Howard Ackerman v. Nevada Dept. of Corrections ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD ACKERMAN, No. 14-16696
Plaintiff-Appellant, D.C. No.
2:11-cv-00883-GMN-PAL
v.
STATE OF NEVADA DEPARTMENT OF MEMORANDUM*
CORRECTIONS; BRIAN E. SANDOVAL,
in his official and individual capacity;
ROSS MILLER, in his official and
individual capacity; CATHERINE
CORTEZ MASTO, Esquire; JAMES COX,
in his official and individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted October 20, 2016**
San Francisco, California
Before: GRABER and MURGUIA, Circuit Judges, and COLLINS,*** Chief
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raner C. Collins, Chief United States District Judge
District Judge.
Howard Ackerman appeals the district court’s orders denying a proposed
class action settlement, decertifying a stipulated class, and denying his request for
attorney’s fees. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss in
part and affirm in part.
1. We must raise issues of mootness sua sponte. Gator.com Corp. v. L.L.
Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc). Ackerman admitted
that, by May 2013, the Nevada Department of Corrections served food that was
properly certified as kosher by an appropriate rabbinic organization. Ackerman
did not file a motion to re-certify the class and did not oppose Defendants’ motion
to dismiss the case. And Ackerman states in his opening brief that he prevailed in
the district court. Thus, Ackerman’s claims are moot, and we lack jurisdiction to
consider Ackerman’s appeal of the district court’s denial of a proposed class action
settlement and decertification of the stipulated class. See Tate v. Univ. Med. Ctr. of
S. Nev., 606 F.3d 631, 634 (9th Cir. 2010) (holding that a court lacks jurisdiction
when the issues in a case are no longer live).
2. The district court’s decision denying a request for attorney’s fees is
for the District of Arizona, sitting by designation.
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reviewed for abuse of discretion. Lane v. Residential Funding Corp., 323 F.3d
739, 742 (9th Cir. 2003). Under the Prison Litigation Reform Act (PLRA), a
district court cannot award attorney’s fees to a prisoner plaintiff unless the plaintiff
proves “an actual violation of the plaintiff’s rights.” 42 U.S.C. § 1997e(d)(1)(A);
see also Kimbrough v. California, 609 F.3d 1027, 1031–32 (9th Cir. 2010). Here,
the district court denied Ackerman’s request for attorney’s fees because Ackerman
never proved that his rights were actually violated, as required by the PLRA. The
fact that Ackerman temporarily obtained a preliminary injunction does not
establish that his rights were actually violated. Kimbrough, 609 F.3d at 1032.
Ackerman does not identify any other decision that might qualify as a finding that
his rights were violated. The district court did not abuse its discretion by denying
Ackerman’s request for attorney’s fees.
DISMISSED in part; AFFIRMED in part.
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