Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1991)

James Richard TERROVONA, Plaintiff-Appellant,v.Kurt S. PETERSON, Neal Brown, Michael Watkins, Sgt.Gatchett, James Rich, Defendants-Appellees.

No. 89-35157.

United States Court of Appeals, Ninth Circuit.

Submitted May 7, 1990.* Decided May 16, 1991.

Before EUGENE A. WRIGHT, POOLE and BRUNETTI, Circuit Judges.


MEMORANDUM** 

James Richard Terrovona, currently an inmate at the Washington State Penitentiary, appeals pro se from the district court's dismissal of several claims of his 42 U.S.C. § 1983 action. Terrovona contends that various prison officials at the Washington State Corrections Center at Shelton violated his constitutional rights by subjecting him to a digital rectal body cavity search immediately after his transfer from the Washington State Penitentiary.

FACTS

In September 1988, James Terrovona filed a complaint under 42 U.S.C. § 1983 against several prison officials at the Washington State Corrections Center [WCC] in their individual and official capacities.1  Terrovona alleged that the prison officials had violated his constitutional rights by subjecting him to a digital rectal body cavity search in December 1985. The search was performed upon his transfer from Washington State Penitentiary to WCC, a transfer that was made because of "Division of Prisons population needs." He claimed that the search was unjustified because during the course of his transfer he never left the custody of Washington State prison officials. This apparently had been Terrovona's third rectal search in ten months of custody. He further claimed that, regardless of justification, the search was conducted in an unsanitary manner. He requested declaratory relief, an order enjoining the defendants from conducting searches without justification, and compensatory and punitive damages.

The prison officials filed a motion to dismiss the action pursuant to Federal Rules of Civil Procedure 12(b) (1) and 12(b) (6). The district court dismissed Terrovona's claims against the prison officials in their official capacities and against Superintendent Kurt S. Peterson. It also dismissed the claim for injunctive relief. Terrovona timely appealed these interlocutory rulings.

DISCUSSION

Terrovona contends that this court, pursuant to 28 U.S.C. § 1291, has jurisdiction over his appeal from the district court's dismissal of his claims against the prison officials in their official capacities and against Peterson. This contention lacks merit.

When a district court dismisses fewer than all claims in an action, or dismisses claims as against fewer than all defendants, that dismissal is not a final order appealable under 28 U.S.C. § 1291. Fletcher v. Gagosian, 604 F.2d 637, 638 (9th Cir. 1979). Terrovona argues, however, that Gillespie v. U.S. Steel Corp., 379 U.S. 148 (1964), provides for review in the instant case. Gillespie held that interlocutory review is appropriate where delay might work a substantial injustice on the party seeking review and where the rulings appealed are fundamental to the further conduct of the case. Id. at 153-54. Subsequent cases narrowly construed Gillespie, applying it only to "orders involving unsettled issues of national importance where immediate review would serve the purpose of judicial economy underlying the finality rule." All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425, 428 n. 2 (9th Cir. 1989) (quoting Kiaaina v. Jackson, 851 F.2d 287, 290 n. 5 (9th Cir. 1988)).

Terrovona's claims against the prison officials and against Peterson do not involve unsettled questions of national importance. Nor would immediate review serve the purpose of judicial economy. The district court's dismissal of these claims therefore does not constitute a final, appealable order, and this court lacks jurisdiction over these matters. See Fletcher, 604 F.2d at 638.2 

Terrovona also argues that the district court's dismissal of his claim for injunctive relief, although an interlocutory order, is appealable pursuant to 28 U.S.C. § 1292(a) (1).

28 U.S.C. § 1292(a) (1) provides for appellate review of interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions...." Dismissal of a claim for injunctive relief constitutes an appealable interlocutory order under this statute. General Elec. Co. v. Marvel Rare Metals Co., 287 U.S. 430, 433 (1932); State of California v. Kleppe, 604 F.2d 1187, 1190 (9th Cir. 1979). This court thus has jurisdiction over Terrovona's appeal from the district court's dismissal of his claim for injunctive relief.

We review de novo the district court's dismissal of an action for failure to state a claim. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We construe a pro se complaint liberally and "will not uphold a dismissal for failure to state a claim unless it appears beyond doubt that the plaintiff can show no set of facts that supports his claim" and that would entitle him to relief. Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986).

Although the district court did not state its rationale for dismissing Terrovona's claim for injunctive relief, it appears to have relied on the magistrate's report. The magistrate concluded that Terrovona had not alleged a reasonable fear of future searches and recommended dismissal of the claim, apparently on the basis of mootness. The magistrate placed great weight on the defendants' allegation that they have changed their search policy.

Federal courts lack jurisdiction to decide moot cases, and thus we apply a de novo standard for reviewing a district court's decision on mootness. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986). In general, a case becomes moot when "the issues are no longer live or the parties lack a legally cognizable interest in the outcome." Id. There is an exception, however: " [r]eview [can] be had where there [is] injury that [is] 'capable of repetition, yet evading review.' " Id. at 1339 (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)).

Having been transferred once again since the 1985 rectal search, Terrovona alleges that he remains subject to transfer at any time, without his consent and for reasons unrelated to his conduct. Although he admits that an amended search policy has been issued, one that requires reasonable suspicion before a rectal probe search can occur, Terrovona argues that he is nevertheless likely to be again subject to search. He claims that the defendants remain free to resume their old practices, especially since the new policy is expressly entitled "temporary."

In order to establish that the objectionable practice is capable of repetition as to him, a plaintiff must make a " 'reasonable showing' of a 'sufficient likelihood' " that the injury will recur. Sample, 771 F.2d at 1339, 1340 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109, 111 (1983)). "The 'mere physical or theoretical possibility' of a challenged action again affecting a plaintiff is not sufficient." Id. (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)). The plaintiff bears the burden of meeting this standard. Id. at 1343.

Terrovona has not met his burden. It is mere speculation to surmise that all circumstances necessary for a repeat of the alleged violation will recur, i.e., that defendants will readopt their former search policy, transfer Terrovona from one Intensive Management Unit to another, and search Terrovona pursuant to the policy.

Thus, we hold that the instant case is moot. If Terrovona is subjected to an allegedly illegal rectal search under the new policy, he can then bring a new action. This appeal, however, we lack jurisdiction to hear.

AFFIRMED.

 *

The panel unanimously finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Federal Rule of Appellate Procedure 34(a)

 **

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 Cir.R. 36-3

 1

Terrovona named the following prison officials as defendants: Kurt S. Peterson, superintendent of the Washington State Corrections Center; Neal Brown, duty officer who approved the search; Lieutenant Michael Watkins, the lieutenant on duty at the prison who approved the search; Correctional Sergeant John Doe Gatchett, the sergeant on duty during the search; and James Rich, the physician's assistant who performed the rectal search

 2

Terrovona also argues that this court has jurisdiction over interlocutory grants or denials of qualified immunity, citing Tribble v. Gardner, 860 F.2d 321 (9th Cir. 1988), cert. denied, 109 S. Ct. 2087 (1989). Although this may be a correct statement of law, see id. at 323, it is irrelevant. The order appealed from was not a grant of qualified immunity. The dismissal of claims against the defendants in their official capacities was based on sovereign immunity. The court dismissed the claims as to Peterson because the theory of respondeat superior would not support an action against him