United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3156

___________ Robert Hickman; Christopher * Barber; Jerry Newman; Donald * Lane, * * Plaintiffs-Appellees, * * v. * Appeal from the United States District * Court for the Western District of State of Missouri, * Missouri. * Defendant-Appellant; * * Mel Carnahan, Governor, * * Defendant; * * Missouri Department of Corrections, * * Defendant-Appellant; * * Dora B. Schriro, * * Defendant; * * Division of Adult Institutions, * * Defendant-Appellant; * * George Lombardi, * * Defendant; * *-2-

Division of Classification * and Treatment, * * Defendant-Appellant; * * R. Dale Riley, * * Defendant; * * * Western Missouri Correctional Center, * * Defendant-Appellant; * * Mike Kemna; Correctional Medical * Services; William Wade, * * Defendants. *

___________ Submitted: March 12, 1998 Filed: May 19, 1998

___________ Before FAGG, ROSS and BOWMAN, Circuit Judges

___________ ROSS, Circuit Judge.
The State of Missouri, t

he Missouri Department of Corrections, the Division of Classification and Treatment, and the Western Missouri Correctional Center (WMCC) (collectively referred to as defendants) appeal from a judgment of the district court granting declaratory relief to plaintiffs, former inmates at WMCC, on t heir claims underBefore trial, plaintiffs dism issed Correctional Medical Services as a defendant. 1 Also, bef ore trial, the district court granted the individual defendants' motion fo r summary judgment on the grounds of qu alified immunity. Plaintiffs have not appealed that decision. At trial, the court granted Barber's motion to withdraw from the case. 2 Plaintif fs have not cross-appealed the district court's denial of injunctive relief 3 or any other aspect of the court's judgment. -3- the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA). Because we 1 agree with defendants that plaintiffs' claims were moot, we vacate the judgment.
In 1994, R obert Hickman, Christopher Barber, Jerry Newman and Donald Lane, paraplegics who were confine d at WMCC, filed a complaint alleging ADA violations in the prison's facilities and ser vices. By the time of the district court's July 1997 opinion, 2 plaintiffs had been re leased on parole. Because of their release and because defendants "had substanti ally complied with the ADA" as to on-site facilities and "were continuing to correct deficiencies[,]" the court refused to grant injunctive relief. However, the court

3 granted plaintiffs’ request for declaratory relief, f inding that certain of WMCC's facilities and programs violated the ADA.
On appeal, the State argues that the district court lacked s ubject matter jurisdiction to iss ue declaratory relief because plaintiffs' claims were moot at the time of the court's decision. We agree. "Federal c ourts are courts of limited jurisdiction and can only hear actual 'cases or controversies' as defined under Article III of the Constitution. " Neighborho od Transp. Network, Inc. v. Pena , 42 F.3d 1169, 1172 (8th Cir. 1994)

. "When a case . . . no longer presents an actual, ongoing case or controversy, the case is moot and the federal court no longer has jurisdiction to hear it."-4-

Id. This requirement applies to all stages of the litigation, id. , and "applies with equal force to actions for declaratory judgment as it does to actions seeking traditional coercive relief." Mari ne Equip. Management Co. v. United States , 4 F.3d 643, 646 (8th Cir

. 1993).

Beca use plaintiffs have been released on parole and are no longer confined a t WMCC, the ir claims are moot. See Martin v. Sargent , 780 F.2d 1334, 1337 (8th Cir

. 1985) (ordinarily claim "to improve prison conditions is moot if [plaintiff] is no longe r subject to those conditions"). Contrary to plaintiffs' argument, their claims do not fall within the "capable-of-repetition-yet-evading-review" exception to the mootness doctrine. This ex ception "applies only in exceptional situations, where the following tw o circumstances [a

re] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reas onable expectation that the same complaining party [will] be subject to the sam e action again[.]" Spenc er v. Kemna , 118 S. Ct. 978, 988 (1998) (internal quotations and citations omitted).

As to the "evading-review" prong, "the focus of our analysis . . . is not on th e l e ngth of time over which the particular action challenged occurred." Clark v. Brewer , 776 F.2d 22 6, 229 (8th Cir. 1985). "Rather, the proper inquiry is whether th e [challe nged] activity is by its very nature short in duration , so that it could not, o r probably would not, be able to be adjudicated while fully alive." Id . (emp hasis in original; internal quotation omitted). For example, in Clark , this court held that a challenge to a prison 's close management segregation policy satisfied the first prong because th e "segreg ationw[ould] normally terminate and the inmate w[ould] be returned to th e general penitentiary population long before a challenge to hisThe Seventh Circuit has indicated that the capable-of-rep etition doctrine applies 4 "without discriminating between claims for declaratory relief and claims for injunctive relief." Higgason v. Farley , 83 F.3d 807, 811 (7th Cir. 1996). -5- segregation. . . c[ould] be litigated fully." Id .; see also Roe v. Wade , 410 U.S. 113, 125 (1973) ("human gestation

period is so short that the pregnancy will come to term before the usual appellate process is complete"); Van Bergen v. Minnesota , 59 F.3d 1541, 1547 (8th Cir. 1995) (election issues "are almost invariably of too short a duration in which to complete litigation").

In this case , plaintiffs have not shown that the duration of the alleged illega l conditions is "always so short as to evade review." Spencer , 118 S. Ct. at 988. Thus, "[p]utting aside whether this is a case that is 'capable of repetition,' it has not been shown to be of the type that nec essarily 'evades review' . . .." Neighborhood Transp. Network, Inc. , 42 F.3d at 1172-73 (footnote omitted). In other words, although plaintiffs' claims
are moot, "[i]t d oes not follow . . . that similar future cases will evade review." Id. a t 1173. As the district court stated in denying injunctive relief, if plaintiffs violate thei r parole and return to WMCC, and t he alleged illegal conditions "persist or are repeated," the court can "deal with the situation at that time." 4

We also do not believe that plaintiffs meet the "capable-of-repetition" prong

. Relying on H onig v. Doe , 484 U.S. 305 (1988) , plaintiffs argue that given their history, there is "a reasonable expectation" that at least one of them will violate parole and return to WMC C. Their reliance on Honig is misplaced. In Honig , the Supreme Court emphasi zed that "for purposes of assessing the likelihood that state authorities wil l reinflict a given injury, [courts] generally have been unwilling to assume that the party seeking relief will re

peat the type of misconduct that would once again place him or herPlaintiffs' reliance on Clark v. Brewer , 776 F.2d at 226, is also misplaced. In 5 that case, we held that an inmate's cha llenge to close management segregation was not moot even though after f

iling a complaint he had been released from segregation. We found that the case was capable of repetition because it was a "virtual certainty" h e wouldonce again be in close management segregation given that at the time of thi s court's decision he was in punitive detention and, pursuant to a prison regulation, at the completion of the detention, he would be "automatically" returned toclose management segregation. Id. at 229. -6- at riskof that injury." Id. at 320. However, "[g]iven the unique circumstances an d context of

th[e] case," the Court was willing to assume that a plaintiff whose "very inabi lity to conform his conduct to socially acceptable norms that render[ed] hi m ‘han dicapped’" would "again engage in the type of misconduct that precipitated th[e ] suit." Id. at 320-21. In contrast, here, plaintiffs are "in control o f the type of conduct that will put [them] in jail again and subject [ them] to the same deprivations alleged in [their] complaint." Reimers v. Oregon , 863 F.2d 630, 632 n.4 (9th Cir. 1988). Indeed, they are " 'required by law--to prevent such a pos sibility from occurring.' " Spencer v. Kemna , 91 F.3d 1114, 1118 (8th Cir. 1996) (quoting Lane v. Williams , 455 U.S. 624, 632-33 n.13 (1982)), aff'd , 118 S. Ct. 978 (1998). 5

Nor , contrary to plaintiffs' argument, does the voluntary-cessation doctrine sav e their claims from being moot. It is true that "[g]enerally, the 'voluntary cessation o f all egedly illegal conduct . . . does not make the case moot.' " United States v. Merc y Health S erv. , 107 F.3d 632, 636 (8th Cir. 1997) (quoting United States v. W.T. Gran t Co. , 345 U.S. 629, 632 (1953)). However, defendants' compliance with the ADA , including structural changes such as installation of ramps, pull and grab bars, and chair lif ts, is far "more than a mere voluntary cessation of alleged illegal conduct, where w e would leav e [t]he defendant[s] . . . free to return to [their] old ways." Preiser v

. Newkirk , 422 U.S. 395, 402 (1975) (internal quotations and citations omitted).We n ote that the district court stayed plaintiffs' motion for attorney's fee s 6 pending resolution of this appeal. Although in some circumstances an award of fees may save a case from being moot, see Community Publis hers, Inc. v. DR Partners , No. 95-297 6, 1998 WL 131260, at *4 n.3 (8th Cir. Mar. 25, 1998), as a general rule, and in this case, "a cl aim for attorneys’ fees is . . . not sufficient to save a case from being moot." Neighborhood Transp. Network, Inc. , 42 F.3d at 1172 n.2. In fact, even if a case is moot, "[t]his court has recognized the 'catalyst' theory of prevailing parties, " which provides that a plaintiff can be a prevailing party for purposes of attorney’s fees under42 U.S.C. § 1988 if " 'his suit is a catalyst for the defendant's voluntary com pliance and the defendant's compliance was not gratuitous.' " St. Louis Fir e Fighters Ass'n v. City of St. Louis , 96 F.3d 323, 3 30-31 (8th Cir. 1996) (quoting Little -7- Moreover , the doctrine is inapplicable because "resumption of the challenged conduc t does not depend solely on the defendants' capricious actions." Allen v. Likins , 517 F.2d 532, 535 (8th Cir. 1975) (internal quotation omitted). "The defendants cannot resum e theirallegedly illegal conduct [as to plaintiffs] until [they] voluntarily commit[] an ac t justifying [their] parole revocation." Id.

Finall y, plaintiffs suggest that there is a general public-interest exception t o mootness. In support, they note that this court has not yet decided whether the AD A applies to prisons and assert that it was in the public interest for the district court to do
so. However, there is no such exception in federal courts. "[A]lthough state law ma y save [a] case from mootness based on public interest, federal courts require litigants ' rights be aff

ected." Spencer , 91 F.3d at 1118. We note that on April 28, 1998, th e Supreme Cour

t in Yeskey v. Pennsylvania Dep't of Corrections , 118 F.3d 168 (3rd Cir. 1997), cert. granted , 118 S. Ct. 876 (1998), heard argu ment on whether the ADA applies to prisons. We thus decline to address that question at this time.
Accordingly, we vacate the judgment of the district court and remand with directions to dismiss the complaint as moot. 6Ro ck

Sch. Dist. v. Special Sch. Dist. 1 , 17 F.3d 260, 262 (8th Cir. 1994)). At thi s time, we leave to the district court’s discretion whether to award attorney fees and, if so, in what amount. -8- A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT