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Cano v. Taylor

United States Court of Appeals, Ninth Circuit

January 14, 2014

Erineo CANO, aka Eddie Cano, Plaintiff-Appellant,
Nicole TAYLOR, Psychologist; Susan Kaz, Psychologist; Meredith Mitsifer, Psychologist; Ralph Mertens, Psychologist; Dora B. Schriro, Warden, Defendants-Appellees.

Argued and Submitted Dec. 3, 2013.

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Kelly A. Kszywienski (argued) and Andrew M. Jacobs, Snell & Wilmer L.L.P., Phoenix, AZ, for Plaintiff-Appellant.

Claudia Acosta Collings (argued), Assistant Attorney General, Tucson, AZ, for Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, Senior District Judge, Presiding. D.C. No. 2:07-cv-02456-ROS.



CALLAHAN, Circuit Judge:

Erineo Cano, a former prison inmate, appeals from the district court's judgment in his 42 U.S.C. § 1983 action alleging

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deliberate indifference to his mental health needs in violation of the Eighth Amendment (count I), and violations of his right to freely exercise his religious beliefs and to have access to the courts, in violation of the First and Fourteenth Amendments (counts II and III). The district court granted summary judgment on count I, and dismissed counts II and III for failure to exhaust administrative remedies, pursuant to the Prison Litigation Reform Act (" PLRA" ), 42 U.S.C. § 1997e(a). On appeal, Cano challenges both decisions, as well as the district court's rulings denying him appointment of counsel and in forma pauperis (" IFP" ) status.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.


Cano filed his original district court complaint on December 4, 2007. Cano alleged that while an inmate in a facility run by the Arizona Department of Corrections (" AZ DOC" ), he did not receive proper medical care for his mental illness, with the result that he became suicidal. Although he was seen regularly by mental health care professionals at the prison where he was housed, he was unhappy with the quality of care he was offered, and disagreed with the types of medications he was prescribed. The record also indicates a diagnosis of malingering and violence, the latter of which (along with non-compliance and his own personal requests) prohibited him from actively participating in the mental health program.

On May 29, 2008, Cano filed a " Motion for Leave to Add Claims" and a First Amended Complaint (" FAC" ). The FAC added counts II and III for alleged violations of Cano's First and Fourteenth Amendment rights. Count II claimed that Cano's freedom of religion was violated because kosher food was not made available to him.[1] Count III argued that he was denied meaningful access to the courts because a self-help litigation manual he had previously utilized had been removed from the prison library, and " no other self-help litigation manual ha[d] been substituted."

On September 18, 2009, defendant Schriro, Director of the AZ DOC, filed a 12(b) motion to dismiss counts II and III as barred by 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. Cano argued that he had exhausted administrative remedies.

The district court, however, dismissed counts II and III without prejudice on the grounds that the administrative appeals submitted by Cano as to those counts were dated after the filing date of the initial complaint. Thus, although the FAC was filed after the administrative appeals for counts II and III were allegedly exhausted, the court, using the date of the original complaint, found that counts II and III were not administratively exhausted as required under the PLRA. Because it found the date of the original complaint to be dispositive of the exhaustion issue, the district court did not reach the question of whether Cano, in fact, had followed proper prison procedures in pursuing administrative remedies as to counts II and III.

Cano filed a timely notice of appeal, and the Appellate Commissioner appointed counsel for purposes of this appeal only. During the pendency of this appeal, Cano was released from prison.

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Appellees argue that Cano's release from prison renders his claims for injunctive and declaratory relief moot.

We have held that a prisoner's claims for punitive and compensatory relief may remain viable after his release. McQuillion v. Schwarzenegger,369 F.3d 1091, 1095-1096 (9th Cir.2004) (" If [the plaintiff] is entitled to collect damages in the event that it succeeds on the merits, the case does not become moot even though declaratory and injunctive relief are no longer of any use." ) (quoting Z Channel Ltd. P'ship v. Home Box Office, Inc., 931 F.2d 1338, 1341 (9th Cir.1991)); see also Rhodes v. Robinson, 408 F.3d 559, 566 n. 8 (9th ...

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