FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE-LAEL B. NORSWORTHY,

Plaintiff-Appellee,

v.

JEFFREY BEARD, CDCR Secretary;

M. E. SPEARMAN, CTF Warden;

RAYMOND J. COFFIN; JARED

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.

No. 15-15712

D.C. No.

3:14-cv-00695-

JST

OPINION

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 mandatorypreliminary

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 DeputyAttorneyGeneral; 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.1If 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

ofthe parole review process, we are notso 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)).