Jorge Andrade Rico v. James Robertson, in his capacity as Warden, Pelican Bay State Prison

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ANDRADE RICO,
Plaintiff-Appellant,
v.
JAMES ROBERTSON, in his capacity as
Warden, Pelican Bay State Prison, et al.,
Defendants-Appellees,
and
MICHAEL STAINER; et al.,
Defendants.
No. 21-16880
D.C. No.
2:17-cv-01402-KJM-DB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted November 14, 2022
San Jose, California
Before: GRABER, TALLMAN, and FRIEDLAND, Circuit Judges.
Dissent by Judge FRIEDLAND.
Plaintiff-Appellant Jorge Rico is an inmate in the custody of the California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Department of Corrections and Rehabilitation at Pelican Bay State Penitentiary
(“Pelican Bay”) in Northern California, where he is serving a life sentence. He
seeks declaratory and injunctive relief under 42 U.S.C. § 1983, alleging that
Pelican Bay’s court-ordered suicide-prevention system for inmates in segregated
housing (“Guard One”) makes so much noise that it deprives him of sleep, in
violation of the Eighth Amendment. The district court dismissed Rico’s claims as
moot because he has been released from administrative segregation and is no
longer subject to Guard One welfare checks. We affirm.
For a federal court to exercise jurisdiction under Article III, an “actual and
concrete dispute[]” must exist between the parties throughout the litigation. United
States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) (quoting Genesis
HealthCare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)). If, during proceedings, the
dispute ceases to exist, the case is moot and falls “outside the jurisdiction of the
federal courts.” Id. Rico admits that he is no longer subject to the challenged
suicide prevention checks, but he argues that this case falls within an exception to
mootness for controversies that are capable of repetition yet evading review
because he could be sent back to administrative segregation in the future. Under
that exception, a court is not deprived of jurisdiction if “there is a reasonable
expectation that the same complaining party will be subjected to the same action
again” and “the challenged action is in its duration too short to be fully litigated

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prior to its cessation or expiration.” Id. at 1540 (quoting Turner v. Rogers, 564
U.S. 431, 439–40 (2011)).
In considering whether a party “reasonably” expects he will be subject to the
challenged conduct again, courts must assume that “[litigants] will conduct their
activities within the law and so avoid prosecution and conviction as well as
exposure to the challenged course of conduct.” Id. at 1541 (quoting O’Shea v.
Littleton, 414 U.S. 488, 497 (1974)); see also Dilley v. Gunn, 64 F.3d 1365, 1369
(9th Cir. 1995) (finding no reasonable expectation that a prisoner would be
transferred back to a high-security facility because he would be transferred “only if
he were to commit a serious violation of prison rules”). Here, the record shows
that Rico has been sent to administrative segregation only for disciplinary reasons:
First, on May 20, 2014, Rico was placed in segregation for attempting to murder
another inmate. Second, on July 13, 2017, Rico was sent to segregation for
assaulting a correctional officer. No evidence suggests that Rico has been or will
be placed in administrative segregation (and therefore exposed to the challenged
welfare checks) for a non-disciplinary reason.
Rico argues that in evaluating whether this controversy is capable of
repetition, we also should consider the reasons why other inmates have been
placed in administrative segregation. But, given the limited reasons for non-
disciplinary administrative segregation, such evidence cannot establish that Rico—

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as opposed to some other inmate—will be placed in administrative segregation for
a non-disciplinary reason. Because Article III jurisdiction requires that the
plaintiff “show a personal stake in the outcome of the action,” a controversy is not
capable of repetition unless “there is a reasonable expectation that the same
complaining party will be subjected to the same action.” Sanchez-Gomez, 138 S.
Ct. at 1537, 1540 (emphasis added) (cleaned up); Sample v. Johnson, 771 F.2d
1335, 1339 (9th Cir. 1985) (“The question then is whether the practices to which
appellants object are capable of repetition as to them.”). Evidence about other
inmates may show that Rico could, in theory, be held in administrative segregation
for non-disciplinary reasons—but the “mere possibility” of involuntary recurrence
is not enough to avoid mootness. Sample, 771 F.2d at 1342 (citation omitted).
If Rico is held in administrative segregation in the future for a reason other
than his own misconduct, he is of course free to bring a new action, which could
very well fall within the exception to mootness for cases capable of repetition yet
evading review. But on this record, the district court correctly ruled that his claim
is moot.
AFFIRMED.

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Rico v. Robertson
21-16880
Friedland, J., dissenting:
I would vacate dismissal and remand to the district court with instructions to
grant Rico’s request for jurisdictional discovery. See Laub v. U.S. Dep’t of
Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). Without more information about
prison practices, it is impossible to assess the likelihood that Rico would be placed
in administrative segregation in the future for reasons other than his own
misconduct—and thus it is impossible to assess whether this case falls within the
“capable of repetition, yet evading review” exception to mootness. Despite his not
having been moved to administrative segregation for non-disciplinary reasons in
the past,1 if Rico could show that all prisoners face a reasonable likelihood of
being moved to administrative segregation for non-disciplinary reasons at some
point, Rico would be able to satisfy the “capable of repetition” prong of the
mootness exception. See Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (explaining
that “capable of repetition” does not require that the recurrence be more probable
than not but only that it be reasonably likely). Information about the frequency of
1 To fall within the “capable of repetition, yet evading review” exception to
mootness, the repeated conduct need not occur for exactly the same reason or in
the exact same way as it did in the past. See, e.g., Where Do We Go Berkeley v.
Cal. Dep’t of Transp., 32 F.4th 852, 859 (9th Cir. 2022).
FILED
DEC 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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placements in administrative segregation for non-disciplinary reasons is in the
prison’s sole possession, and Rico should have been given the opportunity to
obtain that information in discovery before responding to Defendants’ argument
that the case should be dismissed on mootness grounds.

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