Ralph Coleman v. Gavin Newsom

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RALPH COLEMAN; WINIFRED Nos. 18-16445
WILLIAMS; DAVID J HEROUX; 19-15006
DAVID MCKAY; JOSEPH ROY,
D.C. No.
Plaintiffs-Appellees, 2:90-cv-00520-KJM-DB
v.
MEMORANDUM*
GAVIN NEWSOM, Governor of the State
of California; RALPH DIAZ, Secretary of
the California Department of Corrections
and Rehabilitation; KEELY BOSLER,
Director of the Department of Finance;
STEPHANIE CLENDENIN, Director of
the Department of State Hospitals,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted December 6, 2019
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SILER,** BYBEE, and R. NELSON, Circuit Judges.
Appellants appeal portions of the district court’s July 3, 2018 order limiting
the California Department of Corrections and Rehabilitation’s (CDCR’s) use of
telepsychiatry for certain inmates and directing the Special Master to draft a
telepsychiatry policy incorporating those limitations. The parties are familiar with
the facts, so we do not recite them here. Because we lack jurisdiction, we dismiss
the appeal.1
We have jurisdiction over a district court’s order “granting” or “modifying”
an injunction. 28 U.S.C. § 1292(a)(1). When, as here, the district court’s order
does not on its face grant an injunction, the order is appealable only if the order (1)
has the “practical effect” of granting an injunction, (2) has “serious, perhaps
irreparable consequences” for the appellant, and (3) “can be effectively challenged
only by immediate appeal.” Thompson v. Enomoto, 815 F.2d 1323, 1326–27 (9th
Cir. 1987) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)).
The July 2018 order does not meet these requirements. The telepsychiatry
limitations articulated in the order merely reiterate the same limitations enumerated
in the district court’s October 10, 2017 order, which Appellants chose not to
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
1
The parties’ motions to take judicial notice are GRANTED.
2
appeal. Appellants argue that the language of the telepsychiatry limitations in the
October 2017 order was permissive, so the mandatory language used in the July
2018 order imposed a new injunction. We find this argument unpersuasive. The
October 2017 order was sufficiently clear that the telepsychiatry limitations were
mandatory. Accordingly, the telepsychiatry limitations contained in the July 2018
order do not have the “practical effect” of granting an injunction. Thompson, 815
F.2d at 1326.
The same is true of the July 2018 order’s direction that the Special Master
draft a telepsychiatry policy. An injunction is an order “(1) directed to a party, (2)
enforceable by contempt, and (3) designed to accord or protect some or all of the
substantive relief sought by [the] complaint in more than preliminary fashion.”
Orange Cty. Airport Hotel Assocs. v. Hongkong & Shanghai Banking Corp., 52
F.3d 821, 825 (9th Cir. 1995) (internal quotation marks omitted). This provision
of the July 2018 order is not directed at Appellants. Rather, it is directed at the
Special Master. Indeed, Appellants need not do anything in response to this
provision. It thus did not have the “practical effect” of granting an injunction. See
Thompson, 815 F.2d at 1326. Nor does this provision modify an existing
injunction, as it did not “substantially change[] the terms and force” of the Order of
3
Reference issued by the district court in 1995. See Gon v. First State Ins. Co., 871
F.2d 863, 866 (9th Cir. 1989).
Our lack of jurisdiction over this appeal is reinforced because Appellants can
obtain the relief they seek in a later appeal. See United States v. El Dorado Cty.,
704 F.3d 1261, 1265 (9th Cir. 2013) (noting that appellate jurisdiction over an
interlocutory order is likely improper when a party “can appeal the same legal
issues” and seek “‘relief [that] will be available at a later date, in the ordinary
course of litigation’” (quoting L.A. Mem’l Coliseum Comm’n v. Nat’l Football
League, 634 F.2d 1197, 1202 (9th Cir. 1980))). The district court has never
ordered Appellants to comply with the telepsychiatry policy drafted by the Special
Master pursuant to the July 2018 order. Instead, the parties are preparing for a trial
on whether CDCR’s use of telepsychiatry complies with the Eighth Amendment
and, if it does, what limitations on telepsychiatry should apply. Depending on the
outcome of that trial, Appellants can obtain the relief they seek in the district court.
And if Appellants are unsuccessful at trial, Appellants can seek relief from this
court by appealing any order issued by the district court after that trial is complete.
Thus, the legal issues encompassed by the July 2018 order can be “effectively
challenged” in a later appeal. See Thompson, 815 F.2d at 1327.
4
APPEAL DISMISSED.2
2
Appellants were sued in their official capacities in the district court.
Because of intervening changes in California’s government, the individuals listed
in the caption on the docket no longer occupy the government positions described
in the caption. Concurrent with filing this disposition, the Clerk is directed to
amend the caption so that it lists the individuals who currently occupy those
positions, as reflected in the caption on this Memorandum.
5