                     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).
2                    NORSWORTHY V. BEARD

      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 Rehabilitation to
provide plaintiff, a transgendered woman, with sex
reassignment surgery, and remanded with directions.

    While the appeal was pending—one day prior to oral
argument—plaintiff was released on parole from the
California prison system. Because plaintiff did not seriously
dispute that the case became moot upon her release, the panel
dismissed the appeal. The panel remanded to the district
court so that it could determine whether the appeal became
moot through happenstance or the defendants’ own actions.
The panel stated that if the latter was the case, the district
court should consider the factors under Ringsby Truck Lines,
Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722
(9th Cir. 1982), to determine whether to vacate its
preliminary injunction order. The panel also remanded for


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 NORSWORTHY V. BEARD                       3

the district court to consider the question of the award of
attorneys’ fees.

    Concurring in the dismissal and dissenting from the
remand, Judge Callahan stated that in addition to dismissing
the appeal, the panel should vacate the mandatory preliminary
injunction ordering the California Department of Corrections
to provide plaintiff with sex reassignment surgery.


                        COUNSEL

Jose A. Zelidon-Zepeda, Deputy Attorney General; Thomas
S. Patterson; Supervising Deputy Attorney General; Jonathan
L. Wolff, Senior Assistant Attorney General; Kamala D.
Harris, Attorney General of California, San Francisco,
California, for Defendants-Appellants.

Herman J. Hoying and Christopher J. Banks, Morgan Lewis
& Bockius LLP, San Francisco, California; Ilona M. Turner,
Jennifer Orthwein, and Shawn T. Meerkamper, Transgender
Law Center, Oakland, California, for Plaintiff-Appellee.

Paul R.Q. Wolfson and Thomas C. Kost, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C.; Alan E.
Schoenfeld and Adriel I. Cepeda Derieux, Wilmer Cutler
Pickering Hale and Dorr LLP, New York, New York; Felicia
H. Ellsworth, Wilmer Cutler Pickering Hale and Dorr LLP,
Boston, Massachusetts, for Amici Curiae American Civil
Liberties Union et al.

Sanford Jay Rosen and Aaron J. Fischer, Rosen Bien Galvan
& Grunfeld LLP, San Francisco, California, for Amici Curiae
Bay Area Lawyers for Individual Freedom.
4                 NORSWORTHY V. BEARD

Barry Levenstam, Jenner & Block LLP, Chicago, Illinois;
Lisa J. Kohn, Jenner & Block LLP, Los Angeles, California;
Devi M. Rao, Jenner & Block LLP, Washington, D.C., for
Amici Curiae Medical and Mental Health Professionals:
World Professional Association for Transgender Health and
GLMA: Health Professionals Advancing LGBT Equality.


                         OPINION

PER CURIAM:

    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—Norsworthy 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
                      NORSWORTHY V. BEARD                                5

classified as a class action.” Dilley v. Gunn, 64 F.3d 1365,
1368 (9th Cir. 1995). Norsworthy does not seriously dispute
that the case became moot upon her release.

    Here, the district court entered a mandatory injunction
requiring CDCR to perform sex reassignment surgery.
Although automatic vacatur is “the ‘established practice’ . . .
whenever mootness prevents appellate review,” an exception
to this practice exists when a case is mooted “not due to
‘happenstance’ but ‘when the appellant has by his own act
caused the dismissal of the appeal.’” Dilley, 64 F.3d at
1369–70 (quoting Ringsby Truck Lines, Inc. v. Western
Conference of Teamsters, 686 F.2d 720, 722 (9th Cir.1982)).
Defendants argue that vacatur is appropriate as to the entirety
of the district court’s determination because an “independent
parole suitability review process” mooted the case. Where
“the facts surrounding” a prisoner’s release “are not
sufficiently developed in the record . . . to determine”
whether the release occurred through happenstance or the
defendants’ actions, the appropriate course is to remand to the
district court to determine whether to vacate its order. Id. at
1371. We therefore remand to the district court so that it can
determine whether this appeal became moot through
happenstance or the defendants’ own actions.1 If the latter


  1
    The dissent charges that our decision to remand because it is unclear
whether defendants’ actions mooted the case “approaches sophistry.” Our
precedent, however, requires that we remand in such circumstances. See
Dilley, 64 F.3d at 1371. Moreover, although our dissenting colleague may
be willing to accept the defendants’ assertions regarding the independence
of the parole review process, we are not so convinced. Before Norsworthy
filed this suit, a panel of the parole board had on several prior occasions
denied her parole. It last did so in March 2013 for a three-year term,
meaning that Norsworthy’s next parole hearing should in the ordinary
course have come in March 2016. Four months after Norsworthy filed
6                     NORSWORTHY V. BEARD

is the case, the district court should consider the factors under
Ringsby to determine whether to vacate its preliminary
injunction order.




this suit in February 2014, however, the parole board decided to advance
the date of her next parole hearing. That hearing was then delayed and,
in the meantime, the district court granted the motion for a preliminary
injunction in April 2015. A little over a month later, Norsworthy finally
had a parole hearing, at which point a parole board panel approved her
application.

     By statute, both the full parole review board and governor can review
a panel decision within a certain time. See Cal. Penal Code §§ 3041,
3041.2. Here, if both the full parole board and governor had let these
statutory periods lapse without action, the parole determination would
have become final on October 18, 2015. As it happened, this court asked
the parties on July 20 to provide an update regarding Norsworthy’s parole
and address whether the parole board panel’s decision mooted the case.
In their response, defendants informed us for the first time that the full
parole board had at some point approved the panel’s decision and that
defendants “anticipate[d]” a final decision from the governor by August
7 that, if favorable to Norsworthy, would insure that she would “be
released from prison in August.” The governor did indeed approve
Norsworthy’s parole on August 7. Nevertheless, Norsworthy argued that
oral argument should proceed as scheduled on August 13 because CDCR
planned to release her on August 14, meaning that she would still be
incarcerated on the date of oral argument. Defendants reply—filed on
August 12, the eve of oral argument—informed us that Norsworthy had
in fact been released that very morning. The reply did not divulge why
Norsworthy’s release date had changed.

     Far from “sophistry,” these coincidences indicate that there is at least
some chance that defendants influenced the parole process. At this point,
however, all we can say is that the circumstances of Norsworthy’s release
are somewhat unusual. Because we can say no more, we are unwilling to
express a view of what happened without full knowledge of all the facts
that the district court should consider in the first instance.
                  NORSWORTHY V. BEARD                        7

    Accordingly, this appeal is dismissed as moot, and we
remand this case to the district court so that it can determine
whether to vacate its preliminary injunction order, as well as
to consider the question of the award of attorneys’ fees.

   DISMISSED and REMANDED with directions.



CALLAHAN, Circuit Judge, 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
8                    NORSWORTHY V. BEARD

Board and the Governor are not subject to or responsible to
the CDCR.1

     Moreover, the remand simply encourages unnecessary
litigation over a mandatory preliminary injunction that
everyone agrees is moot. In contrast, the vacatur of the
injunction would have no effect on Ms. Norsworthy’s
assertion that she remains entitled to attorney’s fees.

        The mandatory preliminary injunction should be vacated.




    1
   Accepting the majority’s characterization of the facts concerning Ms.
Norsworthy’s release, it only shows influence and not that “the appellant
has by his own act caused the dismissal of the appeal.” Dilley, 64 F.3d at
1369–70 (quoting Ringsby Truck Lines v. Western Conference of
Teamsters, 686 F.2d 720, 722 (9th Cir. 1982)).
