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Armando Vincent Munoz v. James Tilton


May 15, 2013


The opinion of the court was delivered by: Edward J. Davila United States District Judge

For the Northern District of California


United States District Court

Plaintiff Armando Vincent Munoz ("Plaintiff" or "Munoz"), a prisoner in the custody of the California Department of Corrections and Rehabilitation, has brought this civil action pursuant to 19 42 U.S.C. § 1983. Presently before the Court are Defendants' Motion to Dismiss the Amended 20 Complaint and cross-motions for summary judgment filed by both parties. For the reasons 21 explained herein, the Court GRANTS Defendants' Motion to Dismiss. 22 23

I. Background

A. Plaintiff Munoz's Incarceration

Plaintiff Munoz has been incarcerated since May 18, 1996, and became an inmate in the

California Department of Corrections and Rehabilitation ("CDCR") on November 22, 1996. Am. 27 28

Compl., Dkt. No. 25, ¶¶ 13, 15. At the time of the incident underlying this lawsuit, Munoz was 2 housed at Correctional Training Facility ("CTF"), but he was subsequently transferred and is 3 currently housed at California State Prison, Solano. Declaration of I. Palmer ISO Def.'s MSJ 4

Munoz asserts that, at the time of his incarceration, he began living as a Christian and has

6 received Christian materials from various sources, including Christian ministries. Am. Compl. 7

B at 19:16-18, 20:9-19. Munoz avers that as part of his religious beliefs he "must hear messages 9 from a variety of ministers to have the Word of God confirmed in his heart." Am. Compl. ¶ 19; see 10 also Snider Decl. Ex. B at 37:2-38:5. As a result, Munoz received cassette tapes and compact discs

Abundant Life Foursquare Church ("Abundant Life"). Am. Compl. ¶ 16. 13 14

16 allowable inmate property and enumerates in great detail the types and quantities of property an 17 inmate is allowed to possess based on the inmate's classification." Id. ¶ 20. The policy limits the 18 sources from which personal property can be obtained to "approved vendors" only. Id. Article 43 19 also "provides that inmates may acquire personal property using funds in their inmate trust account 20 only from departmentally approved vendors." Declaration of B. Hedrick ISO Def.'s MSJ 21

On March 7, 2005, Defendant Suzan Hubbard, the Deputy Director of Adult Institutions,

23 issued a memorandum requiring all CDCR institutions to implement Article 43. Am. Compl. ¶ 21. 24

7, 2006, "issued a memorandum to the inmate population at CTF indicating that Article 43 would 26 be fully implemented . . . [and] would be effective on Jan 1, 2006." Id. at ¶¶ 8, 22. On May 11, 27 28

("Palmer Decl."), Dkt. No. 45, ¶ 3. 5

¶¶ 14, 16; see also Declaration of Kevin T. Snider ISO Pl.'s MSJ ("Snider Decl."), Dkt. No. 42, Ex. 8

United States District Court For the Northern District of California

("CDs") containing sermons and worship music from a variety of Christian ministries, including 12

B. Article 43 and Operations Procedure 26

Article 43 of Chapter 5 of the CDCR Departmental Operations Manual "standardizes

("Hedrick Decl."), Dkt. No. 46, ¶ 3. 22

Subsequently, on December 12, 2005, Defendant Anthony P. Kane, the Warden at CTF until June 25 2006, a list of the approved vendors from which inmates could receive or purchase personal 2 property was issued. Id. at ¶ 23. CTF then implemented Operational Procedure 26 on June 7, 3 2006, "to bring CTF into compliance with Article 43." Id. at ¶ 24. Operations Procedure 26 4 implemented the policies and procedures of Article 43, governing inmate property receipt and 5 possession at CTF. Hedrick Decl. ¶ 4; see also Snider Decl. Ex. H. 6 7 process inmates' property purchases in manners designed to ensure that inmates do not receive 8 contraband material from outside sources." Hedrick Decl. ¶ 4; see Snider Decl. Ex. H. The 9 requirements are enforced to "enhance CTF's security environment for staff and inmates by 10 limiting the opportunities for weapons, drugs, communications, and other illicit materials from Pursuant to Operations Procedure 26, "approved vendors must assemble, sort, package, and entering the institution. The approved-vendor policy also promotes efficient operations because it 12 reduces the amount of staff time that is needed to sort, review, and screen materials being delivered 13 to inmates at the institution." Hedrick Decl. ¶ 4. Inmates in "appropriate privilege group[s] may 14 possess compact discs containing audio recordings" if they are commercially manufactured. 15

Hedrick Decl. ¶ 5; see Snider Decl. Ex. H. 16 17

Ex. B at 18:19-19:1, 50:14-18. However, the Property Room attendant "informed Munoz that he 21 could not receive religious materials from any Christian ministries because no Christian ministries 22 were on the approved-vendor list." Am. Compl. ¶ 25; see also Snider Decl. Ex. B at 18:19-19:1. 23

Am. Compl. ¶¶ 26-27; Snider Decl. Ex. B at 52:13-16. The Property Room attendant agreed to 25 hold the CDs pending Munoz's administrative appeal. Am. Compl. ¶ 26; see also Snider Decl. Ex. 26

B at 52:1-3, 13-16. 27 28

C. Alleged Enforcement of the Policy Against Munoz

On Sept 25, 2006, Munoz attempted to retrieve Christian CDs mailed to him from

Abundant Life at CTF's North Facility Property Room. Am. Compl. ¶ 25; see also Snider Decl. 20

After Munoz's CDs were withheld, he filed an administrative grievance seeking their release. See 24

Defendant Hedrick was a Correctional Business Manager II at CTF in 2006. Decl. Hedrick

¶ 2. In November 2006, Hedrick interviewed Munoz concerning his grievance. Id. at ¶ 6. Hedrick 3 informed Munoz that the materials could not be received pursuant to CTF's policies because they 4 did not come from an approved vendor. Id. Hedrick asserts that the CDs were not denied because 5 of their religious content, but rather "because they were not commercially manufactured compact 6 discs from an approved vendor, and thus posed potential security concerns." Id. at ¶ 8. 7

8 versions of the CDs if the ministry that sent the discs was willing to transcribe the content into 9 written format. Hedrick Decl. ¶ 7; see also Am. Compl. ¶ 29. Additionally, Hedrick informed 10

On or about November 2, 2006, Hedrick advised Munoz that he could receive transcribed

Munoz that CTF's Protestant Chaplain, Judge Lindsey, could possibly receive a donation of the CDs to the chapel, where Munoz could subsequently check the CDs out from the chapel library to 12 listen to them. Hedrick Decl. ¶ 7; see also Am. Compl. ¶ 29; Snider Decl. Ex. B at 55:12-15. On 13

Lindsey refused to receive the CDs because he was unable to receive materials for individual 15 inmates and accommodate all requests due to limited space and resources. Hedrick Decl. ¶ 7; see 16 also Am. Compl. ¶ 30; Snider Decl. Ex. B at 57:15-19. As a result, Munoz could not possess the 17 private, non-commercial CDs and Chaplain Lindsey was unable to accept them, so the CTF 18

Munoz subsequently resubmitted his administrative appeal for Second Level Review on

November 20, 2006. Am. Compl. ¶ 31. The Second Level Review denied Munoz's appeal, stating 21 that all tapes and CDs must be purchased through approved vendors as articulated in Operations 22

Procedure 26. Id. Munoz then resubmitted the appeal to the Director's Level of Review, which 23 denied the appeal on March 22, 2007. Id. at ¶ 32. 24 25 26 27 28

November 20, 2006, Munoz spoke with Chaplain Lindsey about this possibility, but Chaplain 14

Property Room did not release the Abundant Life CDs to Munoz. Hedrick Decl. ¶ 7. 19

Woodford, Director of the California Department of Corrections in the CDCR; Suzan Hubbard, 5

Warden of CTF; W.J. Hill, Associate Warden at CTF; B. Hedrick, Business Manager II, Contract 7

Compl., Dkt. No. 1. In the Complaint, Munoz asserted that the implementation of Article 43 and 9 denial of the Abundant Life CDs violated his right to free exercise of religion under the First 10

D. The Lawsuit

On July 26, 2007, Munoz filed a Complaint naming the following as Defendants: James

Tilton, Secretary of the California Department of Corrections and Rehabilitation; Jeanne 4

Deputy Director of Adult Corrections in the CDCR; Anthony P. Kane, Warden of CTF; Ben Curry, 6

Management Branch II at CTF; and N. Grannis, Chief of Inmate Appeals for the CDCR. See 8

Amendment to the United States Constitution and the Religious Land Use and Institutionalized

United States District Court

For the Northern District of California

Persons Act ("RLUIPA") (42 U.S.C. § 2000cc), freedom of speech under the First Amendment, 12 and equal protection of the laws as guaranteed by the Fourteenth Amendment. Id. 13

Am. Compl., Dkt. No. 25. 16 17

After the Complaint was dismissed in an Order by Judge Jeremy Fogel on March 26, 2009,

Munoz filed an Amended Complaint asserting the same causes of action on May 29, 2009. See 15

E. Plaintiff Munoz's Transfer

After filing the Amended Complaint, Munoz was transferred from CTF to California State

Prison, Solano ("Solano") in September 2009. Palmer Decl. ¶ 3. Solano houses Level II and III 20 inmates. Id. Munoz is classified for Level III housing according to his most recent Unit 21

CDCR Level III inmates. Id. 23

Despite the fact that Article 43 is still in place, Munoz has been receiving religious preaching CDs 26 while incarcerated at Solano and currently has approximately forty CDs. Id. at 75:18-23, 73:18-23. 27 28

Classification Committee hearing held on February 15, 2012, and is granted all privileges afforded 22

Since transferring to Solano, Munoz has received multiple religious preaching CDs.

Declaration of Kyle A. Lewis ISO Def.'s MSJ ("Lewis Decl."), Dkt. No. 47, Ex. A at 72: 22-24. 25

Munoz asserted during his deposition that all of his religious needs are being met. Id. at 76:5-7. 2

When asked whether all Munoz's "religious needs for hearing the word of God [are] being met 3 right now," Munoz responded, "Yes." Id. 4 5

F. The Present Motions

Defendants now move to dismiss Munoz's claims pursuant to Federal Rule of Civil

Procedure 12(b)(1) on grounds that the case is moot due to the fact that Munoz is no longer being 8 housed at CTF. Def.'s MSJ, Dkt. No. 44, 1:6-8, 8:17-19. The parties have also cross-moved for 9 summary judgment on the grounds that, in light of the lack of disputed issues of material fact, each 10 is entitled to judgment as a matter of law on the substantive issues of Plaintiff Munoz's claims. Id.

United States District Court For the Northern District of California

at 1:9-14, 8:23-26. On March 22, 2013, the Court heard oral arguments of counsel on these 12 motions. See Dkt. No. 57. 13 14

Fed. R. Civ. P. 12(b)(1). "Mootness . . . pertain[s] to a federal court's subject-matter jurisdiction 17 under Article III, [so it is] properly raised in a motion to dismiss under Federal Rule of Civil 18

Procedure 12(b)(1)." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "[W]hen considering a 19 motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the 20 pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual 21 disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 22

Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 24

25 complaint. Id. When a defendant makes a facial challenge, all material allegations in the 26 complaint are assumed true, and the court must determine whether lack of federal jurisdiction 27 28

II. Legal Standard

A party can file a motion to dismiss with the Court for lack of subject matter jurisdiction.

(9th Cir. 1988). Therefore, a Rule 12(b)(1) motion may be either a facial or factual challenge. 23

A facial 12(b)(1) motion to dismiss involves an inquiry confined to the allegations in the

appears from the face of the complaint itself. Thornhill Publ'g Co. v. General Tel. Elec., 594 F.2d 2 730, 733 (9th Cir. 1979). 3

4 must produce affidavits or other evidence necessary to satisfy its burden of establishing subject 5 matter jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Under 6 a factual attack, the court need not presume the plaintiff's allegations are true. White, 227 F.3d at 7

1242. In the absence of a full-fledged evidentiary hearing, however, disputed facts pertinent to 8 subject matter jurisdiction are viewed in the light most favorable to the nonmoving party. Dreier v. 9

On a factual challenge, such as the one before this Court, the party opposing the motion

United States, 106 F.3d 844, 847 (9th Cir. 1996). Disputed facts related to subject matter should be 10 treated as they would in a motion for summary judgment. Id.

III. Discussion

A. Mootness

Plaintiff Munoz's transfer from CTF to Solano calls into question the issue of mootness.

"An inmate's release from prison while his claims are pending generally will moot any claims for 16 injunctive relief relating to the prison's policies unless the suit has been certified as a class action." 17 03 (1975), and Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991)). "As a general rule . . . 19 voluntary cessation of allegedly illegal conduct does not make a case moot. But a case may 20 become moot if (1) it can be said with assurance that there is no reasonable expectation . . . that the 21 alleged violation will recur, and (2) interim relief or events have completely and irrevocably 22 eradicated the effects of the alleged violation." Lindquist v. Idaho State Bd. of Corrections, 776 23

F.2d 851, 854 (9th Cir. 1985) (internal quotations omitted). 24 25 26 27 28

Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (citing Preiser v. Newkirk, 422 U.S. 395, 402-18

3 claims for injunctive relief to the prison's policy. See Dilley, 64 F.3d at 1368. Defendants argue 4 that Munoz has not demonstrated a reasonable expectation that he will be transferred back to CTF 5 where the injury would recur. Def.'s MSJ, Dkt. No. 44, 11:17-18. Moreover, since Munoz's 6 transfer, he has "received numerous religious preaching compact discs at Solano [and] his religious 7 needs to hear the word of God are currently being met." Def.'s MSJ, Dkt. No. 44, at 9:21-24, 8

Plaintiff Munoz argues the case should not be dismissed as moot because "Defendants'

10 voluntary cessation of the unlawful conduct cannot, in and of itself, moot the case as a matter of

283 (1982). Munoz argues that Defendants have not met their burden to show that the restrictions 13 on religious materials will not recur because Article 43 is still in place as a statewide policy, and 14

"Solano staff can, of their own volition, or compelled by superiors against their better judgment, 15 enforce Article 43." Pl.'s Opp., Dkt. No. 51, at 6:21-22, 8:9-15. Finally, Munoz argues that the 16 parties can only speculate as to Munoz's housing, so transfer from Solano still looms. Id. at 9:14-1722. 18 19

21 for two main reasons which will be explicated below: (1) Munoz's transfer and subsequent receipt 22 of religious materials at Solano have eradicated the effects of the alleged violation at CTF; and (2) 23

CTF, where the incident occurred and could recur. As such, Defendants' motion to dismiss 25 pursuant to Federal Rule of Civil Procedure 12(b)(1) is granted without leave to amend. 26 27 28

B. The Parties' Arguments

Defendants argue that Munoz's transfer to another prison has rendered moot his pending

10:15-20; see also Lewis Decl., Dkt. No. 47, Ex. A at 17:2-7, 73:18-23, 76:5-7. 9

United States District Court For the Northern District of California

law." Pl.'s Opp., Dkt. No. 51, at 5:14-16; see City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 12

C. Plaintiff Munoz's Claims Are Moot

The Court finds that Plaintiff Munoz's claims for injunctive and declaratory relief are moot

Munoz has failed to demonstrate a reasonable expectation that he would be transferred back to 24

2 medium security to maximum security prison in New York allegedly due to his involvement with 3 union formation. Id. at 398. "Newkirk and three of the other four prisoners transferred from 4

Wallkill brought suit . . . [requesting] a declaratory judgment that the transfers were in violation of 5 the Constitution and laws of the United States and an injunction ordering their return to Wallkill, 6 expunging all record of their transfer, and prohibiting future transfers without a hearing." Id. 7

In Preiser v. Newkirk,422 U.S. 395 (1975), plaintiff Newkirk was transferred from a

Subsequently, Newkirk was transferred back to Wallkill and "had a memorandum placed in [his] 8 file which explained the nature of the transfer, noted that the transfer was not for disciplinary 9 reasons, and was not to have any bearing on eligibility for parole or the decisions of the time-10 allowance committee." Id. at 399. Newkirk was then transferred to minimum security facility in

New York, making it "clear that correction authorities harbor no animosity toward Newkirk." Id. 12 at 402. 13

14 allegedly illegal conduct,' where we would leave '[t]he defendant . . . free to return to his old 15 ways,'" and there is "no reasonable expectation that the wrong will be repeated." Id. (internal 16 citations omitted). The Court held that the issue did not fall within the mootness exception of 17 capable of repetition, yet evading review, stating "[a]ny subjective fear Newkirk might entertain of 18 being again transferred, under circumstances similar to those alleged in the complaint, or of 19 suffering adverse consequences as a result of the 1972 transfer, is indeed remote and speculative 20 and hardly casts that 'continuing and brooding presence' over him . . . ." Id. at 403-04. 21

In this case, similarly, Munoz's transfer from CTF has eradicated the effects of the alleged

22 violations that occurred there. As noted, in Solano, where he is currently being housed, Munoz has 23 not experienced the conduct he alleges amounts to RLUIPA and constitutional violations. As 24 noted, Munoz has received approximately forty religious preaching CDs and has stated at his 25 deposition that his religious needs are currently being met. SeeLewis Decl., Dkt. No. 47, Ex. A at 26

73:18-23, 75:18-23, 76:5-7. Munoz argues that this situation amounts to a "voluntary cessation of 27 28

United States District Court For the Northern District of California

The Preiser Court stated that the situation was "more than a '[m]ere voluntary cessation of

illegal conduct" to which mootness does not apply because Article 43 is applicable to Solano. 2

However, the undisputed fact remains that Article 43 has not been enforced against him at his 3 current location, and Munoz has received religious CDs. See Lewis Decl. at 75:18-23. In fact, 4

Moreover, Munoz has failed to demonstrate a reasonable expectation of returning to CTF.

In Johnson v. Moore, the Ninth Circuit found that plaintiff Johnson's claims for injunctive relief 7 relating to Clallam Bay Corrections Center ("CBCC") policies were moot because he failed to 8 demonstrate a reasonable expectation of returning to CBCC. 948 F.2d 517, 519-20 (9th Cir. 1991). 9

CBCC, including "injunctive relief from the 'publishers only' rule's application to softcover books

and from the Clallam Bay's smoking policy," due process claims, freedom of religion, and Eighth 12

Amendment claims. Id. at 519. Before the District Court made any decisions in the case, Johnson 13 was transferred to a federal correctional facility in Washington, and prior to his appeal to the Ninth 14

Circuit, Johnson was transferred to a federal prison in Arizona. Id. The court held that Johnson 15 failed to demonstrate a reasonable expectation of transferring back to CBCC, which rendered moot 16 his claim for injunctive relief. Id. at 520. 17

Similarly, there is no indication that Munoz has a reasonable expectation that he will be

18 transferred from Solano back to CTF, even if his scores change so as to qualify him for a transfer. 19

II housing at his yearly review, he could remain at Solano. Id. at ¶¶ 3-4. As such, Munoz's yearly 21 review regarding transfer eligibility also fails to create a reasonable expectation that he will be 22 transferred from Solano back to CTF. Nor are there pending requests to transfer Munoz from 23

Solano to another CDCR institution; in fact, Munoz has stated that "[t]he parties can only engage 24 in conjecture regarding Munoz' future housing assignment," Pl.'s Opp., Dkt. No. 51, at 10:3-4. 25

Therefore, as in Johnson, Munoz's claim for injunctive relief is moot because he failed to 26 demonstrate a reasonable expectation of returning to CTF. 27 28

Solano staff has not enforced the policy since Munoz's incarceration there in 2009. See id. 5

Johnson had made several Constitutional claims based on the conditions of his confinement in 10

United States District Court For the Northern District of California

See Palmer Decl. ¶ 4. Solano houses Level II and III inmates, so if Munoz is reclassified for Level 20

Calipatria to another California state prison." 64 F.3d 1365, 1368 (9th Cir. 1995). Dilley, a former 4 inmate at Calipatria alleged that the defendants had violated his right of access to the courts by 5 failing to provide reasonable access to the prison law library. Dilley, 64 F.3d at 1367. The Ninth 6

Circuit held that "Dilley's claim that he might be transferred back to Calipatria some time in the 7 future is too speculative to prevent mootness." Id. at 1369 (internal quotation marks omitted). 8

The situation presently before the Court is analogous to that of Dilley v. Gunn, in which the

Ninth Circuit held the plaintiff Dilley's claim was moot where "Dilley has been transferred from 3

Similarly, Plaintiff Munoz merely suggests that he might be transferred back to CTF at some point 9 in the future, which, as the Dilley court held, is "too speculative to prevent mootness." See id. 10

State Prison ("KVSP") in Delano, California, where the alleged injury occurred. Rodriguez v. 13

Hubbard, No. 1:10-CV-00858-DLB PC, 2012 WL 4490768 (E.D. Cal. Sept. 28, 2012). Rodriguez 14 alleged that "Defendants refused to enforce state and federal laws which established rights 15 protecting Native American religious practices and sacred religious artifacts . . . ." Id. The district 16 court determined Rodriguez's claim for injunctive relief was moot because "Plaintiff [was] no 17 longer incarcerated at KVSP." Id. The court stated that "[t]ransfer to another prison renders the 18 request for injunctive relief moot absent some evidence of an expectation of being transferred 19 back." Id. (citing Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007)); see also Abel v. 20

"injunctive relief against any of the defendants in this action would not be appropriate [because] 22 the transfer of a prisoner generally moots any claim for injunctive relief unless plaintiff 23 demonstrates a reasonable expectation of return to the prison where the claims arose," and that 24 plaintiff failed to show a reasonable expectation of return); Burton v. Clark, No. 1:09-CV-00061-25

AWI, 2012 WL 3205425 (E.D. Cal. Aug. 3, 2012) (concluding that Plaintiff's RLUIPA claim for 26 27 28

Several cases from the Eastern District of California are analogous to the case before this

United States District Court For the Northern District of California

Court. In Rodriguez v. Hubbard, for example, plaintiff Rodriguez was incarcerated at Kern Valley 12

Martel, No. 2:09-CV-1749 JAM CKD, 2013 WL 552416 (E.D. Cal. Feb. 13, 2013) (declaring that 21

injunctive relief was moot because he was no longer housed at the prison at issue and demonstrated 2 no evidence of being transferred back). 3

Munoz cites Jesus Christ Prison Ministry v. California Dept. of Corrections,*fn1 to support his

4 argument that this case is not moot. In that case, plaintiffs were sent religious materials from Jesus 5

Substance Abuse Treatment Facility ("SATF"). 456 F. Supp. 2d. 1188, 1193 (E.D. Cal. 2006). 7

Christ Prison Ministry ("JCPM") and other ministries while incarcerated at California State 6

However, "pursuant to a new policy . . . prison officials began denying plaintiffs these religious 8 materials because the literature was not sent from an 'approved vendor' and was thus considered 9 contraband." Id. The defendants argued that the case was moot because the policy had changed so 10 that the plaintiffs could once again receive materials from JCPM. Id. at 1194. The defendants

United States District Court For the Northern District of California

asserted that "the issues with respect to these written materials are no longer 'live' and the parties 12 therefore 'lack a legally cognizable interest' in the outcome of this action." Id. at 1196. 13

14 present one is that the plaintiffs in that case were not transferred to a different facility. The Jesus 15

Christ Prison Ministry court observed that the mail policies at SATF changed three times over a 16 two year period, creating a "moving target" and "no concrete assurance that the policies in question 17

[would] not be subject to further modification and change." Id. at1196.Plaintiff Munoz, in 18 contrast, has been removed from CTF (the facility where the alleged violations occurred) and 19 transferred to Solano (the facility where he has stated that his religious needs are being met). 20

2006, and Munoz has not argued that his rights have been violated there. As such, there is no 22

"moving target" that concerned the Jesus Christ Prison Ministry court. 23 24 25

The primary distinguishing factor from the situation in Jesus Christ Prison Ministry and the

Article 43 has not been enforced at Solano since its adoption through Operations Procedure 26 in 21

V. Conclusion and Order 2

For the foregoing reasons, the Court finds that Plaintiff Munoz's claims in the Amended

Complaint are moot. Accordingly, the Court orders the following: Defendants' Motion to Dismiss 4 for lack of subject matter jurisdiction (Docket Item No. 44) is GRANTED WITH PREJUDICE and 5

Plaintiff Munoz's Amended Complaint is DISMISSED WITHOUT LEAVE TO AMEND. Plaintiff 6

Munoz's Motion for Summary Judgment (Docket Item No. 39) is DENIED. 7

Since this Order effectively disposes of the entire case, the Clerk shall close this file upon

8 entry of Judgment. 9 10


United States District Court For the Northern District of California

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