Petition for Writ of Certiorari — Don Barnes, Sheriff, Orange County, California, et al., Petitioners v. Melissa Ahlman, et al.

APPENDIX A

Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 20A19

DON BARNES, SHERIFF, ORANGE

COUNTY, CALIFORNIA, ET AL. v.

MELISSA AHLMAN, ET AL.

ON APPLICATION FOR STAY

[August 5, 2020]

The application for stay presented to JUSTICE

KAGAN and by her referred to the Court is granted,

and the district court’s May 26, 2020 order granting a

preliminary injunction is stayed pending dispose-tion

of the appeal in the United States Court of Appeals for

the Ninth Circuit and disposition of the petition for a

writ of certiorari, if such writ is timely sought. Should

the petition for a writ of certiorari be denied, this stay

shall terminate automatically. In the event the

petition for a writ of certiorari is granted, the stay

shall terminate upon the sending down of the

judgment of this Court.

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Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

JUSTICE BREYER and JUSTICE KAGAN would

deny the application.

JUSTICE SOTOMAYOR, with whom JUSTICE

GINSBURG joins, dissenting from the grant of stay.

Today, this Court steps in to stay a preliminary

injunction requiring Sheriff Don Barnes and Orange

County (collectively, the Orange County Jail, or Jail)

to implement certain safety measures to protect their

inmates during the unprecedented COVID-19 pandemic. The injunction’s requirements are not

remarkable. In fact, the Jail initially claimed that it

had already implemented each and every one of them.

Yet, apparently disregarding the District Court’s

detailed factual findings, its application of established

law, and the fact that the Court of Appeals for the

Ninth Circuit has twice denied a stay pending its

review of the District Court’s order, this Court again

intervenes to grant a stay before the Circuit below has

heard and decided the case on the merits. See Little v.

Reclaim Idaho, ante; at 1, and n. 1 (SOTOMAYOR, J.,

dissenting from grant of stay) (noting the frequency

with which the Court has begun granting such stays).

The Jail’s application does not warrant such

extraordinary intervention. Indeed, this Court stays

the District Court’s preliminary injunction even

though the Jail recently reported 15 new cases of

COVID-19 in a single week (even with the injunction

in place), even though the Jail misrepresented under

oath to the District Court the measures it was taking

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Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

to combat the virus’ spread, and even though the Jail’s

central rationale for a stay (that the injunction goes

beyond federal guidelines) ignores the lower courts’

conclusion that the Jail’s measures fell “well short” of

the Centers for Disease Control and Prevention (CDC)

Guidelines. 2020 WL 3547960, *4 (CA9, June 17,

2020).

I

The Orange County Jail currently houses a

population of over 3,000 pretrial detainees and

inmates. At the time of the District Court’s injunction,

the Jail had witnessed an increase of more than 300

con-firmed COVID-—19 cases in a little over a month.

The Jail, moreover, was well aware of the risk that the

virus could spread rapidly through its congregate

population and that addressing that risk would

require certain precautionary measures. The District

Court found that several organizations, including a

group of Orange County Sheriff deputies, had

“repeatedly warned ... of the dangers from COVID-—

19 in the Jail.” __—s-—*F. Supp. 3d __, __, 2020 WL

2754938, *12 (CD Cal., May 26, 2020). Indeed, the Jail

claims that it sprang into action as soon as the Jail’s

first documented case of COVID-19 appeared in

March of 2020, collaborating closely with local health

officials on preventative measures to contain the

virus’ spread. When respondents brought suit,

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BARNES v. AHLMAN

Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

seeking an injunction that would require the Jail to

implement a number of safety measures to protect

inmates against the virus, the Jail told the District

Court that such relief was not needed because it had,

“at a minimum, already implemented all of the

mitigation efforts” requested. Decl. of Joseph Balicki

in No. 8: 20—cv—00835, Doc. 44-10, J 2 (CD Cal., May

12, 2020) (Balicki Decl.); see also id., § 9 (“There is not

a single ‘mitigation effort’ outlined in Plaintiffs’

Complaint that has not already been implemented in

the jails”). The Jail claimed that it had already

achieved proper social distancing, provided inmates

enough soap for frequent handwashing, and isolated

and tested all symptomatic individuals.

Dozens of inmate declarations told a different

story. Although the Jail had been warned that “social

distancing is the cornerstone of reducing transmission

of COVID-19,” Exh. B to Balicki Decl., Doc. 44-12,

inmates described being transported back and forth to

the jail in crammed buses, socializing in day-rooms

with no space to distance physically, lining up next to

each other to wait for the phone, sleeping in bunk beds

two to three feet apart, and even being ordered to

stand closer than six feet apart when inmates tried to

socially distance. Moreover, although the Jail told its

inmates that they could “best protect” themselves by

washing their hands with “soap and water throughout

the day,” Exh. C to Balicki Decl., Doc. 44-13,

numerous inmates reported receiving just one small,

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Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

hotel-sized bar of soap per week. And after

symptomatic inmates were removed from their units,

other inmates were ordered to dispose of their

belongings without gloves or other protective

equipment. Finally, despite the Jail’s stated policy to

test and isolate individuals who reported or exhibited

symptoms consistent with COVID-19, multiple

symptomatic detainees described being denied tests,

and others recounted sharing common spaces with

infected or symptomatic inmates.

II

Based on detailed factual findings, which the

Ninth Circuit credited, the District Court concluded

that the risk of harm in the Jail was “undeniably

high.” __—si#F. Supp. 3d, at ____, 2020 WL 2754938, *10.

The court further determined that while the Jail may

have formally adopted a policy to mitigate that risk,

its actual compliance was “piecemeal and

inadequate.” [bid. On this evidence, the District Court

held that respondents were likely to succeed in

showing that the Jail was deliberately indifferent to

the health and safety of its inmates and that it had

violated federal disability rights law. In response, the

court imposed a preliminary injunction that closely

followed the CDC Guidelines for correctional and

detention facilities.

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BARNES v. AHLMAN

Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

This Court now stays that injunction, even though

this case presents none of the typical indicia

warranting certiorari. See Maryland v. King, 567 U.

S. 1301, 1801 (2012) (ROBERTS, C. J., in chambers)

(an applicant for a stay “must demonstrate (1) ‘a

reasonable probability that this Court will grant

certiorari, (2) ‘a fair prospect’ that the Court will then

reverse the decision below, and (8) ‘a likelihood that

irreparable harm [will] result from the denial of a

stay” (quoting Conkright v. Frommert, 556 U.S. 1401,

1402 (2009) (GINSBURG, J., in chambers))). The

District Court and Ninth Circuit applied wellestablished law to the particular facts of this case to

conclude that the Jail knew of and disregarded an

“excessive risk to inmate health or safety.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994). That conclusion is

not clearly wrong. The Jail argues that, because it

voluntarily released 53 percent of its population, it

necessarily could not have been deliberately

indifferent to the needs of its inmates. But the release

of even a large number of inmates does not absolve the

Jail of its responsibility for the health and safety of

the roughly 3,000 individuals left behind. And while

the Jail claims that it largely implemented the CDC

Guidelines and radically increased hygiene and

cleaning within its walls, the District Court, whose

factual findings are owed deference, found the reality

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SOTOMAYOR, J., dissenting

to be very different.’ The District Court concluded

that by demonstrating the Jail’s failure to implement

basic safety measures of which it was well aware,

respondents had established a likelihood of success on

their claim that the Jail had been deliberately

indifferent to the serious risk COVID-—19 posed to the

health of its inmates.

Even if this Court disagrees with the District

Court’s conclusion, “error correction . . . is outside the

mainstream of the Court’s functions and .. . not

among the ‘compelling reasons’. . . that govern the

grant of certiorari.” S. Shapiro, K. Geller, T. Bishop,

E. Hartnett, & D. Himmelfarb, Supreme Court

Practice §5.12(c)(3), p. 5-45 (11th ed. 2019); see also

Farmer, 511 U. S., at 842 (noting that deliberate

indifference is a “question of fact subject to

demonstration in the usual ways, including inference

from circumstantial evidence”). That is especially true

where, as here, the Jail fails to contest an entirely

independent and sufficient ground for the District

Court’s injunction: respondents’ claims under federal

disability rights law.

The Jail nonetheless argues that the Ninth Circuit

created a certworthy circuit split because, in the Jail’s

view, it endorsed a preliminary injunction that went

: Notably, the Jail has since resisted respondents’ attempts to

verify the Jail’s compliance with the District Court’s preliminary

injunction.

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BARNES v. AHLMAN

Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

beyond the CDC Guidelines. But no circuit split exists.

Like other Circuits, the Ninth Circuit considered the

Jail’s request for a stay by applying established law to

the facts and equities before it. Its decision turned on

the conclusion that, in practice, the Jail’s measures

fell “well short” of the CDC Guidelines, not on whether

the District Court’s injunction exceeded them. Indeed,

in a case presenting different facts and equities, the

Ninth Circuit recently stayed an injunction to the

extent it exceeded the CDC Guidelines. See Roman v.

Wolf, 2020 WL 2188048, *1 (CA9, May 5, 2020).

Moreover, the Jail’s claim that “most of’ the

injunction’s requirements exceed the CDC Guidelines

is greatly exaggerated. Application for Stay 10. The

Jail points to just two alleged discrepancies: first, that

the District Court ordered the Jail to provide adequate

spacing of six feet or more between incarcerated

people, whereas the CDC Guidelines suggest only that

six feet of space is “ideal[ ]”; and second, that the

injunction requires daily temperature checks and

screening questions. Jd., at 10-11. As to the former,

the CDC Guidelines acknowledge that social

distancing can be difficult in a correctional facility,

but the Jail has not argued that its physical layout

does not permit it.” And as to the latter, as the Jail

” Moreover, the injunction directs the Jail to “provide adequate

spacing of six feet or more between incarcerated people so that

social distancing can be accomplished in accordance with CDC

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BARNES v. AHLMAN

Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

itself admits, the Guidelines provide for daily

temperature checks in housing units where COVID—

19 has been identified. Indeed, updated CDC

Guidelines now recommend daily symptom and

temperature screening in any correctional facility

with a reported case.

The Jail also faces an uphill battle in its claim of

irreparable harm. The measures it now decries as

vexatious judicial micromanagement are the same

measures that just months ago it claimed were, “at a

minimum,” already being implemented. If the Jail is

already doing everything required by the injunction,

then what irreparable harm does the injunction pose?

And if it is not, and the Jail misrepresented its actions

under oath to the District Court, then why should the

Jail benefit from this Court’s equitable discretion? See

Trump v. International Refugee Assistance Project,

582 U.S.__, ___ (2017) (per curiam) (slip op., at 10)

(“In assessing the lower courts’ exercise of equitable

discretion, we bring to bear an equitable judgment of

our own”). This Court normally does not reward bad

behavior, and certainly not with extraordinary

guidelines,”__ F. Supp. 8d___,__, 2020 WL 2754928, *14 (CD

Cal., May 26, 2020), and therefore arguably requires the Jail to

implement social distancing only to the extent required by the

Guidelines.

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BARNES v. AHLMAN

Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

equitable relief. And while “[c]ourts must be sensitive

to the .. . need for deference to experienced and expert

prison administrators,” they “may not allow

constitutional violations to continue simply because a

remedy would involve intrusion into the realm of

prison administration.” Brown v. Plata, 563 U.S. 493,

511 (2011).

wR *K

At the time of the injunction, there were nearly

3,000 inmates still in the Jail’s care, 488 of whom were

medically vulnerable to COVID—-19. “[H]aving

stripped them of virtually every means of selfprotection and foreclosed their access to outside aid,

the government and its officials’ must “take

reasonable measures to guarantee thefir] safety.”

Farmer, 511 U.S., at 832-838; see also Valentine v.

* Given the nature of the “rare and exceptional” relief the Jail

seeks, Fargo Women’s Health Organization v. Schafer, 507 U.S.

10138, 1014 (1993) (O°;CONNOR, J., concurring in denial of

application), this Court has an independent obligation to weigh

the equities. The Jail’s misrepresentations to the District Court

are one factor to consider. Another is that on the very same day

it asked this Court to intervene in its pending appellate

proceedings, the Jail requested from the Ninth Circuit a 1-month

extension to file its opening brief. One might wonder, then,

whether the Jail’s need for relief is quite as urgent as the Jail

makes out.

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BARNES v. AHLMAN

Cite as: 591 U.S. (2020)

SOTOMAYOR, J., dissenting

Collier, 590 U. S.___, _ — (2020) (statement of

SOTOMAYOR, J.) (slip op., at 6-7) (“It has long been

said that a society’s worth can be judged by taking

stock of its prisons. That is all the truer in this

pandemic, where inmates everywhere have been

rendered vulnerable and often powerless to protect

themselves from harm”). The District Court found

that, despite knowing the severe threat posed by

COVID-19 and contrary to its own apparent policies,

the Jail exposed its inmates to significant risks from

a highly contagious and potentially deadly disease.

Yet this Court now intervenes, leaving to its own

devices a jail that has misrepresented its actions to

the District Court and failed to safeguard the health

of the inmates in its care. I respectfully dissent.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 20-55568, 20-55668

MELISSA AHLMAN; DANIEL KAUWE;

MICHAEL SEIF; JAVIER ESPARZA;

PEDRO BONILLA; CYNTHIA CAMPBELL;

MONIQUE CASTILLO; MARK TRACE;

CECIBEL CARIDAD ORTIZ; DON WAGNER,

on behalf of themselves and all others similarly

situated, Plaintiffs-Appellees,

Vv.

DON BARNES, in his official capacity as Sheriff of

Orange County, California; COUNTY OF ORANGE,

Defendants-Appellants.

OPINION

Appeal from the United States District Court

for the Central District of California

Jesus G. Bernal, District Judge, Presiding

Argued and Submitted September 1, 2021

Pasadena, California

[Filed December 10, 2021]

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AHLMAN vy. BARNES

BEFORE: SANDRA S. IKUTA, MARK J. BENNETT,

AND RYAN D. NELSON, Circuit Judges.

OPINION BY JUDGE R. NELSON

SUMMARY —

Prisoner Civil Rights

The panel dismissed as moot an action brought

pursuant to 42 U.S.C. § 1983 by several inmates in

Orange County jails against the County and the

sheriff for alleged failure to combat COVID-19.

The district court granted Plaintiffs’ provisional

class certification and issued a preliminary injunction

under the Prison Litigation Reform Act (“PLRA”),

which required the County to implement increased

protective measures. The district court denied a stay

pending appeal, as did this court, in a split disposition.

See Ahiman v. Barnes, No. 20-55568, 2020 WL

3547960, at *5 (9th Cir. June 17, 2020). This court

remanded the case to the district court to determine

in the first instance whether changed circumstances

warranted modification or dissolution of the

preliminary injunction. On remand, the district court

did not dissolve the preliminary injunction, but

granted plaintiffs’ motion for expedited discovery. The

*

This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

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AHLMAN v. BARNES

County then filed a new notice of appeal of the district

court’s orders on remand. In the meantime, the

United States Supreme Court granted the County’s

emergency application, staying the preliminary

injunction pending disposition of the appeal in the

Ninth Circuit and, as appropriate, at the Supreme

Court. Barnes v. Ahlman, 140 §S. Ct. 2620, 2620

(2020).

The panel held that because the PLRA provides

that any preliminary injunction automatically expires

90 days after being issued (absent further

finalization), the injunction and provisional class

certification were no longer in effect and the appeal

was moot. The panel rejected the County’s contention

that the Supreme Court’s emergency stay of the

preliminary injunction saved this appeal from

mootness. The panel stated that while the Supreme

Court’s stay may have prevented the injunction from

having any further effect, it did not toll the 90-day

limit unambiguously detailed in the PLRA. Indeed,

the court’s traditional equitable power is expressly

proscribed by the PLRA’s plain statutory limitations,

as the Supreme Court has held in a similar PLRA

provision in Miller v. French, 530 U.S. 327 (2000).

The panel rejected the County’s assertion that the

appeal fell within an exception to mootness because

the issue was capable of repetition but evading review.

The County argued that if this appeal was dismissed,

plaintiffs would likely request another injunction,

thus satisfying the second factor of the capable-ofrepetition test, a reasonable likelihood that the same

party will be subject to the action again. The panel

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AHLMAN v. BARNES

noted that circumstances had changed since the

original injunction issued and given the Supreme

Court’s stay of the injunction, any subsequent

injunction would have to be analyzed under the

correct Constitutional framework. Thus, the chance

that plaintiffs would successfully acquire another

preliminary injunction, at least without significantly

worse conditions than previously existed, was remote.

Certainly, any subsequent injunction would be based

on an entirely new set of factual circumstances.

Because the second factor of the capable-of repetition

test was not satisfied, no exception to mootness

applied.

The panel held that to the extent the provisional

class certification was proper under Federal Rule of

Civil Procedure 28, it depended on, and was in service

of, its preliminary injunction. If the preliminary

injunction is infirm, the class certification necessarily

fails as well, regardless of whether class certification

was otherwise proper under Federal Rule of Civil

Procedure 23. Thus, the provisional class certification

expired along with the preliminary injunction.

COUNSEL

Kayla N. Watson (argued), Deputy County Counsel;

D. Kevin Dunn (argued) and Rebecca S. Leeds, Senior

Deputies County Counsel; Laura D. Knapp,

Supervising Deputy County Counsel; Leon J. Page,

County Counsel; Office of the County Counsel, Santa

Ana, California; for Defendants-Appellants.

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AHLMAN v. BARNES

Stacey Grigsby (argued) and Amia Trigg, Covington &

Burling LLP, Washington, D.C.; Mitchell Kamin and

Aaron Lewis, Covington & Burling LLP, Los Angeles,

California; Paul Hoffman, Schonbrun Seplow Harris

& Hoffman LLP, Hermosa Beach, California; John

Washington, Schonbrun Seplow Harris Hoffman &

Zeldes LLP, Los Angeles, California; Cassandra

Stubbs, American Civil Liberties Union Foundation,

Durham, North Carolina; Carl Takei, American Civil

Liberties Union Foundation, New York, New York;

Zoe Brennan-Krohn, American Civil Liberties Union

Foundation, Immigrants’ Rights Project, San

Francisco, California; Peter Eliasberg, American Civil

Liberties Fund of Southern California, Los Angeles,

California; for Plaintiffs-Appellees.

OPINION

R. NELSON, Circuit Judge:

Several inmates in Orange County jails brought §

1983 and other federal claims against the County and

the sheriff for alleged failure to combat COVID-19.

The district court granted Plaintiffs’ provisional class

certification and issued a preliminary injunction

under the Prison Litigation Reform Act (“PLRA”).

Because the PLRA provides that any preliminary

injunction automatically expires 90 days after being

issued (absent further finalization), the injunction

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AHLMAN vy. BARNES

and provisional class certification are no longer in

effect. We therefore dismiss the appeal as moot.

I

Several inmates sued the County of Orange

(“County”), alleging an unconstitutional failure to

effectively combat COVID-19 within the jails.

Plaintiffs sought a preliminary injunction under the

PLRA, along with provisional class certification for

purposes of seeking that preliminary injunction. The

district court granted provisional class certification

and granted in part and denied in part Plaintiffs’

application for a preliminary injunction.

The preliminary injunction required the County to

provide “adequate spacing of six feet or more between

incarcerated people”; self-hygiene supplies such as

hand soap, paper towels, hand sanitizer, and

disinfectant products; and “access to daily showers . .

. [and] clean laundry, including clean personal towels

and washrags after each shower.” The County also

had to “require that all Jail staff wear personal

protective equipment, .. . wash their hands, apply

hand sanitizer, ... or change their gloves both before

and after interacting with any person or touching

surfaces.” Finally, the County had to (1) “take the

temperature of all class members, Jail staff, and

visitors daily”; (2) “assess (through questioning) each

incarcerated person daily to identify potential

COVID-19 infections”; (3) “conduct immediate testing

for anyone... displaying known symptoms of COVID-

19”; (4) “respond to all emergency . . . requests for

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AHLMAN v. BARNES

medical attention within an hour”; (5) “waive all

medical co-pays for those experiencing COVID-19-

related symptoms’; and (6) “ensure that individuals

identified as having COVID-19 or having been

exposed to COVID-19 receive adequate medical care

and are properly quarantined .. . in a nonpunitive

setting, with continued access to showers, recreation,

mental health services, reading materials, phone and

video visitation with loved ones, communications with

counsel, and personal property.

The district court denied a stay pending appeal. So

did this court, in a split disposition. See Ahlman uv.

Barnes, No. 20-55568, 2020 WL 3547960, at *5 (9th

Cir. June 17, 2020). We remanded the case to the

district court to determine in the first instance

whether changed circumstances warranted

modification or dissolution of the preliminary

injunction. Jd. One judge dissented in part and would

have granted the stay because the order granting the

preliminary injunction was “wrong both on the law

and the facts,” and required the County “to comply

with safety requirements exceeding the CDC’s Interim

Guidance on Management of Coronavirus Disease

2019 (COVID-19) in Correctional and Detention

Facilities.” Id. at *5-6 (R. Nelson, J., concurring in

part and dissenting in part) (emphasis in original).

Moreover, the County had implemented “increased

protective measures ... well prior to the issuance of

the injunction . . . [which] resulted in a drastically

decreased COVID-19 infection rate within the jail.” Jd.

at *5 (R. Nelson, J., concurring in part and dissenting

in part) (emphasis in original). Thus, the County was

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“likely to succeed on the merits” of the constitutional

challenges. Jd. at *6 (R. Nelson, J., concurring in part

and dissenting in part).

On remand, the district court did not dissolve the

preliminary injunction, but granted Plaintiffs’ motion

for expedited discovery. The County then filed this

new notice of appeal of the district court’s orders on

remand. In the meantime, however, the United States

Supreme Court granted the County’s emergency

application, staying the preliminary injunction

pending disposition of the appeal in the Ninth Circuit

and, as appropriate, at the Supreme Court. Barnes v.

Ahiman, 140 S. Ct. 2620, 2620 (2020)

Plaintiffs then moved to dismiss this appeal as

moot. They argue that the preliminary injunction

automatically expired 90 days after its issuance under

the PLRA. The County argues that the appeal is not

moot because the Supreme Court stay “suspend[s] in

place” the injunction, thus keeping it alive beyond its

expiration; and, in any event, the issue is capable of

repetition and will evade review.

I

Hf

’ For the Supreme Court to grant an application for a stay, “an

applicant ... must demonstrate (1) a reasonable probability that

[the Supreme] Court will grant certiorari, (2) a fair prospect that

the court will then reverse the decision below, and (8) a likelihood

that irreparable harm will result from the denial of a stay.”

Barnes, 140 S. Ct. at 2622 (Sotomayor, J., dissenting) (cleaned

up).

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II

The district court had subject matter jurisdiction

under 28 U.S.C. § 1331. We have “jurisdiction to

review a grant of a preliminary injunction under 28

U.S.C. § 1292(a)(1).” Chamber of Com. of U.S. v.

Bonta, 13 F.4th 766, 773 n.1 (9th Cir. 2021). Before

reaching the merits of the appeal, however, “we first

address... the question of mootness,” because when

an appeal is moot, we “lack[] jurisdiction and must

dismiss the appeal.” Shell Offshore Inc. v. Greenpeace,

Inc., 815 F.3d 623, 628 (9th Cir. 2016). “Generally, the

expiration of an injunction challenged on appeal

moots the appeal.” Norbert v. City & Cnty. of San

Francisco, 10 F.4th 918, 926-27 (9th Cir. 2021)

(cleaned up).

III

A

The district court issued the _ preliminary

injunction under the PLRA. See 18 U.S.C. § 3626. The

PLRA states that any prospective relief relating to

prison conditions must be narrowly drawn, go no

further than necessary, and be the least intrusive

remedy. Jd. § 3626(a)(1)(A). The statute provides more

limitations for preliminary injunctions: the injunction

“shall automatically expire on the date that is 90 days

after its entry, unless the court makes the findings

required under subsection (a)(1) .. . and makes the

order final.” Id. § 3626(a)(2).

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“We begin with the statutory text, and end there

as well if the text is unambiguous. When the statute’s

language is plain, the sole function of the courts is to

enforce it according to its terms.” Connell v. Lima

Corp., 988 F.3d 1089, 1097 (9th Cir. 2021) (cleaned

up). The statutory text of the PLRA unambiguously

states that any preliminary injunction expires

automatically after 90 days unless the district court

makes subsequent required findings and makes the

order final. The district court did not make such

findings under § 38626(a)(1)(A). Given the plain

statutory language, we have little pause in holding

that the preliminary injunction has expired and this

appeal is moot. See Norbert, 10 F.4th at 926-27. Other

circuits to have considered this question have

similarly held that preliminary injunctions issued

under the PLRA expire automatically after 90 days,

thus making a pending appeal moot. See, e.g., Ga.

Advoc. Off. v. Jackson, 4 F.4th 1200, 1210-11 (11th

Cir. 2021); Banks v. Booth, 3 F.4th 445, 448 (D.C. Cir.

2021).

The County contends that the Supreme Court's

emergency stay of the preliminary injunction saves

this appeal from mootness because a stay holds “a

ruling in abeyance to allow an appellate court the time

necessary to review it.” Nken v. Holder, 556 U.S. 418,

421 (2009); see also Barnes, 140 S. Ct. 2620. We

disagree.

As the Supreme Court recognized, “[a] stay does

not make time stand still.” Nken, 556 U.S. at 421.

While the Supreme Court’s stay may have prevented

the injunction from having any further effect, it did

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not toll the 90-day limit unambiguously detailed in

the PLRA. Indeed, the court’s traditional equitable

power is expressly proscribed by the PLRA’s plain

statutory limitations, as the Supreme Court has held

in a similar PLRA provision in Miller v. French, 530

U.S. 327 (2000). In Miller, the Supreme Court held

that the PLRA automatic stay provision could not be

enjoined by a court’s equitable powers. Jd. at 336—41.

Though courts should “not lightly assume that

Congress meant to restrict the equitable powers of the

federal courts, ... where Congress has made its intent

clear, we must give effect to that intent.” Id. at 336

(cleaned up). The Court held that the PLRA’s text,

such as the use of “shall” instead of “may” and how it

“specifie[d] the points at which the operation of the

stay is to begin and end,” “confirm[ed] that Congress

intended to prohibit federal courts from exercising

their equitable authority to suspend operation of the

automatic stay.” Id. at 337-88. Thus, this provision of

the PLRA was a clear enough congressional command

to “displace [the] courts’ traditional equitable

authority.” Id. at 340.

Likewise, the PLRA provision here clearly “displace[s] [the] courts’ traditional equitable authority.”

Id. Like the automatic stay provision in Miller, 18

U.S.C. § 3626(a)(2) uses a mandatory “shall” when

explaining that preliminary injunctions “shall” expire

90 days after entered. Indeed, § 83626(a)(2) provides no

way to extend a preliminary injunction other than

making the injunctive relief final. Under the statute,

a preliminary injunction shall automatically expire 90

days after entry “unless the court makes the findings

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required under subsection (a)(1) for the entry of

prospective relief and makes the order final before the

expiration of the 90-day period.” § 3626(a)(2). The

district court did not make the relevant findings under

§ 38626(a)(1)(A). Section 3626(a)(2) details the only

way to extend an injunction issued under the PLRA

beyond 90 days. The provision displaces the courts’

traditional equitable power, which includes the power

for a stay of the injunction to extend it beyond 90 days.

Therefore, the injunction here has expired, and the

County’s appeal is moot.

The County still argues, however, that even if

otherwise moot, the appeal falls within an exception

to mootness because the issue is “capable of repetition,

yet evading review.” Native Village of Nuiqsut v.

Bureau of Land Mgmt., 9 F.4th 1201, 1209 (9th Cir.

2021). “In order for [this] exception to apply, (1) the

duration of the challenged action or injury must be too

short to be fully litigated; and (2) there must be a

reasonable likelihood that the same party will be

subject to the action again.” Shell Offshore, Inc. v.

Greenpeace, Inc., 709 F.3d 1281, 1287 (9th Cir. 2013)

(cleaned up). It is likely true that because of the brief

duration of a preliminary injunction under the PLRA,

many such appeals (as here) will not be fully litigated

before the injunction expires. There is little reason to

suspect, however, that the second factor is satisfied

here.

We have held that a reasonable expectation

requires more than “a mere possibility that something

might happen [because this] is too remote to keep

alive a case as an active controversy.” Foster uv.

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AHLMAN v. BARNES

Carson, 347 F.3d 742, 748 (9th Cir. 2003) (emphasis

in original). The County argues that if this appeal is

dismissed, Plaintiffs will likely request another

injunction, thus satisfying the second factor of the

“capable of repetition” test. But throughout this

litigation, the County also maintained that

circumstances had so changed since the original

injunction issued that an injunction was no longer

necessary.

Indeed, we previously remanded for the district

court to reconsider just those changed circumstances.

See Ahlman, 2020 WL 3547960, at *5. There is already

evidence that conditions at the jail have significantly

improved. See id. at *10—11 (R. Nelson, J., concurring

in part and dissenting in part). And, given the

Supreme Court’s stay of the injunction, any

subsequent injunction would have to be analyzed

under the correct Constitutional framework. See

Barnes, 140 S. Ct. at 2620; Ahiman, 2020 WL

3547960, at *6-11 (R. Nelson, J., concurring in part

and dissenting in part) (concluding the district court

misapplied “the Fourteenth Amendment’s objective

analysis [and the] Eighth Amendment’s subjective

analysis”). Thus, the chance that Plaintiffs

successfully acquire another preliminary injunction,

at least without significantly worse conditions than

previously existed, is remote. Certainly, any

subsequent injunction would be based on an entirely

new set of factual circumstances. Because the second

factor of the capable-of-repetition test is not satisfied,

no exception to mootness applies. The appeal is

therefore moot.

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B

To the extent the provisional class certification

was proper under Federal Rule of Civil Procedure 23,

we vacate it because it “depended on, and was in

service of, its preliminary injunction. If the

preliminary injunction is infirm, the class certification

necessarily fails as well, regardless of whether class

certification was otherwise proper under Federal Rule

of Civil Procedure 23.” Fraihat v. U.S. Immigr. and

Customs Enft, 16 F.4th 6138, 635 (9th Cir. 2021). Thus,

the provisional class certification expired along with

the preliminary injunction.

IV

Because the district court’s injunction was not

expressly made final by the district court, the

preliminary injunction expired 90 days after it was

issued under the PLRA. As such, both the preliminary

injunction and provisional class certification have

expired and no longer have any legal effect.

DISMISSED AS MOOT.

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

USDC No. 8:20-cv-00835-JGB-SHK

MELISSA AHLMAN; et al.

Plaintiffs,

Vv.

DON BARNES; et al.

Defendants.

ORDER

[Filed June 26, 2020]

Proceedings: Order (1) DENYING Defendants’ Ex

Parte Application to Dissolve Injunction (Dkt. No.

86); (2) GRANTING Plaintiffs’ Motion for

Expedited Discovery (Dkt. No. 83); (8) DENYING

Plaintiffs Ex Parte Application to Shorten Time

(Dkt. No. 89); and (4) VACATING the July

20, 2020 Hearing (IN CHAMBERS)

le

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AHLMAN v. BARNES

Before the Court is (1) an Ex Parte Application to

Immediately Dissolve Preliminary Injunction file by

Defendants Don Barnes and Orange County; (2) a

Motion for Expedited Discovery filed by Plaintiffs

Melissa Ahlman, Pedro Bonilla, Cynthia Campbell,

Monique Castillo, Javier Esparza, Daniel Kauwe,

Cecibel Caridad Ortiz, Michael Seif, Mark Trace, and

Don Wagner. (“Application,” Dkt. No. 86; “Motion,”

Dkt. No. 83.) The Court finds these matters

appropriate for resolution without a hearing. See Fed.

R. Civ. P. 78; L.R. 7-15. After considering the papers

filed in support of and in opposition to the Motion, the

Court DENIES the Application and GRANTS the

Motion.’ The Court VACATES the hearing set for

July 20, 2020 on the Motion.

I. BACKGROUND

On May 26, 2020, the Court issued an injunction

compelling Defendants to implement several practices

within the Orange County Jails to quell the spread of

COVID-19. (“PI Order,” Dkt. No. 65.) Defendants then

requested that both this Court and the Ninth Circuit

stay the injunction. (Dkt. Nos. 66, 68.) Those requests

were denied. (Dkt. Nos. 72, 75, 80.)

On June 18, 2020, Plaintiff filed a motion

requesting expedited discovery. (Motion.) Defendants

filed an ex parte application requesting that the Court

’ Plaintiffs’ ex parte application to shorten the time for the

Motion hearing is DENIED AS MOOT. (See Dkt. No. 89.)

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AHLMAN v. BARNES

immediately dissolve the preliminary injunction on

June 19, 2020. (Application.)

II. DISCUSSION

After finding that Defendants’ response to the

COVID-19 outbreak in Orange County Jail was

inadequate, the Court ordered Defendants to

implement several remedial measures aimed at

stopping the spread of the disease. (See PI Order.)

Now, Defendants seek to dissolve that injunction,

arguing that it is no longer necessary. The request is

premature.

Dissolution of a preliminary injunction is only

proper only if there has been a significant change that

renders the original preliminary injunction

inequitable. Alto v. Black, 738 F8d 1111, 1120 (9th

Cir. 2013). Defendants insist that the rate of infection

is now zero. (Application at 5.) However, they support

this assertion with their own evidence and testimony

from County employees. Certainly, the County

employees are incentivized to submit evidence that

will support the County’s position.

Before the Court can conclude that the

circumstances have truly changed in such a way to

warrant dissolution of the injunction, Plaintiffs must

have the opportunity to evaluate Defendants’

evidence and determine whether other evidence

contradicts it. Because it would serve both parties’

interests to quickly determine the actual state of the

outbreak, there 1s good cause for ordering expedited

discovery. See Fed. R. Civ. Pro. 26(d)(1); Semitool, Inc.

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AHLMAN v. BARNES

v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D.

Cal. 2002) (“Good cause may be found where the need

for expedited discovery, in consideration of the

administration of justice, outweighs the prejudice to

the responding party.”)

Moreover, even though Defendants now insist that

there is zero transmission within the Jail, they

acknowledge that there are still six active cases.

(Application at 5.) As Defendants have previously

demonstrated, six cases can rapidly become three

hundred in the absence of sufficient mitigating

measures. The country remains deep in the throes of

the outbreak—tens of thousands of new cases are still

being reported every day.” Even if Defendants have

dropped the transmission rate to zero, it is certainly

not time yet to draw down preventative measures—

unless Defendants consistently implement those steps

outlined in the injunctive order, a second spike is

likely occur.

Defendants have repeatedly insisted that they are

going above and beyond what is necessary to stop the

spread of infection—including implementing all the

measures that the court ordered with the injunction.

(See, e.g., Dkt. No. 44-10 4 2 “OCSD has, at a minimum already implemented all of the mitigation efforts

outlined in plaintiffs’ request for relief.”).) Yet they

have filed four separate requests asking to be relieved

of the obligation to do what they have long claimed to

be doing. And they refuse to provide Plaintiffs with

* https://www.cde. gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html

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AHLMAN v. BARNES

any information regarding their compliance with the

Court’s order. (Application, Exhibit A.)

III. CONCLUSION

For the reasons above, the Court:

1.

2.

3.

DENIES Defendants’ Application;

GRANTS Plaintiffs’ Motion;

ORDERS that by July 8, 2020,

(1) Defendants will serve responses to all

outstanding written discovery,

(2) the parties will agree on a date for

inspection of the Jail to be no later than

July 15, 2020, and

(3) the parties will agree on a time and date

for the video depositions of Erin Winger,

Dr. C. Hsien Chiang, and Commander

Joseph Balicki to be no later than July

15, 2020;

ORDERS the parties to meet and confer

regarding additional discovery;

ORDERS Defendants to submit weekly

updates to Plaintiffs regarding compliance

with the injunction so long as the

injunction remains in effect;

ADMONISHES both parties to fully comply

with the entirety of this Order and all other

orders applicable to this case—failure to do

so will result in sanctions;

VACATES the hearing set for July 20, 2020

on the Motion.

DENIES as moot Plaintiffs’ ex parte

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