, 415-17, 93 S. Ct. 590, 591-92, 34 L. Ed. 2d 608 (1973). We have followed that lead and have declared that a state cannot pay for a prisoner's maintenance costs by attaching his Social Security benefits. Brinkman v. Rahm, 878 F.2d 263, 265-66 (9th Cir. 1989). And we have gone on to declare that a district court properly ordered that Social Security benefits" `are exempt from legal process and cannot be used to pay the plaintiff's cost of care without the patient's knowing, affirmative and unequivocal consent.' " Crawford v. Gould, 56 F.3d 1162, 1167 (9th Cir. 1995).

19

We have not overlooked the "consent" language which we have just quoted, but that cannot be deemed to mean consent to withdrawal of funds that accrue in the future.[5] If it did, it would be directly contrary to the provision that a right to future payment "shall not be transferable or assignable." 42 U.S.C. &#167 407(a). That spendthrift provision precludes consent to a taking of future benefits. Of course, &#167 5301(a) also declares that benefits "to become due . . . shall not be assignable." Thus, to the extent that the Prison Officials consider Nelson's drawing on his account when it has insufficient funds to be consent to a hold on, and assignment of, future veteran's benefits, they cannot deflect his disavowal of that by chanting "overdraft protection."

[*~895]20

But, the Prison Officials now argue, the amounts they put a hold upon and removed from the account are for maintenance and care[6] and in 1937 the Supreme Court said that veteran benefit payments are for that very purpose. See Lawrence v. Shaw, 300 U.S. 245, 249-50, 57 S. Ct. 443, 445, 81 L. Ed. 623 (1937). What they overlook is the fact that the Court was dealing with a situation where the state sought to tax bank accounts, including those which held veteran's benefits, and the Court said that could not be done. Id. Even after receipt and deposit, the funds remained subject to the call of the veteran, or his guardian, and could not be touched. Id.; see also District of Columbia v. Reilly, 249 F.2d 524, 525 (D.C. Cir. 1957) (per curiam). That does not offer much solace to the Prison Officials.

21

Reasonably enough, the Prison Officials then argue that a number of state courts have allowed the taking of funds for maintenance and care purposes. See Cruce v. Ark. State Hosp., 241 Ark. 680, 691-92, 409 S.W.2d 342, 349 (1966); Gundry v. Wiarda (In re Lewis' Estate), 287 Mich. 179, 186, 283 N.W. 21, 24 (1938); Okla. ex rel. E. State Hosp. v. Beard, 600 P.2d 324, 325-26 (Okla. 1979) (per curiam); State Dep't of Pub. Welfare v. DeBaker (In re Guardianship of Bemowski), 3 Wis.2d 133, 142, 88 N.W.2d 22, 27 (1958). We cannot blame the Prison Officials for citing those state cases, but must point out that neither we nor the other federal courts have accepted that approach. In a chimerical search for some kind of purpose, those cases overlook the words of the statutory provision by claiming that Congress could not have meant what it said. But if Congress wanted to create exceptions to the language, it knew how to do so. In fact, it did provide for some in &#167 5301(a) itself, as well as in &#167 5301(c) & (d).

22

Therefore, we agree with the district court that &#167 5301(a) precludes the Prison Officials from placing holds on Nelson's account. Of course, notwithstanding the Prison Officials' jeremiad to the contrary, this does not preclude Nelson from directing that payments be deducted from funds which exist in his account at the time that he issues the direction. Nothing we say here precludes him from currently spending the benefits he has received.[7] In fine, Nelson's statutory rights under &#167 5301(a) were violated.

B. Belief in Rectitude

23

The next step in the qualified immunity analysis is to ask whether the Prison Officials could have "reasonably but erroneously" believed that they were not violating the statute. Devereaux, 263 F.3d at 1074. We agree with the district court that they could have.

[*~896]24

Although we have shown that the Prison Officials were incorrect, they did have a number of state court cases that lent support to their position, and neither we nor the Supreme Court had ruled that &#167 5301(a) prohibited a veteran from doing what Nelson did here. In fact, it must have seemed (and even now seem) to them that this is another illustration of the aphorism that no good deed goes unpunished. Their approach did inject some flexibility into the trust account system, and, after all, Nelson did ask them to pay the money out of his account and on his behalf, and they could take comfort from Crawford, 56 F.3d at 1167, where we alluded to the efficacy of "consent." Moreover, the expenditures were of a discretionary nature, which differentiates them from the enforced cost of care mulcts imposed upon prisoners in past cases. The Prison Officials could see their program as a kind of benefit to Nelson that did not really amount to taking his property by some sort of legal process. All things considered, we cannot say that they behaved so unreasonably that they fell into the category of those who are "plainly incompetent or. . . who knowingly violate the law." Malley v. Briggs , 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986); see also B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1268 (9th Cir. 1999).

25

That, of course, demonstrates that the Prison Officials need not respond in damages. See Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). It does not mean that they cannot be enjoined from future violations of Nelson's rights. They admit as much. However, they contend that because Nelson has been removed from Calipatria State Prison to a different state prison facility, his action has become moot in that respect. We disagree in part.

[*897]26

It is true that when a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility. See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). We, therefore, agree that Nelson's action for injunctive relief against the Calipatria officials, Heiss, Prunty, and Garcia, has become moot. But he has also asserted a claim against Gomez, who was the Director of the Department of Corrections,[8] and, as the complaint alleges, set policy for the whole California prison system. See Cal. Penal Code &#167 &#167 5053-5054.

27

The trust account policy appears to be system wide. For example, the sample form of authorization to maintain a trust account, which we have been given, provides that the Director of the California Department of Corrections maintains the trust accounts.[9] Also at the director level, where the practice of the Calipatria State Prison was approved, it was determined that "[n]o changes or modifications are required by the institution," and Nelson's appeal was denied. That is sufficient to indicate that Nelson's request for injunctive relief against the Director of the Department of Corrections should not have been rejected out of hand on a Fed. R. Civ. P. 12(b)(6) motion. If some slight adjustment in the complaint was required to make it clear that he was challenging a systemwide problem, leave to amend should have been granted. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

CONCLUSION

28

When the Prison Officials allowed Nelson to authorize a withdrawal from his empty prison trust account, advanced the goods and services requested, and then placed holds on the account until Nelson's incoming veteran's benefits paid back the advances, they, in effect, allowed him to assign his future benefits and then seized those to repay the prison system. That was in error because it violated &#167 5301(a). On the other hand, making that error was neither anserine nor intentionally wrong. Thus, they were entitled to qualified immunity from being subjected to damages. However, Nelson may still be able to obtain an injunction to preclude that practice in the future. As to that, the denouement awaits future action in the district court.

29

AFFIRMED in part, REVERSED in part, and REMANDED. The parties shall bear their own costs on appeal.

Notes:

*

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).

1

The officials are: Barbara Heiss, Senior Accounting Officer at Calipatria State Prison; K.W. Prunty, former Warden at that prison; Silvia H. Garcia, Chief Deputy Warden at that prison; and James Gomez, then Director of the California Department of Corrections. Hereafter, unless otherwise stated, we will refer to them as the "Prison Officials."

2

Hereafter, our references to &#167 5301(a) are to this statutory provision.

3

We recognize that Nelson's &#167 5301(a) claim directly relates to a statutory, rather than a constitutional, violation, but that makes no difference. See Deorle v. Rutherford, 263 F.3d 1106, 1118 (9th Cir. 2001.)

4

We are cognizant of Nelson's claim that his rights were violated because he did not get predeprivation due process. See Mathews v. Eldridge, 424 U.S. 319 332-35, 96 S. Ct. 893, 901-03, 47 L. Ed. 2d 18 (1976); Brady v. Gebbie, 859 F.2d 1543, 1554 (9th Cir. 1988); Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir. 1985). We do not give it extensive consideration because it is plainly meritless. Nelson knew, or should have known, that his account was depleted, but he still asked that he be given the goods and services in question and personally consented to payment for them from his account. It will not do for him to now rather disingenuously complain that the Prison Officials essayed to do precisely what he asked them to do. Plainly, that was not the kind of action that would start judicial (or constitutional scholar) hands wringing; it was not a due process violation at all.

5

We emphasize that we are dealing with the overdraft issue only. We are not concerned with, and do not opine upon, whether the trust account program as presently structured operates properly when there are funds in the account.

6

Whether such items as record copying expenses are for maintenance and care is problematic, but it makes no relevant difference anyway.

7

That said, we reject the Prison Officials' complaint that the district court improperly answered or anticipated parts of their monody. Perhaps some of what the district court said was dicta; it was not an advisory opinion. Cf. Naylor v. Superior Court of Ariz., 558 F.2d 1363, 1366 (9th Cir. 1977) (if a case is moot, the court's opinion is merely advisory.).

8

Gomez no longer holds that position. A new director, Edward S. Alameida, has been appointed and assumed office, but has not yet been confirmed. See Cal. Gov't Code &#167 1774. In due course, the district court can make the necessary official substitution. See Fed. R. Civ. P. 25(d).

9

See also Cal. Penal Code &#167 5057.