Jose Morales v. K. Cruse , 483 F. App'x 375 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE LUIS MORALES, No. 11-17355
Plaintiff - Appellant, D.C. No. 4:09-cv-03312-PJH
v.
MEMORANDUM *
K. CRUSE,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Jose Luis Morales, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
constitutional violations in connection with his placement in the Behavioral
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Management Unit (“BMU”) at Pelican Bay State Prison. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal on the basis of mootness,
Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir. 2012), and we consider sua sponte
whether a party lacks standing, Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th
Cir. 2009). We may affirm on any ground supported by the record. Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly determined that Morales’s claims for injunctive
and declaratory relief were moot because the record indicates that Morales has
been released from the BMU and that the BMU has been eliminated at Pelican
Bay. See Alvarez, 667 F.3d at 1063-65 (injunctive and declaratory relief became
moot upon inmate’s release from custody because he was no longer subject to the
prison conditions or policies he challenged, and exceptions to mootness did not
apply); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (inmate’s release
generally will moot any pending claims for injunctive relief relating to prison’s
policies). To the extent that Morales sought to challenge a system-wide BMU
policy, he lacks standing because he is no longer subject to that policy. See City of
Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (to obtain standing, a plaintiff must
show “real or immediate threat” of being subject to the challenged procedures).
2 11-17355
The district court did not abuse its discretion in taking judicial notice of the
elimination of the BMU at Pelican Bay, which Morales does not dispute. See Lee
v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (reviewing for an abuse
of discretion, and noting that district court may take judicial notice of matters of
public record without converting a motion to dismiss into a motion for summary
judgment); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) (court may take
judicial notice of “[r]ecords and reports of administrative bodies”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
3 11-17355