PUBLISH

UNITED STATES COURT OF APPEALS

Filed 11/15/96TENTH CIRCUIT

JIMMY MCCLENDON, also known as )

Billy McClendon; HAROLD LUND; )

PETER SUMATKAKU; DAVID MICHAEL )

BAUER; CARL RAY LOPEZ; BRUCE )

DAVID MORAWE; THOMAS YOUNG; )

RUTHIE DURAN; DEBORAH LAVERA; )

JANELLE ROYBAL; DANETTE DIFIORI; )

MARIA SISNEROS; LARRY GREEN; )

BARTEL HALEY; MICHAEL COTE; JOE )

RAY HERRERA; JOSIE KRIENA; )

DEBBIE LUCERO; DAVID SHAWKIN; )

MARC A. GILLETTE; GEORGE )

CHAVEZ; ELISEO BACA; CLINT )

BARRAS; FRANCISCO MELENDEZ; ) Nos. 96-2056

SAMUAL HERROD; VINCENT ) 96-2057

PADILLA; CARL DUCKWORTH; )

JOSEPH W. ANDERSON; PAUL )

JOHNSON; FRED MALL; HECTOR )

LOPEZ; RICKY ROSE; HERBERT KING, )

SR.; JAMES PARKS; MICHAEL A. )

JOHNSON; JOHNNY VALLEJOS; JOE )

NEWBERRY; DARRYL CRAFT; )

ALBERT WILLY; WILLIAM P. JIMMY; )

AUGUSTINE TAPIA; RICHARD A. )

SMITH; ROBERT LOVATO; ROY )

WHATLEY; MARTY BEGAY; MARTIN )

VALDIVIA; TALLIE THOMAS; )

AUGUSTINE JACKSON; DONALD )

HALL; CARL SUR; STEVE ESQUIBEL; )

LONNIE WHATLEY; JAMES SAIZ; )

BRYON ZAMORA; ALLEN M. )

SAWYER; PATRICK BENNY ROMERO; )

RICHARD C. KOPECKY; PHILLIP )

SHUMATE; NELSON ROMERO; STEVE )

JOHNSON; BENNIE F. GARCIA; LOUIE )
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CHAVEZ; BRIAN SALAZAR; RICHARD )

GALLEGOS; LARRY STROUD; JAMES )

BURKS; BRAD FISCHER; AMIHON )

BACA; JEFF DILLOW; PETE MCQUEEN; )

MANUEL MARTINEZ; ARNOLD )

ANTHONY MAESTAS; JOHN HEWATT; )

and ALL OTHERS SIMILARLY SITUATED, )

)

Plaintiffs-Appellees and )

Real Parties in Interest, )

)

and EM; RL; WA; DJ; PS; NW, on )

behalf of themselves and all others similarly )

situated, )

)

Plaintiffs-Intervenors-Appellees )

and Real Parties in Interest, )

)

)

and LAWRENCE A. JOHNSON, )

)

Intervenor. )

)

 v. )

)

CITY OF ALBUQUERQUE; MARTIN )

CHAVEZ, Mayor of Albuquerque; )

COUNTY OF BERNALILLO; PATRICK )

BACA, Bernalillo County Commissioner; )

ALBERT VALDEZ, Bernalillo County )

Commissioner; EUGENE GILBERT, )

Bernalillo County Commissioner; )

BARBARA SEWARD, Bernalillo County )

Commissioner; JACQUELYN SCHAEFER, )

Bernalillo County Commissioner; BILL )

DANTIS, Director, Bernalillo County De- )

tention Center; BERNALILLO COUNTY )

DETENTION CENTER; PAUL SANCHEZ; )

FRANK LOVATO; ERCELL GRIFFIN, )

Deputy Director, Bernalillo County )
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Detention Center; MICHAEL SMITH, )

Lieutenant; JOHN VAN SICKLER, )

Lieutenant; WILL BELL, Officer; )

ALBERT CHAVEZ, Lieutenant; )

RICHARD FUSCO, Lieutenant; GEORGE )

FUENTES; DAVID BACA, Lieutenant; )

VICTOR HERNANDEZ; KEVIN D. )

SEVIR; JIM MASON, Dr.; BARBARA )

COLE; MARIA LUCERO; DAVID )

ROYSTON; FELIMON MARTINEZ, )

Captain; STANLEY LENTS; DOUGLAS )

ROBINSON; SEAL BARLEY; LYNN )

KING; DAVE SHERMAN; BRIAN )

MASER; JOHN DOES, Employees of )

Bernalillo County Detentention Center, )

)

Defendants-Appellants )

and Petitioners, )

)

v. )

)

THE UNITED STATES DISTRICT COURT )

FOR THE DISTRICT OF NEW MEXICO, )

)

Respondent. )

On Petition for Writ of Prohibition and on

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-95-24-MV)

Jeffrey L. Baker, The Baker Law Firm, Albuquerque, New Mexico, for

Defendants-Appellants and Petitioners.

Peter Cubra, Albuquerque, New Mexico, and Elizabeth E. Simpson, Tomita &

Simpson, P.C., Albuquerque, New Mexico (Nancy Koenigsberg, Protection &

Advocacy System, Albuquerque, New Mexico, with them on the brief), for
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Plaintiffs-Intervenors-Appellees and Real Parties in Interest.

Anthony Ayala, Albuquerque, New Mexico, for Plaintiffs-Appellees and Real

Parties in Interest, did not file a brief or present argument.

Before SEYMOUR, Chief Judge, LOGAN and LUCERO, Circuit Judges.

SEYMOUR, Chief Judge.
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This appeal arises out of a class action brought on behalf of all present and

future residents of the Bernalillo County Detention Center (BCDC) against the

City of Albuquerque, Bernalillo County, and City and County officials

responsible for operating the BCDC. Plaintiffs alleged that conditions at the

BCDC were unconstitutional due primarily to extreme overcrowding. The parties

entered into a partial settlement agreement addressing this problem. Defendants

appeal an order that was issued by the district court in the course of implementing

a modification of this agreement. We dismiss the appeal as moot.

I.

Plaintiffs asserted that the severe overcrowding at the BCDC raised

constitutional problems with respect to many aspects of the operation of the

facility, including health, sanitation, and security. On August 23, 1995, the

district court entered a preliminary injunction under which a plan proposed by

defendants to reduce the jail population would be implemented. The court’s order

specifically noted the cooperation of defendants. In granting the injunction, the

court found that the existing facility was designed to house a population of 683

and had a bed capacity of 752. The daily resident population averaged 990,

however, and had at times reached 1100. The court further found that when the

bed capacity was exceeded, inmates slept on stack-a-bunks, mattresses placed on
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the concrete floor, and on the concrete floor directly. Accordingly, the court

imposed a population cap to be phased in by January 1, 1997. The court

acknowledged defendants’ past efforts to address the problems resulting from the

overcrowding and set out three additional steps proposed by defendants for

reducing the population: the construction of additional temporary housing; the

expansion of the BCDC into additional permanent facilities; and the

implementation of a Matrix Release System (MRS) providing for the supervised

release of prisoners if necessary. Without deciding whether the overpopulation

rose to the level of a constitutional violation, the court determined that the

requirements for a preliminary injunction were satisfied and ordered numerous

changes to address violence and health and safety hazards in addition to the

population reduction. On September 7, 1995, the parties entered into a partial

settlement agreement in which they stipulated to conversion of the August 23

order to a permanent injunction and to retention by the court of jurisdiction to

enforce and/or modify the injunction. 

Defendants informed the court in October that the mayor of Albuquerque

opposed the use of the MRS and that it might no longer be a viable option for

reducing the jail population. The court, in turn, directed defendants to file a

motion to modify the stipulated order if they were concerned about their ability to

use the agreed-to reduction system. Defendants did not file a motion to modify. 
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At a November 17 status conference, defendants stated that, as an alternative to

using the MRS, they intended to renovate a city-owned facility called Montessa

Park to provide temporary inmate housing. The court was sympathetic to

defendants’ dilemma and informed them that the proposed alternative housing

would be allowed to replace the required MRS plan if the facilities were habitable

and met constitutional standards. The court suggested that defendants allow

plaintiffs’ counsel to tour Montessa Park and that counsel inform the court if they

had any concerns. Defendants’ counsel agreed to this suggestion and assured the

court that plaintiffs would be given any information they wanted and that

inspection tours would be arranged. At plaintiffs’ request, the court toured both

Montessa Park and proposed facilities in the basement of a state court building

and noted that both sites were habitable. Shortly thereafter defendants began to

use both facilities.

In March 1996, local law enforcement authorities stepped up activities,

leading to an increase in arrests and a corresponding swell in the inmate

population. On Thursday, March 21, defendants notified the court that they had

exceeded the population cap at BCDC the previous weekend and expected to do

so again the following weekend. The court held a hearing on March 22, at which

the court expressed disapproval both of defendants’ failure to address the

anticipated population swell until the last minute and their failure to inform the
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court until the crisis was at hand. The jail director testified that he was looking at

all different types of alternative housing, including the National Guard Armory,

tents, warehouses, and airport hangars. The court determined that the only

available option to reduce immediately the population was the use of tents as

proposed by defendants. The court ordered that any proposed site would have to

be certified by the fire marshal, that plaintiffs’ counsel were to be given the

opportunity to inspect the site, and that the parties were to promptly notify the

court of any other options that might arise to avoid releasing prisoners under the

MRS. 

During a telephone hearing on Sunday, March 24, the parties and the court

agreed that the tents could not be used over the weekend due to the extremely

cold weather. At a status hearing on Monday, the court found that defendants had

violated the injunction by exceeding the population cap at the BCDC during the

two previous weekends, and by housing inmates over the past weekend in an

unauthorized and unapproved trailer near the dump and in an unauthorized and

unapproved warehouse called Montessa II, which the court found was not safe,

secure, or adequate on the basis of the jail director’s testimony. The court

indicated its displeasure with defendants’ failure to apprise it during the Sunday

hearing of the plan to use these facilities, and with defendants’ failure to provide

either plaintiffs or the court an opportunity to tour them. The court stated that it
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would tour the warehouse when informed by defendants that it was suitable for

inmates, and ordered the inmates housed there to be returned to BCDC. Finally,

the court ordered once again that defendants comply with the injunction to which

they had agreed. 

Defendants then requested and received an emergency stay of only that

portion of the district court’s orders which they described as requiring court

inspection prior to the use of temporary housing alternatives to implementation of

the MRS. We now have that issue before us.

The pleadings filed with this court reveal that since the district court’s

March orders, defendants have opened a 300-bed overflow jail facility, that they

have met the scheduled population caps, and that they have voluntarily allowed

inspection of temporary facilities by counsel for plaintiffs. As defendants set out

in their reply brief, “[i]n less than a year, despite obstacles, Defendants have

reduced the population of the BCDC’s existing main facility by almost 300

inmates, and provided safe, secure and adequately staffed alternative housing for

inmates by building a new Westside jail facility and refurbishing additional sites.” 

Appellants Reply Br. at 2. Accordingly, we asked for supplemental briefing

addressing whether we should dismiss this appeal as moot. 
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II.

Mootness is a threshold issue because the existence of a live case or

controversy is a constitutional prerequisite to federal court jurisdiction. Beattie v.

United States, 949 F.2d 1092, 1093 (10th Cir. 1991). This requirement exists at

all stages of federal judicial proceedings, and it is therefore not enough that the

dispute was alive when the suit was filed; the parties must continue to have a

personal stake in the outcome. Id. Because mootness is a matter of jurisdiction,

a court may raise the issue sua sponte. Johnson v. Riveland, 855 F.2d 1477, 1480

(10th Cir. 1988). When a party seeks only equitable relief, as here, past exposure

to alleged illegal conduct does not establish a present live controversy if

unaccompanied by any continuing present effects. Beattie, 949 F.2d at 1094. In

these circumstances, the party must “‘demonstrate a good chance of being

likewise injured in the future.’” Id. at 1093 (quoting Facio v. Jones, 929 F.2d 541,

544 (10th Cir. 1991)). Consequently, we must look beyond the initial controversy

and decide whether the present dispute is sufficiently immediate and real. Id. at

1094.

The material filed with this court relevant to the issue of mootness reveals

the following undisputed facts. Defendants have afforded plaintiffs’ counsel

opportunities to inspect the temporary sites that defendants sought to use on an

emergency basis in March 1996. In addition, plaintiffs assert that the challenged
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order is most appropriately read as covering only the inspection of the emergency

interim facilities at issue during the March 1996 population crisis. To that extent,

the matter is clearly moot. 

Moreover, subsequent to the district court’s March orders, defendants

opened a new 300-bed detention facility. Although this new facility is now

apparently at or near capacity, the already-inspected Montessa I and Montessa II

facilities are available and together provide an additional 246 beds. The last

phased population reduction of the BCDC under the settlement agreement resulted

in the housing of at most sixty inmates in the Montessa facilities. By the time the

final required reduction occurs in January 1997, the expansion of the new facility

from 300 to 400 beds should be completed. The availability of these additional

100 beds, plus the 246 beds provided by the Montessa facilities, demonstrates that

the possibility of an emergency situation again arising requiring the use of

uninspected temporary emergency facilities is remote and speculative. Thus, even

if the district court’s challenged order were meant to extend beyond the

emergency situation in which it arose, the lack of an immediate and real dispute

renders this appeal moot. See, e.g., Doty v. County of Lassen, 37 F.3d 540, 544

(9th Cir. 1994) (opening of new jail facility mooted dispute over imposition of

population caps in old jail); Elston v. Talladega County Bd. of Educ., 997 F.2d

1394, 1424 (11th Cir. 1993) (transfer of students to newly opened school mooted
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challenge to reassignment of students at old school).

In order to find a live controversy, we would have to assume that

defendants will again close their eyes to the anticipated numbers of jail residents,

fail to plan in advance for them, and violate the settlement agreement. We

decline to so speculate. Accordingly, we hold that the appeal is moot.

III.

We turn now to the disposition of the district court’s March orders and the

stay of those orders in light of our determination that the appeal is moot. “When

causes beyond the appellant’s control make a case moot pending appeal, a federal

appellate court generally should vacate the judgment below and remand with a

direction to dismiss.” Otasco, Inc. v. Mohawk Rubber Co. (In re Otasco, Inc.), 18

F.3d 841, 843 (10th Cir. 1994) (citations omitted). “‘That procedure clears the

path for future relitigation of the issues between the parties and eliminates a

judgment, review of which was prevented through happenstance’ and prevents the

moot judgment ‘from spawning any legal consequences.’” Marc Dev., Inc. v.

FDIC, 12 F.3d 948, 949 (10th Cir. 1993) (en banc) (quoting United States v.

Munsingwear, 340 U.S. 36, 40-41 (1950)). When, as here, prior rulings become

moot through circumstances attributable to one of the parties and vacatur is

considered by the court on its own motion, we “will determine whether vacatur
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. . . is appropriate on the basis of the particular circumstances.” Oklahoma Radio

Assocs. v. FDIC, 3 F.3d 1436, 1444 (10th Cir. 1993); see also U.S. Bancorp

Mortgage Co. v. Bonner Mall Partnership, 115 S. Ct. 386, 392-93 (1994).

The circumstances here are certainly unusual. The district court order was

entered during the court’s attempt to accommodate defendants, who had

undisputedly violated the settlement agreement by exceeding the population cap at

the BCDC. Defendants, who appealed the district court order, have since

voluntarily permitted inspections, and likely have ample beds to meet the last

BCDC population cap set for January 1997. Moreover, it is defendants’ actions in

complying with the settlement agreement by creating adequate temporary space

and opening a new facility that have rendered this appeal moot.

Although defendants are, in effect, responsible for mooting this appeal, we

are persuaded we should nevertheless order that those portions of the district

court orders from which defendants appeal be vacated. This is clearly not a case

in which a defendant has manipulated the judicial process by deliberately aborting

appellate review to avoid a decision on the issues. Rather, defendants’ conduct in

complying with the settlement agreement constitutes responsible governmental

conduct to be commended. See American Library Ass’n v. Barr, 956 F.2d 1178,

1187 (D.C. Cir. 1992) (characterizing Congress’s action in mooting case by

passing legislation as responsible lawmaking). Under these circumstances, we are
1Having ordered the district court to vacate the orders appealed from, we

vacate the stay order, McClendon v. City of Albuquerque, 79 F.3d 1014 (10th Cir.

1996), as well. See Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148

(1985) (preliminary injunction order vacated when propriety of that relief

rendered moot); University of Texas v. Camenisch, 451 U.S. 390, 398 (1981)

(same); Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1992) (“In ruling on a

request for an injunction pending appeal, the court must engage in the same

inquiry as when it reviews the grant or denial of a preliminary injunction.”).

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persuaded that defendants should not bear any untoward consequences from their

inability to contest the district court’s March orders on appeal. See Otasco, 18

F.3d at 843 (mooted but unvacated district court order continues to have

preclusive effect).

Accordingly, we dismiss this appeal as moot. We remand this case to the

district court with directions to vacate those portions of its oral orders of March

22 and March 25 memorialized in writing on April 15, 1996, that prohibited

defendants from using alternative facilities to house jail inmates on a temporary

basis without first permitting counsel for plaintiffs to inspect the proposed

facilities and obtaining district court approval prior to their use.1