                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 12 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOHN ARMSTRONG; et al.,                          No. 09-16716

              Plaintiffs - Appellees,            D.C. No. 4:94-cv-02307-CW

  v.
                                                 MEMORANDUM *
ARNOLD SCHWARZENEGGER; et al.,

              Defendants - Appellants.




                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                      Argued and Submitted January 28, 2010
                               Pasadena, California

Before: REINHARDT, TASHIMA and BERZON, Circuit Judges.

       Defendants appeal a July 9, 2009 minute order concerning the modification

of local operating procedures for the provision of accommodations to hearing

impaired prisoners at individual institutions within the California Department of

Corrections and Rehabilitation. The scope of that order is unclear to this court.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiffs characterize the order as simply directing plaintiffs and defendants to

meet and confer to attempt to reach agreement as to such local operating

procedures. The district court, in a “Finding of Fact” memorandum issued months

after the original order, characterized the order in similar terms. See Armstrong v.

Schwarzenegger, No. 94-2307 (N.D. Cal. Dec. 31, 2009). This court lacks

jurisdiction to review interim orders in which the district court has not ordered

relief but is, in essence, acting as a mediator, helping the parties to identify areas of

disagreement and reach mutually acceptable compromises. See United States v.

One 1986 Ford Pickup, 56 F.3d 1181, 1184-85 (9th Cir. 1995). Moreover, an

order in which no prospective relief is ordered implicates neither the Prison

Litigation Reform Act nor its need-narrowness-intrusiveness requirements.

      Defendants, however, see the order quite differently. They contend that it

obligated them to make radical changes in their policies and procedures, a

contention for which they find support in the statements of the court at the July 9,

2009 hearing during which the order was initially discussed by the court and the

parties. At that hearing, the district court made statements that could be interpreted

as requiring the defendants to adopt in all of their institutions either the local

operating procedures from the CDCR facility at Lancaster or other procedures that

resolved certain deficiencies that the plaintiffs identified as present in the


                                            2
procedures of most facilities. An order requiring defendants to actually modify

their policies to conform to certain requirements requested by the plaintiffs would

be subject to both this court’s appellate jurisdiction and the requirements of the

PLRA.

       The record before us is insufficient to determine whether the district court

issued an order simply directing defendants to confer among themselves and with

the institutions under their purview about the possibility of making certain

modifications in the local operating procedures, and then to confer with plaintiffs

to see if agreement could be reached; or an order requiring defendants to change

their policies and procedures in the ways requested by plaintiffs. We are mindful

of the extraordinary efforts of the district court in this long and difficult litigation

and are confident in its very able management of the complexities of this case.

Accordingly, we vacate the order and remand to the district court to issue a

clarified order consistent with this decision and the requirements of the PLRA,

unless developments in the ongoing negotiations between the parties have rendered

the issue moot.1

       VACATED and REMANDED.



       1
      Plaintiffs’ motion to strike a portion of defendants’ Reply Brief is denied.
Appellees’ motion to dismiss the case is denied as moot.

                                             3
