                                                                              FILED
                           NOT FOR PUBLICATION                                   APR 22 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RALPH COLEMAN; et al.,                           No. 10-17546

              Plaintiffs - Appellees,            D.C. No. 2:90-cv-00520-LKK-
                                                 JFM
  v.

EDMUND G. BROWN, Governor of                     MEMORANDUM**
California; et al.,*

              Defendants - Appellants.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                       Argued and Submitted April 12, 2011
                              Pasadena, California

Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.


       California government officials challenge two post-judgment district court

orders requiring an increase in the rate of admission from five to ten inmate-



       *
             Edmund G. Brown, Jr. is substituted for his predecessor, Arnold
Schwarzenegger, as Governor of the State of California. Fed. R. App. P. 43(c)(2).
      **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
patients per week in two intermediate mental health care facilities at the Salinas

Valley State Prison Psychiatric Program. The two October 2010 orders at issue

required that inmates be admitted until the two 58-bed facilities reached full

capacity.

      Plaintiffs move to dismiss as moot because the facilities became fully

occupied as of February 2011 and defendants have thereby complied with the

orders they appeal. We deny plaintiffs’ motion because the challenged action is

capable of repetition, yet evading review. See Enyart v. Nat’l Conference of Bar

Examiners, Inc., 630 F.3d 1153, 1159-60 (9th Cir. 2011). That the plaintiff class in

this longstanding and ongoing litigation has requested an order to accelerate

admissions at a similar rate in another mental health facility supports a “reasonable

expectation that the same complaining party would be subjected to the same action

again,” Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam), and that

such a controversy would be “in the ordinary course of affairs . . . very likely to

escape review.” Joyner v. Mofford, 706 F.2d 1523, 1527 (9th Cir. 1983).

Plaintiffs’ motion to dismiss as moot is therefore denied.

      Defendants contend that the orders violate the Prison Litigation Reform Act

(“the Act”), 18 U.S.C. § 3626, by imposing prospective relief beyond what is




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necessary to vindicate plaintiffs’ federal rights.1 We decline to decide whether the

Act applies to the two orders at issue because its requirements are satisfied in any

event. The district court expressly relied in its orders on the expansive record in

this case, spanning over two decades and thousands of entries. This record

contains ample evidence of the unconstitutional conditions under which the over

400 seriously mentally ill inmates in the plaintiff class languished, as defendants

repeatedly failed to comply with the district court’s previous orders to provide

them with the necessary inpatient hospital care. That two inmate-patients

committed suicide while awaiting transfer to the mental health facilities is among

the many facts that collectively are more than sufficient to demonstrate that

plaintiffs “have suffered, or will imminently suffer, actual harm.” Lewis v. Casey,

518 U.S. 343, 349 (1996).

      By ordering accelerated admissions to the mental health facilities, the district

court has not “enmeshed [itself] in the minutiae of prison operations” beyond what

is necessary to vindicate plaintiffs’ federal rights. Id. at 362 (quoting Bell v.

Wolfish, 441 U.S. 520, 562 (1979)). Nor, in view of the lengthy and detailed



      1
        Plaintiffs contend that defendants failed to preserve their challenge under
the Act by neglecting to raise such an argument below. We reject plaintiffs’
waiver contention because the instant appeal constitutes defendants’ first
opportunity to challenge both district court orders on the merits.

                                          -3-
record in this case, could “the same vindication of federal rights . . . have been

achieved with less involvement by the court in directing the details of defendants’

operations.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1071 (9th Cir. 2010).

In sum, we conclude that in imposing the accelerated admissions rate, the district

court complied fully with the Act’s requirements that prospective relief be

“narrowly drawn, extend[] no further than necessary to correct the violation of the

Federal right,” and be accomplished by “the least intrusive means necessary to

correct the violation of the Federal right.” § 3626(a)(1).



      Accordingly, the two orders below are AFFIRMED.




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