Order Granting Defendant's Motion to Dismiss and Dismissing All Other Pending Motions (Docket nos. 20, 26, 28)

PHYLLIS J. HAMILTON, United States District Judge

INTRODUCTION

Plaintiff, a prisoner of the State of California at San Quentin State Prison (SQSP), filed a pro se civil rights complaint and first amended complaint under 42 U.S.C. § 1983 alleging the violation of his federal constitutional rights. The court ordered the claim for injunctive relief served on Warden Woodford. Defendant Woodford has filed a motion to dismiss the action, to which plaintiff has filed an opposition and Woodford a reply. Plaintiff has filed a motion for summary judgment, in response to which Woodford has filed a request for an extension of time to file an opposition.

BACKGROUND

Plaintiff seeks a permanent injunction compelling prison authorities at San Quentin State Prison ("SQSP") to allow prisoners to receive personal property in accord with the October 31, 1997 decision in Walker v. Calderon, C 95-2770 FMS. At issue in Walker were regulations pertaining to the receipt of books and other reading materials by prisoners. Before 1994, San Quentin inmates could order themselves, or have outside parties send or order for them, books and periodicals from a range of vendors. In May, 1994, the Special Purchase Order ("SPO") program was instituted, requiring that all books received by inmates be pre-approved by prison staff. The program provided that inmates could order books only from a list of approved vendors or, in the event that a book is only available elsewhere, from a vendor whose authenticity can be verified by prison staff. The SPO program prohibited the receipt of books ordered by third-parties from vendors or publishers, even if the vendors or publishers were on the approved prison list. As a result of the third-party ban, the district court found in Walker that would-be book givers were forced to deposit money for books in inmate trust accounts rather than pay for books directly. This money was then subject to deductions to pay restitution fines. The court found this to be an invalid aspect of the SPO program and granted the prisoner's motion for summary judgment as to the rule against third-party book purchases.

Plaintiff alleges that prison authorities have instituted a similar SPO program regarding the receipt of personal property by inmates at SQSP. He alleges that he personally was harmed by the program when he was forced to donate soft-cover books to the prison on August 15 and September 9, 1996, because they were not ordered through the program. He alleges that for the reasons discussed in Walker, prisoners should be allowed to receive approved property ordered and purchased by third-parties from the prison's approved mail order vendors.

DISCUSSION

Defendant moves to dismiss this action on the grounds that the court lacks jurisdiction over the claim because it is moot, and the claim is barred by the applicable statute of limitations.

I Lack of Jurisdiction

A. Standard of Review

Dismissal is appropriate under Rule 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. Fed.R.Civ.P. 12 (b)(1). Subject matter jurisdiction is a threshold issue which goes to the power of the court to hear the case. Therefore, a 12(b)(1) motion must be decided before other motions, as they will become moot if dismissal is granted. 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure: Civil § 1350. Because the court's power to hear the case is at stake, it is not limited to the allegations in the complaint but may also consider extrinsic evidence and, if that evidence is in dispute, it may weigh the evidence in order to satisfy itself that it has jurisdiction over the case. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Although lack of subject matter jurisdiction is an affirmative defense, the burden of proof in a 12(b)(1) motion is on the party asserting jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, although the complaint is to be construed liberally, argumentative inferences favorable to the pleader will not be drawn, and the court will presume a lack of jurisdiction until the pleader proves otherwise. 5A Wright Miller at § 1350; Stock West at 1225.

B. Discussion

Defendant argues that plaintiffs claim for injunctive relief is moot because in a warden's bulletin dated June 1, 2000, Warden Woodford stated that third parties will be allowed "to purchase allowable items from authorized vendors on behalf of mainline, ranch, and condemned inmates." (Dull Decl., Ex. A.) Further, the most recent Institutional Procedure 215, dated October 2001, reflects that inmates are currently allowed to receive non-book property directly ordered and purchased by third parties for delivery to an inmate. (Dull Decl., Ex. B.) In opposition, plaintiff argues that his claim is capable of repetition yet evading review because under the policy certain approved items are not allowed to be purchased by third parties from the approved vendors. In support of his contention, plaintiff attaches an undated copy of a special purchase order made by another inmate with an affixed note stating that tennis shoes are not an authorized property to be purchased in the third-party program.

The jurisdiction of federal courts depends on the existence of a "case or controversy" under Article III of the Constitution. See PUC v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). A claim is considered moot if it has lost its character as a present, live controversy, and if no effective relief can be granted: "Where the question sought to be adjudicated has been mooted by developments subsequent to filing of the complaint, no justiciable controversy is presented." See Flast v. Cohen, 392 U.S. 83, 95 (1968). Where injunctive relief is involved, questions of mootness are determined in light of the present circumstances. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996).

The court agrees with defendant Woodford that the institution's modification of the special purchase order program to allow purchases of personal property by third parties from approved vendors renders moot plaintiffs request for injunctive relief to compel the same result. To the extent plaintiff now complains that the new regulations are not being complied with, that is a separate claim which plaintiff must pursue via the prison's administrative grievance procedure before coming to federal court. See 42 U.S.C. § 1997e. Plaintiffs allegation that another inmate was unable to receive tennis shoes under the program does not create a "reasonable expectation" that the injury plaintiff suffered will recur. Cf. Gluth v. Kangas, 951 F.2d 1504, 1507 (9th Cir. 1991) (voluntary cessation of prison policy does not render claim moot where prison has history of violations, policy is vague, and it cannot be said "with assurance" that there is no "reasonable expectation" that alleged violations will not recur). Plaintiff sought modification of the special purchase order program guidelines. The guidelines have been so modified. Plaintiff has not suffered an alleged violation under the new guidelines, and any allegation of the likelihood of such is purely speculative. Accordingly, plaintiffs request for permanent injunctive relief is moot. As no case or controversy over which this court can assert jurisdiction exists, defendant's motion to dismiss under Rule 12(b)(1) is GRANTED.

II Remaining Motions

Defendant's Rule 12(b)(1) motion having been granted, the motion to dismiss for failure to comply with the applicable statute of limitations, plaintiffs motion for summary judgment, and defendant's request for extension of time to respond are DISMISSED as moot.

CONCLUSION

For the foregoing reasons, the motion to dismiss is GRANTED and all other pending motions are DISMISSED as moot. (Docket nos. 20, 26, 28)

The clerk of court shall enter judgment and close the file.