FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELISSA AHLMAN; DANIEL KAUWE; Nos. 20-55568
MICHAEL SEIF; JAVIER ESPARZA; 20-55668
PEDRO BONILLA; CYNTHIA
CAMPBELL; MONIQUE CASTILLO; D.C. No.
MARK TRACE; CECIBEL CARIDAD 8:20-cv-00835-
ORTIZ; DON WAGNER, on behalf of JGB-SHK
themselves and all others similarly
situated,
Plaintiffs-Appellees, OPINION
v.
DON BARNES, in his official capacity
as Sheriff of Orange County,
California; COUNTY OF ORANGE,
Defendants-Appellants.
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
2 AHLMAN V. 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 Ahlman 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 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
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
AHLMAN V. BARNES 3
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-of-repetition test, a reasonable
likelihood that the same party will be subject to the action
again. The panel 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
4 AHLMAN V. BARNES
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 23, 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.
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
AHLMAN V. BARNES 5
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 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,
6 AHLMAN V. BARNES
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 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 v. 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. Id.
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
AHLMAN V. BARNES 7
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.” Id. at *5 (R. Nelson, J., concurring in part
and dissenting in part) (emphasis in original). Thus, the
County was “likely to succeed on the merits” of the
constitutional challenges. Id. 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. Ahlman, 140 S. Ct. 2620, 2620 (2020). 1
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.
1
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 (3) a likelihood that irreparable
harm will result from the denial of a stay.” Barnes, 140 S. Ct. at 2622
(Sotomayor, J., dissenting) (cleaned up).
8 AHLMAN V. BARNES
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. Id. § 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).
“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
AHLMAN V. BARNES 9
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
§ 3626(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 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. Id. 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
10 AHLMAN V. BARNES
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 337–38. 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,
§ 3626(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 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
§ 3626(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
AHLMAN V. BARNES 11
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 v. 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; Ahlman, 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
12 AHLMAN V. BARNES
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.
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 Enf’t, 16 F.4th 613, 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.