Amador v. Superintendents of Dep't of Corr. Servs.

08-2079-pr Amador v. Superintendents of Dep’t of Corr. Servs. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: June 15, 2009 Decided: August 19, 2011) 5 Docket No. 08-2079-pr — 6 — 7 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - — 8 — 9 Lucy Amador, Bobbie Kidd, Bette Jean McDonald, Jeanette Perez, 10 Plaintiffs-Counter-Defendants, — 11 — 12 Stacie Calloway, Tonie Coggins, Latasha Dockery, Tanya Jones, 13 Kristina Muehleisen, Laura Pullen, Corilynn Rock, Denise 14 Saffioti, Shenyell Smith, Hope Susoh, Nakia Thompson, 15 Plaintiffs-Counter-Defendants-Appellants, — 16 — 17 Stephanie Dawson, Shantelle Smith, 18 Plaintiffs-Appellants, — 19 — 20 v. — 21 — 22 Anginell Andrews, Superintendent, Roberta Coward, Dennis 23 Crowley, Alexandreena Dixon, Elaine Lord, Superintendent, Ronald 24 Moscicki, Superintendent, Melvin Williams, Superintendent, 25 Donald Wolff, DOCS Deputy Superintendent, Terry Baxter, DOCS 26 Director of Personnel, Richard Roy, DOCS Inspector General, 27 Barbara D. Leone, DOCS Director of the Sex Crimes Unit of the 28 Inspector General’s Office, Peter Brown, DOCS Director of the 29 Bureau of Labor Relations, Glenn S. Goord, DOCS Commissioner, 30 James Stone, Office of Mental Health Commissioner, Michael Evans, 31 DOCS Correction Officer, Michael Galbreath, Sergeant Smith, 32 Mario Pique, Jeffrey Shawver, Robert Smith, Officer Sterling, 33 Delroy Thorpe, Pete Zawislak, Rick Larue, Rico Meyers, 34 Frederick Brenyah, Charles Davis, 35 Defendant-Cross-Defendants-Appellees, — 36 — 37 Clarence Davis, DOCS Correctional Officer, 38 Defendant-Appellee, — 39 — — 40 — 1 John E. Gilbert III, Officer, 2 Defendant-Counter-Claimant-Cross-Defendant-Appellee, — 3 — 4 Chris Sterling, 5 Defendant-Counter-Defendant-Appellee, — 6 — 7 James Hudson, 8 Cross-Claimant, — 9 — 10 Delroy Thorpe, Department of Correctional Services, 11 Cross-Defendant.* — 12 — 13 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 14 B e f o r e: WINTER, CABRANES, and HALL, Circuit Judges. — 15 — 16 Interlocutory appeal from a dismissal of Section 1983 claims 17 by various present or former female inmates of New York state 18 prisons, individually and on behalf of a class, for injunctive 19 and declaratory relief, largely for protective measures against 20 sexual abuse and harassment, and a dismissal of individual claims 21 for damages entered by the United States District Court for the 22 Southern District of New York (Kevin T. Duffy, Judge). We lack 23 jurisdiction over the claims for damages but hold that the class 24 claims for injunctive and declaratory relief are not moot because 25 they fall within the exception for claims capable of repetition, 26 yet evading review. We vacate the judgment of the district court 27 in part and remand for further proceedings. 28 DORI LEWIS (Lisa A. Freeman, on the 29 brief), Prisoners’ Rights Project 30 Legal Aid Society, New York, New * The Clerk of the Court is directed to amend the caption as set forth above. 1 York, and ALISON M. MIKKOR (Maeve 2 O’Connor, John S. Craig, Donna 3 Krouzman, Lauren Sypek on the 4 brief), Debevoise & Plimpton, LLP, 5 New York, New York, for Appellants. — 6 — 7 RICHARD O. JACKSON (Andrew M. 8 Cuomo, Attorney General, Barbara D. 9 Underwood, Solicitor General, 10 Benjamin N. Gutman, Deputy 11 Solicitor General, on the brief), 12 Office of the Attorney General, New 13 York, New York, for Supervisory 14 Appellees. — 15 — 16 JOSEPH M. LATONA, Buffalo, New York 17 for Appellee Charles Davis. — 18 — 19 CHRISTOPHER KENNEDY (David W. 20 Novak, on the brief), Hinman 21 Straub, P.C., Albany, New York, for 22 Appellees Michael Evans and Jeffrey 23 Shawver. — 24 — 25 LINDA M. CRONIN (Rocco G. Avallone, 26 on the brief), Cronin & Byczek LLP, 27 Lake Success, New York, for 28 Appellees Rick Larue and Rico 29 Meyers. — 30 — 31 Hogan Willig and Diane R. Tiveron, 32 of Counsel, Amherst, New York, for 33 Appellee John E. Gilbert III. — 34 — 35 Rachel Meeropol, Center for 36 Constitutional Rights, New York, 37 New York, and Giavanna Shay, 38 Springfield, Massachusetts, for 39 Amici Curiae The National Prison 40 Project of the American Civil 41 Liberties Union Foundation, 42 National Prison Rape Elimination 43 Commissioner, Professor of Law 44 Brenda V. Smith, Stop Prisoner 45 Rape, and Legal Momentum, in 46 support of Appellants. — 3 — — 1 — 2 Joel Landau, James Bogin, Karen 3 Murtagh-Monks, for Amicus Curiae 4 Prisoners’ Legal Services of New 5 York, Albany, New York, in support 6 of Appellants. — 7 — 8 WINTER, Circuit Judge: 9 Thirteen present and former female inmates of various New 10 York state prisons appeal from Judge Duffy’s dismissal of their 11 class action complaint. The complaint, brought under 42 U.S.C. § 12 1983, sought declaratory and injunctive relief compelling the 13 Department of Correctional Services (“DOCS”) to alter its 14 practices and procedures so as to enhance the protection of the 15 class from sexual assault, abuse, and harassment. The complaint 16 also asserted individual claims for damages. The dismissal was 17 based on the grounds that some of the claims of named plaintiffs 18 were moot and that the remaining named plaintiffs had failed to 19 exhaust available remedies as required by the Prison Litigation 20 Reform Act of 1995 (“PLRA”). Appellees are individual line 21 officers (“line officer appellees”), various superintendents and 22 supervisors of certain New York State prisons, and DOCS officials 23 (“supervisory appellees”).1 — 1 — The supervisory appellees include DOCS Superintendents Anginell Andrews, Roberta Coward, Dennis Crowley, Alexandreena Dixon, Elaine Lord, Ronald Moscicki and Melvin Williams; DOCS Deputy Superintendent Donald Wolff; DOCS Director of Personnel Terry Baxter; DOCS Inspector General Richard Roy; DOCS Director of the Sex Crimes Unit of the Inspector General’s Office Barbara D. Leon; DOCS Director of the Bureau of Labor Relations Peter Brown; Office of Mental Health Commissioner James Stone; and DOCS Commissioner Glenn S. — 4 — 1 A prior panel held that we have appellate jurisdiction over 2 the claims for injunctive and declaratory relief pursuant to 28 3 U.S.C. § 1292 (a)(1). Amador v. Superintendents of Dep’t Corr. 4 Servs., No. 08-2079-pr (2d Cir. June 25, 2008). We hold that we 5 lack pendent appellate jurisdiction over the damages claims. We 6 also hold that the claims for injunctive and declaratory relief 7 by appellants who are now free but were in DOCS custody when they 8 brought suit are not moot. Applying a relation-back theory, we 9 hold that appellants’ class claims are capable of repetition, yet 10 evading review. We conclude that three appellants have exhausted 11 applicable internal prison grievance proceedings while the 12 remaining ten have not. We vacate the judgment in part and 13 remand for further proceedings. — 14 — — 15 — Goord. Deputy Superintendent Donald Wolff has been sued only for damages. Several of these individuals may no longer be holding the named positions, but their successors are automatically substituted under Federal Rule of Appellate Procedure 43(c)(2). The line officer appellees include Charles Davis, Michael Evans, John E. Gilbert III, Rick Laru, Rico Meyers, and Jeffrey Shawver. The line officer appellees respond to damages claims by appellants Corilynn Rock, Kristina Muehleisen, Laura Pullen, Nakia Thompson, Tanya Jones, Stacie Calloway, Hope Susoh, Latasha Dockery, and Tonie Coggins. We do not address appellants’ arguments with respect to its claims against the Commissioner of the Office of Mental Health (“OMH”). The supervisory appellees state, without contradiction, that the district court’s decision could not have addressed the appellants’ claims against the OMH as neither their motion to dismiss nor their opposition to appellants’ motion to reconsider purported to address appellants’ claims against the OMH. Accordingly, our disposition of this appeal does not encompass this claim and is rendered without prejudice to either parties’ arguments with respect to that claim on remand. — 5 — 1 BACKGROUND 2 a) The Complaint 3 Appellants’ complaint seeks redress as individuals and as a 4 class for alleged sexual abuse and harassment in violation of 5 rights secured by the First, Fourth, Eighth, and Fourteenth 6 Amendments pursuant to 42 U.S.C. § 1983 . The class is described 7 as “all present and future women prisoners in DOCS custody.” 8 Compl. at 67, Amador v. Superintendents of Dep’t of Corr. Servs., 9 No. 03 Civ. 0650(KTD) (GWG) (S.D.N.Y. Oct. 14, 2003). It alleges 10 that the approximately 3000 women prisoners in DOCS custody are 11 at any time subject to a substantial and unreasonable risk of 12 sexual abuse or harassment as a result of DOCS policies and 13 procedures. These policies and practices, alleged to present 14 common issues of law and fact, include the adequacy of DOCS’: 15 (i) screening, assigning, training, and supervising male staff, 16 and the staff at large, regarding sexual misconduct; (ii) 17 reporting and investigatory mechanisms for sexual misconduct; and 18 (iii) investigating and responding to complaints of sexual 19 misconduct. On behalf of the class, the complaint sought 20 injunctive and declaratory relief from the supervisory appellees, 21 who were alleged to have been aware of the abuse and to have 22 failed to take appropriate preventive measures. Appellants also 23 asserted individual claims for damages with respect to certain — 6 — 1 line officers and one DOCS superintendent for their roles in 2 alleged sexual assault, abuse, and harassment of several 3 appellants while they were in DOCS custody. The conduct alleged 4 ranges from unwelcome touching and invasions of privacy to 5 assault and rape.2 More details of the allegations are provided 6 as relevant infra. 7 b) Procedural History 8 Each of the appellants was in DOCS custody when the 9 complaint was filed on January 28, 2003. A motion for class 10 certification was filed six months later, followed by an amended 11 complaint adding the claims of two new inmates, Stephanie Dawson 12 and Shantelle Smith. Shortly thereafter, appellees filed various 13 motions to dismiss. 14 On September 13, 2005, the district court granted the 15 motions in part, dismissing five plaintiffs’ injunctive claims on 16 the ground that they lacked standing because they had been 17 released from prison before joining the amended complaint. Two 18 of these plaintiffs, Corilynn Rock and Laura Pullen, now appeal. 19 The district court also converted defendants’ motion to dismiss 20 to one for summary judgment on the limited issue of exhaustion 21 and reserved judgment on the motion for class certification. See — 2 — Women entrusted to the custody of DOCS are deemed incapable of consent to sexual advances. See N.Y. Penal Law § 130.05 (3)(e). — 7 — 1 Amador v. Superintendents of Dep’t of Corr. Servs., No. 03 Civ. 2 0650 (KTD)(GWG), 2005 WL 2234050 (S.D.N.Y. Sept. 13, 2005). 3 On December 4, 2007, the district court granted the motion 4 for summary judgment. See Amador v. Superintendents of Dep’t of 5 Corr. Servs., No. 03 Civ. 0650 (KTD)(GWG), 2007 WL 4326747 6 (S.D.N.Y. Dec. 4, 2007). It dismissed as moot the injunctive 7 claims of Stephanie Dawson and Shantelle Smith because they had 8 been released from prison while the motion for class 9 certification was pending. The district court then dismissed for 10 failure to exhaust, the claims of Stacie Calloway, Tonie Coggins, 11 Latasha Dockery, Tanya Jones, Kristina Muhleisen, Denise 12 Saffioti, Hope Susoh, and Nakia Thompson. Finally, the district 13 court dismissed the injunctive claims of Shenyell Smith against 14 the supervisory appellees on the ground that she failed to 15 identify any defendant other than the officer who was alleged to 16 have sexually assaulted her. Having dismissed all the claims 17 against the supervisory appellees for mootness or failure to 18 exhaust, the district court concluded that class certification 19 was not warranted. The district court dismissed all claims for 20 damages save those of Shenyell Smith against Officer Delroy 21 Thorpe. Id. 22 On plaintiffs’ motion for reconsideration, the district 23 court amended its order without explanation, to, among other — 8 — 1 things, reinstate the claims for damages by certain plaintiffs: 2 Lucy Amador against Michael Galbreath and Robert Smith; Bette 3 Jean McDonald against John E. Gilbert III, Mario Pinque and 4 Donald Wolff; Jeanette Perez against Sergeant Smith, Chris 5 Sterling, and Pete Zawislak; Stephanie Dawson against Federick 6 Brenyah; and Shantelle Smith against James Hudson. 7 This appeal followed. 8 DISCUSSION 9 We review a district court’s grant of summary judgment de 10 novo, viewing the facts in the light most favorable to the non11 moving party. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 12 2006). Whether a plaintiff has exhausted administrative remedies 13 under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), is 14 also a question reviewed de novo, see Johnson v. Rowley, 569 F.3d 15 40, 44 (2d Cir. 2009), as are questions of mootness. White River 16 Amusement Pub., Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d 17 Cir. 2007); Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir. 1994). 18 a) Jurisdiction Over The Damages Claims 19 We have appellate jurisdiction over non-final orders of the 20 district courts’ “granting, continuing, modifying, refusing or 21 dissolving injunctions, or refusing to dissolve or modify 22 injunctions.” 28 U.S.C. § 1292 (a)(1). A prior panel concluded 23 that appellate jurisdiction should be exercised over appellants’ — 9 — 1 injunctive claims because the district court’s denial of that 2 relief “might have serious, perhaps irreparable consequence” and 3 “can be effectually challenged only by direct appeal” prior to 4 the entry of final judgment. See Amador, No. 08-2079-pr (2d Cir. 5 June 25, 2008) (quoting Sahu v. Union Carbide Corp., 475 F.3d 6 465, 467 (2d Cir. 2007)). 7 Appellants ask that we exercise pendent jurisdiction to 8 review the interlocutory orders dismissing some of their 9 individual claims for damages. They argue that our review of the 10 district court decision dismissing the injunctive claims entails 11 resolution of the same issue as the dismissed damages claims: 12 whether appellants satisfied the PLRA’s exhaustion requirements. 13 See, e.g., Lamar Adver. of Pa., LLC v. Town of Orchard Park, 356 14 F.3d 365, 371-72 (2d Cir. 2004); Stolt-Nielsen SA v. Celanese AG, — 15 — 430 F.3d 567, 576 (2d Cir. 2005). 16 “[W]here our jurisdiction is properly founded upon the 17 district court’s ruling on a preliminary injunction under 28 18 U.S.C. § 1292 (a)(1), our review extends to all matters 19 inextricably bound up with the preliminary injunction.” Lamar 20 Adver. of Pa., LLC, 356 F.3d at 371 (internal quotations omitted 21 and modifications incorporated). Section 1292(a)(1), however, 22 provides only a “narrowly tailored exception” to the final 23 judgment rule and its “policy against piecemeal appellate — 10 — 1 review.” Cuomo v. Barr, 7 F.3d 17, 19 (2d Cir. 1993). To be 2 “inextricably intertwined” requires, for example, that review of 3 “the otherwise unappealable issue is necessary to ensure 4 meaningful review of the appealable one.” Britt v. Garcia, 457 5 F.3d 264, 273 (2d Cir. 2006) (internal quotation marks omitted). 6 No such necessity exists here. Although prisoners seeking 7 injunctive relief and those seeking damages are each required by 8 the PLRA to exhaust internal grievance procedures, see generally 9 Booth v. Churner, 532 U.S. 731 (2001), the overlap in legal 10 issues is at a very high level of generality. A resolution of 11 the dispute over exhaustion of the damages claims would not 12 necessarily overlap with the resolution concerning exhaustion 13 with regard to injunctive relief. There is, therefore, an 14 insufficient basis for us to justify the application of an 15 exception to an exception, i.e., the exercise of jurisdiction 16 over claims pendent to a claim reviewable only as an exception to 17 the final order rule. Under these circumstances, a measure of 18 self-restraint is desirable, particularly because appellants’ 19 proffered justification for pendent jurisdiction does not 20 distinguish them from most litigants seeking both injunctive 21 relief and damages. — 22 — — 23 — — 11 — 1 b) Exhaustion and the Grievance Procedure 2 The PLRA provides in pertinent part: 3 No action shall be brought with respect to prison 4 conditions under section 1983 of this title, or 5 any other Federal law, by a prisoner confined in 6 any jail, prison, or other correctional facility 7 until such administrative remedies as are 8 available are exhausted. — 9 — 10 42 U.S.C. § 1997e(a). — 11 — 12 The purpose of the PLRA is “to reduce the quantity and 13 improve the quality of prisoner suits . . . [and to afford] 14 corrections officials time and opportunity to address complaints 15 internally before allowing the initiation of a federal case.” 16 Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (quoting 17 Porter v. Nussle, 534 U.S. 516, 524-25 (2002)) (modifications in 18 original). Section 1997e(a) requires “proper exhaustion” -– that 19 is, “using all steps that the agency holds out, and doing so 20 properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo 21 v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis 22 omitted). This entails both “complet[ing] the administrative 23 review process in accordance with the applicable procedural 24 rules,” Woodford, 548 U.S. at 88 , and providing the “level of 25 detail necessary in a grievance to comply with the grievance 26 procedures.” Jones v. Bock, 549 U.S. 199, 218 (2007); see also 27 Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). Exhaustion 28 is mandatory –- unexhausted claims may not be pursued in federal — 12 — 1 court. See Johnson, 569 F.3d at 45 (citing Jones, 549 U.S. at 2 211). 3 We turn now to the various written materials concerning New 4 York’s Inmate Grievance Procedure3 (“IGP”) and to various 5 practices that have developed under it. We discuss the 6 application of the procedure and practices to appellants infra. 7 The IGP defines a grievance as “a complaint about the substance 8 or application of any written or unwritten policy, regulation, 9 procedure or rule of the [DOCS] or any of its program units, or 10 the lack of a policy, regulation, procedure or rule.” N.Y.C.R.R. 11 § 701.2(a) (1994); cf. N.Y.C.R.R. § 701.2(a) (2006) (“[A] 12 complaint, filed with an IGP clerk, about the substance or 13 application of any written or unwritten policy, regulation, 14 procedure or rule . . . or the lack [thereof]”). The pertinent 15 IGP provides a three step process for the handling of such 16 complaints. — 3 — First established in 1976 pursuant to New York Corrections Law § 139, the Inmate Grievance Program (“IGP”) has undergone a series of revisions and modifications. See Espinal v. Goord, 558 F.3d 119, 125 (2d Cir. 2009) (noting minor revisions in 2006); Hemphill v. New York, 380 F.3d 680, 685-86 (2d Cir. 2004) (noting minor revisions in 2004); Patterson v. Smith, 53 N.Y.2d 98 , 10102 (1981). DOCS’ policies and procedures for the IGP are set forth in Part 7 of Title 7 of the New York Compilation of Codes, Rules and Regulations, and are mirrored with minor refinements in DOCS Policy and Procedure Manual Directive Number 4040. See N.Y. Comp. Codes R. & Regs. tit. 7, (“N.Y.C.R.R.”) § 701.1 et seq; New York Department of Correctional Services Directive No. 4040 (1998) (“Directive No. 4040"). The complaint described incidents that occurred between 1999 and 2003. Accordingly, the relevant regulations are those that were in effect before the 2004 and 2006 revisions. See Espinal, 558 F.3d at 125 (noting that the relevant regulations were those in effect when the prisoner filed the grievances at issue). — 13 — 1 To initiate the process, an inmate must file a written 2 complaint with the Inmate Grievance Resolution Committee 3 (“IGRC”), a facility committee composed of inmates and appointed 4 staff members. See N.Y.C.R.R. § 701.4-.5. The complaint must 5 “contain a concise, specific description of the problem and the 6 action requested.” N.Y.C.R.R. § 701.7(a)(1)(i) (1998) (now 7 codified as amended at N.Y.C.R.R. § 701.5(a)(2) (2007)). Second, 8 the inmate can appeal an unfavorable IGRC determination to the 9 superintendent of the facility. See N.Y.C.R.R. § 701.7(b) (1998) 10 (now codified as amended and renumbered at N.Y.C.R.R. § 701.5(c) 11 (2007)). Finally, an inmate can appeal an unfavorable 12 superintendent’s determination to the Central Office Review 13 Committee (“CORC”). See N.Y.C.R.R. § 701.7(c) (1998) (now 14 codified as amended and renumbered at N.Y.C.R.R. § 701.5(d) 15 (2007)); Directive No. 4040. 16 This scheme specifically contemplates challenges to DOCS 17 policies and procedures. For example, when a grievance involves 18 “changes in policy,” the IGRC is required to submit a 19 recommendation to the superintendent, which, if accepted, can be 20 appealed. N.Y.C.R.R. § 701.7(a)(4)(vi) (1998) (now codified as 21 amended and renumbered at N.Y.C.R.R. § 701.5(b)(3)(ii) (2007)). 22 Of particular importance to the proceeding before us is the 23 provision that only those inmates who are affected by a policy or — 14 — 1 procedure, or lack thereof, may bring such a challenge. (“An 2 inmate must be personally affected by the policy or issue he/she 3 is grieving, or must show that he/she will be personally affected 4 by that policy or issue unless some relief is granted or changes 5 made. All grievances must be filed in an individual capacity.”) 6 In addition, grievances alleging employee harassment, that 7 is “employee misconduct meant to annoy, intimidate or harm an 8 inmate,” see N.Y.C.R.R. § 701.11(a) (1994) (now codified and 9 renumbered at N.Y.C.R.R. § 701.2(e) (2006)), can be processed 10 through an expedited procedure created for the review of such 11 grievances. N.Y.C.R.R. § 701.11(b) (1994) (now codified at 12 N.Y.C.R.R. § 701.8(b)-(h) (2006)); Directive No. 4040, VIII. 13 Pursuant to this expedited procedure, an inmate can report an 14 alleged incident of harassment to the employee’s supervisor. 15 Such a report does not, however, “preclude submission of a formal 16 grievance.” N.Y.C.R.R. § 701.11(b)(1) (1994) (now codified as 17 amended and renumbered at N.Y.C.R.R. § 701.8(a) (2006)); 18 Directive No. 4040, VIII(A). Any allegation of employee 19 misconduct or harassment is to be given a grievance number, 20 recorded with all other grievances in the grievance log and 21 forwarded to the superintendent for his consideration. 22 N.Y.C.R.R. § 701.11(b)(2) (1994) (now codified as amended and 23 renumbered at N.Y.C.R.R. § 701.8(b) (2006)); Directive No. 4040, — 15 — 1 VIII(B). If the superintendent (or his or her designee) 2 concludes that the grievance is not a “bona fide case of 3 harassment,” the superintendent returns the grievance to the 4 ordinary procedure. N.Y.C.R.R. § 701.11(b)(3) (1994) (now 5 codified as amended and renumbered at N.Y.C.R.R. § 701.8(c) 6 (2006)); Directive No. 4040, VIII(C). If the grievance presents 7 a “bona fide harassment issue,” the superintendent can elect to: 8 (i) initiate an in-house investigation, (ii) request an 9 investigation by the Inspector General’s Office; or (iii) in the 10 event of criminal activity, request an investigation by the New 11 York State Police. N.Y.C.R.R. § 701.11(b)(4) (now codified as 12 amended and renumbered at N.Y.C.R.R. § 701.8(d) (2006)) Directive 13 No. 4040, VIII(D). An inmate can then appeal the 14 superintendent’s determination to the CORC, provided she does so 15 within four days. See N.Y.C.R.R. § 701.11(b)(6)-(7) (1994) (now 16 codified as amended at N.Y.C.R.R. § 701.8(g)-(h) (2006) (now 17 providing an inmate with seven days to appeal to the CORC)); see 18 also Directive No. 4040, VIII(E)-(G). 19 The class action complaint contains allegations about the 20 actual practices followed under the IGP. Upon arrival at DOCS, 21 it is alleged, female prisoners receive an orientation to DOCS 22 policies and practices. The orientation encourages inmates to 23 lodge sexual misconduct complaints with any official, including — 16 — 1 the Inspector General (“IG”), as well as DOCS supervisory staff 2 and employees, whether orally or in writing. The IG’s Office, 3 and in particular, its Sex Crimes Unit, is alleged by the 4 complaint to be the alternative administrative mechanism DOCS 5 established to handle complaints of staff abuse. The Sex Crimes 6 Unit receives more than 200 complaints of sexual misconduct every 7 year. According to the complaint, it is DOCS’ standard practice 8 to refer such complaints to the IG for investigation, whether 9 initiated by formal grievance or informal complaint. DOCS’ 10 ensuing response is also alleged to be inadequate by failing to 11 initiate an investigation in a timely manner, failing to 12 adequately investigate and credit inmate complaints, failing to 13 maintain confidentiality, and failing to address any 14 substantiated allegations meaningfully. 15 According to appellants, inmates at DOCS facilities are 16 provided with various materials regarding DOCS policies and 17 procedures with respect to sexual abuse complaints.4 For 18 example, at Bedford Hills, the intake facility for all female 19 inmates, see DOCS Directive No. 0046, the Orientation Manual 20 urges female inmates to “report [sexual abuse] . . . to a — 4 — Not all inmate orientation manuals expressly address sexual misconduct; some simply explicate the IGP. See Albion Correctional Facility Orientation Manual 9-10 (2002); Taconic Correctional Facility Inmate Orientation Manual 62-64 (2000). — 17 — 1 supervisor immediately, go to grievance and make a record of the 2 allegation, and write to the Superintendent or any official that 3 you are comfortable approaching. Write to the Inspector General 4 . . . if you feel more comfortable going directly outside the 5 facility.” Bedford Hills Correctional Facility Inmate 6 Orientation Manual 3 (1999); see also Bedford Hills Correctional 7 Facility Inmate Orientation Manual 3 (2000)(same); Bedford Hills 8 Correctional Facility Inmate Orientation Manual 4 (2003) 9 (“[R]eport [sexual misconduct] to any member of [Bedford Hill’s] 10 Executive Team or to Inmate Grievance”). The record demonstrates 11 that the policies conveyed by the inmate orientation manuals to 12 female inmates are reinforced through memoranda and postings at 13 the various prison facilities. Staff consistently testified that 14 it was DOCS policy to allow women with complaints regarding 15 sexual abuse to report such incidents to a variety of DOCS staff 16 and officials. 17 The Bedford Hills Orientation Manual also describes the IGP, 18 explaining that a “grievance is a complaint about the substance 19 or application of any written or unwritten policy, regulation, 20 procedure, or rule of the facility or department, or the lack of 21 a policy or procedure.” Bedford Hills Correctional Facility 22 Inmate Orientation Manual 36 (1999); see also Bedford Hills 23 Correctional Facility Inmate Orientation Manual 41 (2000); — 18 — 1 Bedford Hills Correctional Facility Inmate Orientation Manual 4 2 (2003). 3 On this record, it is clear that, under DOCS policies and 4 procedures, an IG investigation of alleged acts of sexual abuse 5 is an integral part of the internal grievance procedure. The 6 record contains testimony and email correspondence indicating 7 that DOCS instructs its staff not to conduct any investigation 8 into sexual abuse and that the grievance procedure operates only 9 as a pass-through to the Sex Crimes Unit. Indeed, women 10 prisoners who did pursue relief through the IGP were told that 11 their complaints had been forwarded to the IG for investigation 12 and appropriate action. All thirteen appellants had their 13 allegations of sexual misconduct investigated by the IG, no 14 matter how initiated.5 15 It is clear, therefore, that the first step in the grievance 16 procedure for an inmate alleging sexual abuse is an IG 17 investigation, whether or not a request for policy/procedure 18 reform is included. Such allegations, when presented to a — 5 — The district court stated that “[e]ach Plaintiff alleges that she complained to the Inspector General about her sexual abuse.” The court found that Tonie Coggins, Stephanie Dawson, and Kristina Muehleisen complained to the immediate supervisor of the alleged abuser. The court also found that Stephanie Dawson, Tanya Jones, Laura Pullen, Corilynn Rock, Denise Saffioti, and Shenyell Smith all grieved to a DOCS official that “they felt comfortable approaching.” — 19 — 1 superintendent, were routinely referred to the IG. Moreover, an 2 IG determination about abuse of an inmate can be appealed to CORC 3 when the determination is reported to and accepted by the 4 superintendent. 5 The grievance procedures are further complicated when 6 challenges to DOCS policies concerning sexual misconduct are 7 made. As noted, the regulations governing the IGP specifically 8 contemplate its use to pursue challenges to existing policies as 9 well as challenges that a policy should be created where one does 10 not exist. See N.Y.C.R.R. § 701.2(a) (defining grievance as “a 11 complaint about the substance or application of any written or 12 unwritten policy . . . or the lack of a policy”). As noted, 13 appellants’ complaint asserts just such a challenge. 14 However, an inmate may not challenge a policy, or lack 15 thereof, without a showing of concrete injury, N.Y.C.R.R. § 16 701.3(b), in this case an act of sexual abuse. Three appellants 17 filed such grievances and appealed through all levels of the IGP 18 procedure: Shenyell Smith, Stephanie Dawson, and Shantelle 19 Smith. All three had their grievances investigated by the IG. 20 When the allegation of an act of abuse is combined with a claim 21 for reform of policies and the abuse determination is unfavorable 22 to the inmate, both claims can be pursued on appeal from the IG 23 or superintendent to CORC. But, it appears on this record that — 20 — 1 CORC does not entertain the claim for policy change unless the 2 allegation of an act(s) of sexual abuse is upheld. In these 3 three cases, the allegations of acts of sexual abuse were denied. 4 In none of the three cases did any correctional official or 5 tribunal ever mention the grievances’ challenge to policies and 6 procedures. 7 c) Mootness of the Injunctive Claims 8 Of course, a class action cannot be sustained without a 9 named plaintiff who has standing. Kendall v. Emps. Ret. Plan of 10 Avon Prods., 561 F.3d 112, 118 (2d Cir. 2009) (“In a class 11 action, once standing is established for a named plaintiff, 12 standing is established for the entire class.”) The district 13 court held that the claims of those appellants who have been 14 released are moot and that the relation-back doctrine does not 15 preserve those claims for judicial review. Because the claims of 16 all plaintiffs were then dismissed for either mootness or a 17 failure to exhaust, the district court stated “[t]here is no need 18 to grant Plaintiffs’ motion for class certification, which is 19 hereby denied.” Amador, 2007 WL 4326747 at *9. 20 We conclude that the relation-back doctrine applies to the 21 claims of the plaintiffs who have been released and preserves 22 their claims for adjudication for purposes of a class action. — 23 — — 21 — 1 The standing requirement winnows out disputes that would be 2 inappropriate for judicial resolution for lack of three 3 constitutionally required elements: (i) an injury in fact (ii) 4 that is fairly traceable to the defendant and (iii) that is 5 likely to be redressed by a favorable decision. See Lujan v. 6 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); McCormick ex 7 rel. McCormick v. School Dist. of Mamaroneck, 370 F.3d 275 , 284 8 (2d Cir. 2004). Similarly, the mootness doctrine ensures that 9 the occasion for judicial resolution established by standing 10 persists throughout the life of a lawsuit. See Comer, 37 F.3d at 11 798. Consequently, in the usual case, if the basis for the claim 12 has been rectified or if the plaintiff is no longer subject to 13 the challenged conduct, the claim is moot. See Armstrong v. 14 Ward, 529 F.2d 1132, 1135 (2d Cir. 1976). 15 The relation-back doctrine, however, has unique application 16 in the class action context, preserving the claims of some named 17 plaintiffs for class certification purposes that might well be 18 moot if asserted only as individual claims. For example, in 19 Gerstein v. Pugh, a class challenged Florida’s practice of pre20 trial detention without a probable cause hearing. 420 U.S. 103 21 (1975). Although the named class representatives had been 22 convicted after the district court’s certification of the class 23 and before the court was able to pass on the claims, the Court — 22 — 1 held the case was not moot because it fell within “a narrow class 2 of cases in which the termination of a class representative’s 3 claim does not moot the claims of the unnamed members of the 4 class.” 420 U.S. at 110 n.11 (citing Sosna v. Iowa, 419 U.S. 393 5 (1975)). The Court reasoned that the issue was unlikely to be 6 resolved before a plaintiff was convicted or released. Id. An 7 individual could, therefore, suffer repeated deprivations under 8 the challenged practice, and it was certain that a continuing 9 class of similarly situated persons would suffer the 10 constitutional harm alleged. Id. 11 In both Sosna and Gerstein, the mootness of the named 12 representative’s claim arose after certification of a class. 13 Each decision noted that the usual case required a live 14 controversy at the time of the filing of the complaint and the 15 class certification. Sosna, 419 U.S. at 398, 402 ; Gerstein, 420 16 U.S. at 110 n.11. Sosna, however, recognized that in certain 17 cases, the claims of the named plaintiffs might become moot 18 before the district court had ruled on a certification motion: 19 “In such instances, whether the certification can be said to 20 ‘relate back’ to the filing of the complaint may depend upon the 21 circumstances of the particular case and especially the reality 22 of the claim that otherwise the issue would evade review.” 419 23 U.S. at 402 n.11. — 23 — 1 We have applied the relation-back theory to recipients of 2 public assistance alleging that action on their applications for 3 public assistance was unlawfully delayed by the state. See 4 Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993). In that 5 decision, we concluded that because the state would almost always 6 process a delayed application before relief could be obtained 7 through litigation and some of the appellants alleged that they 8 expected to need public assistance in the future, the claims were 9 not mooted by their receipt of benefits after the filing of the 10 complaint. Id. at 938-39 . 11 We have also applied the relation-back doctrine to class 12 claims of racial discrimination and segregation in public housing 13 in New York by low-income minority individuals. Comer, 37 F.3d 14 at 797-801. We held that, because of the particular combination 15 of a highly fluid public housing population, whose claims were 16 “acutely susceptible to mootness,” and a two-year delay before 17 the district court denied class certification, the class 18 certification, which was granted on appeal, related back to the 19 complaint. Id. 20 Whether claims are inherently transitory is an inquiry that 21 must be made with reference to the claims of the class as a whole 22 as opposed to any one individual claim for relief. See U.S. 23 Parole Comm’n v. Geraghty, 445 U.S. 388, 399-400 (1980); — 24 — 1 Gerstein, 420 U.S. at 110 n.11. According to the supervisory 2 appellees, there is nothing inherently transitory about 3 appellants’ claims because inmates serve a range of terms of 4 imprisonment. Thus, they argue, while some inmates may be 5 released before their claims can be adjudicated, others will 6 remain incarcerated long enough for courts to adjudicate their 7 claims. We disagree. 8 We have previously observed that “a significant 9 characteristic” of claims subject to the “capable of repetition, 10 yet evading review” exception is that the mootness resulted from 11 “a factor closely related to the essence of the claim.” Swan v. 12 Stoneman, 635 F.2d 97 , 102 n.6 (2d Cir. 1980). As such, these 13 claims “involve[] issues that [are] likely to evade review, no 14 matter who prosecute[s] them.” Id. Although a close issue, we 15 conclude that this exception applies. 16 This action is brought on behalf of all women inmates in 17 DOCS custody, alleging constitutionally defective policies and 18 procedures in failing to protect female inmates from sexual 19 harassment, abuse, and assault by male staff. While the entire 20 class may be exposed to the risks caused by the constitutionally 21 defective policies and procedures alleged, as noted, the 22 grievance procedure may be triggered only by an inmate who has 23 been a victim of sexual misconduct. Because the number of — 25 — 1 inmates subjected to acts of misconduct can be a small fraction 2 of the total inmates at risk, the odds of an inmate being able to 3 complete the grievance procedure and litigate a class action 4 while still incarcerated are rather small. All thirteen 5 appellants were in DOCS custody when they commenced the action; 6 only four remained incarcerated when the district court rendered 7 its September 13, 2005 decision.6 Four appellants have been 8 released and subsequently reincarcerated during the course of 9 these proceedings,7 and of these, only two, remained in custody 10 following the filing of the notice of appeal.8 11 Accordingly, we conclude that it was error for the district 12 court to dismiss as moot the claims of the individual plaintiffs 13 who had been released from prison after the filing of the amended 14 complaint. See Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir. 15 1987) (“It would seem to us that the principle espoused in 16 Geraghty is applicable whether the particular claim of the 17 proposed class plaintiff is resolved while a class certification 18 motion is pending in the district court (as in the present case) — 6 — 1 Stacie Calloway, Kristina Muehleisen, Nakia Thompson and Shenyell 2 Smith were incarcerated at that time. [A 6952, 6954, 6955, 6956] — 3 — — 7 — The four appellants are Corilynn Rock, Stacie Calloway, Tanya Jones and Denise Saffioti. — 8 — The two appellants are Corilynn Rock and Denise Saffioti. — 26 — 1 or while an appeal from denial of a class certification motion is 2 pending in the court of appeals (as in Geraghty). In neither 3 event is the plaintiff automatically disqualified from being a 4 class representative . . . .”); Wade v. Kirkland, 118 F.3d 667 , 5 670 (9th Cir. 1997) (holding that, in light of the potential for 6 a prisoner’s claim to be “inherently transitory,” the action 7 could qualify for an exception to mootness, and if so found on 8 remand, the district court could validly certify a class, “since 9 the ‘relation back’ doctrine will relate to [plaintiff’s] 10 standing at the outset of the case”). 11 d) Exhaustion by Appellants 12 Having held that the relation-back theory applies, we now 13 address whether any of the individual plaintiffs have properly 14 exhausted internal prison remedies. 15 Of the thirteen appellants, nine made internal complaints, 16 investigated by the IG, that sought redress only for the alleged 17 actions of the particular officer and did not seek a change in 18 policies or procedures.9 These nine have, therefore, not 19 exhausted their internal remedies with regard to the complaint in 20 the present action. 21 Another appellant, Stacie Calloway, complained about a — 9 — The nine individuals are Nakia Thompson, Hope Susoh, Denise Saffioti, Corilynn Rock, Laura Pullen, Kristina Muehleisen, Latasha Dockery, and Tonie Coggins. — 27 — 1 sexual assault. However, her affidavit also states that she 2 informed the IG that sexual abuse was a problem affecting other 3 inmates and that no one kept track of what the officers were 4 doing. We believe that this complaint sufficiently raises 5 systemic issues relating to policies and procedures regarding the 6 prevention of sexual abuse. To be sure, she did not ask for the 7 precise relief sought in this action, but she adequately alerted 8 the authorities as to her claim of systemic issues. However, 9 Calloway did not appeal to CORC, which is the final step in the 10 grievance procedure for raising issues regarding DOCS polices. 11 The issue, then, is whether her failure to exhaust should be 12 excused. 13 In Hemphill v. New York, we established a three-part inquiry 14 to guide the analysis of whether a plaintiff has met the 15 requirements of Section 1997e(a) of the PLRA. 380 F.3d at 686. 16 The first part, which is not an issue here, is a determination 17 that administrative remedies were in fact available to the 18 prisoner. Id. at 686-88. The second part considers whether 19 defendants forfeited the affirmative defense of non-exhaustion by 20 failing to raise or preserve it, or whether defendants’ own 21 actions inhibiting the inmate’s exhaustion of remedies estops one 22 or more of the defendants from raising the exhaustion defense. 23 Id. at 686, 688-89. The third part requires consideration of — 28 — 1 whether, if the requirements of step two were not met, special 2 circumstances excuse the plaintiff’s failure to pursue or exhaust 3 administrative remedies. Id. at 686, 689-91. If any of the 4 three parts is satisfied, the prisoner is deemed to have 5 exhausted internal procedures for purposes of the PLRA. 6 Subsequent decisions have questioned the continued viability 7 of this framework following the Supreme Court’s decision in 8 Woodford v. Ngo, 548 U.S. 81 (2006). In Woodford the Court 9 addressed whether “a prisoner can satisfy the [PLRA’s] exhaustion 10 requirement by filing an untimely or otherwise procedurally 11 defective administrative grievance or appeal.” Id. at 83-84 . 12 The Court resolved the question in the negative, explaining that 13 PLRA requires “proper exhaustion,” that is “using all steps that 14 the agency holds out, and doing so properly (so that the agency 15 addresses the issues on the merits).” Id. at 90 (emphasis 16 omitted). We have questioned whether, in light of Woodford, the 17 doctrines of estoppel and special circumstances survived. See 18 Macias v. Zenk, 495 F.3d 37 , 43 n.1 (2d Cir. 2007) (“[W]e need 19 not decide what effect Woodford has on Hemphill’s holding that 20 where administrative procedures are confusing a reasonable 21 interpretation of prison grievance regulations may justify an 22 inmate’s failure to follow procedural rules to the letter.”) 23 (internal quotations omitted); Ruggiero v. County of Orange, 467 — 29 — 1 F.3d 170, 176 (2d Cir. 2006) (noting that “[w]e need not 2 determine what effect Woodford has on our case law in this area” 3 because the prisoner’s estoppel and special circumstances 4 arguments nonetheless failed). 5 We too decline to reach the issue, concluding that, even 6 under pre-Woodford caselaw, Calloway has failed to establish that 7 defendants are estopped from raising exhaustion as a defense or 8 that special circumstances excuse her failure to exhaust. 9 A prisoner may invoke the doctrine of estoppel when 10 “defendants took affirmative action to prevent him from availing 11 himself of grievance procedures.” Ruggiero, 467 F.3d at 178. 12 Prior cases have held that verbal and physical threats of 13 retaliation, physical assault, denial of grievance forms or 14 writing implements, and transfers constitute such affirmative 15 action. See, e.g., Hemphill, 380 F.3d at 688 ; Ziemba v. Wezner, — 16 — 366 F.3d 161, 162 (2d Cir. 2004). No such conduct prevented 17 Calloway from appealing to CORC. Nor were there special 18 circumstances relieving Calloway of the obligation to exhaust the 19 IGP procedures. It is clear that challenges to DOCS policies or 20 lack thereof, the subject matter of this lawsuit -- where coupled 21 with a claim of sexual abuse -- must be pursued through the CORC 22 level. While this is a somewhat complex scheme, it hardly — 30 — 1 constitutes special circumstances. Calloway’s grievance was thus 2 not exhausted. 3 Two other appellants, whose complaints were dismissed as 4 moot but to which we have applied the relation-back doctrine, 5 Shantelle Smith and Sheynell Smith, alleged both assaults and a 6 failure to protect and completed the grievance procedure. 7 Shenyell Smith wrote a letter addressed “To Whom It May 8 Concern” that was logged as a grievance on January 3, 2002. The 9 letter alleged that she had been harassed for a period of three 10 months, retaliated against, and sexually assaulted by an officer. 11 With respect to the relief sought, she stated, “This officer is 12 still working on this unit and its not right. I feel that [the 13 officer] should seek counseling [and be] removed . . . , fired 14 and any other [precaution] that is there.” The superintendent 15 responded that “[a] significant portion of this complaint has to 16 do with issues turned over to the Inspector General’s Office for 17 investigation in accordance with Departmental procedures. 18 Grievance denied in that no basis was found for your 19 allegations.” She appealed the grievance. On February 20, 2002, 20 CORC denied it, stating, “Upon full hearing of the facts and 21 circumstances in the instant case, the action requested herein is 22 hereby denied. CORC upholds the determination of the 23 Superintendent for the reasons stated.” — 31 — 1 Shantelle Smith filed a grievance with the IGRC on July 10, 2 2003, alleging a sexual assault by an officer. With respect to 3 corrective action, she stated, “I am seeking monetary damages for 4 the reason that the State had a duty to protect me and failed to 5 do so, thus rendering their misactions as a ‘Failure to Protect’, 6 a most serious dereliction of their duty to provide for my care, 7 custody and control.” On July 11, 2003, the superintendent 8 responded, neither granting nor denying the grievance, stating 9 only, “Your grievance has been forwarded to the Inspector 10 General’s office for further investigation.” Shantelle appealed, 11 and on September 10, 2003, CORC denied the grievance, stating, 12 “CORC upholds the determination of the Superintendent for the 13 reasons stated. CORC notes that the grievant’s allegation of 14 sexual misconduct . . . has been forwarded to the appropriate 15 Central Office personnel for investigation. Any action deemed 16 necessary and appropriate will be taken as a result of that 17 investigation.” That disposition states that any final action 18 would be taken by the IG. No favorable action was taken by the 19 IG, and we deem the grievance procedure exhausted.10 20 Each of these inmates completed the IGP procedure. The 21 issue is whether a claim of a failure to protect is sufficient — 10 — CORC’s response to Shenyell Smith’s and Shantelle Smith’s appeals was identical to its response to Stephanie Dawson’s appeal, discussed infra. Appellees agree that Dawson exhausted the grievance procedure. — 32 — 1 exhaustion with regard to litigation seeking systemic relief. 2 The issue, in our view, is whether a reasonable corrections 3 official would recognize a complaint alleging a failure to 4 protect a female inmate from a sexual assault by a male officer 5 as raising issues regarding DOCS policies and procedures. We 6 believe that it would. To be sure, a “grievance may not be so 7 vague as to preclude prison officials from taking appropriate 8 measures to resolve the complaint internally.” Brownell, 446 9 F.3d at 310. However, a failure to protect involves conduct by 10 officials superior to the officer accused of the misconduct and 11 suggests the need for policy and procedural reform. While the 12 complaint asks for a result -- protection -- rather than 13 specifying the means used to reach that result, the need for the 14 result is clearly articulated and the appropriate means are far 15 more within the expertise of DOCS than the individual prisoner. 16 A fourth appellant, Stephanie Dawson, clearly alleged an act 17 of sexual misconduct, clearly sought systemic reform along the 18 lines of the class action complaint, and clearly exhausted the 19 IGP procedure. Her claim was dismissed as moot by the district 20 court but is now revived by application of the relation-back 21 doctrine. 22 Dawson filed her grievance with the IGRC on February 25, 23 2003. She alleged that she was raped by an officer at the prison — 33 — 1 where she was incarcerated. In describing her grievance, she 2 stated, “Taconic didn’t provide protection from Correctional 3 Officer sexual assault on me.” Dawson requested various relief 4 including: (i) “For DOCS to train and assign and supervise staff 5 so that [she would] not again [be] subjected to this kind of 6 abuse”; (ii) “For DOCS to conduct a full and complete 7 investigation”; (iii) “That [the officer] should be disciplined”; 8 and (iv) “That [she] continue to receive mental health 9 counseling.” In response, the superintendent concluded that “an 10 investigation by the DOCS Inspector General’s Office is in 11 progress.” When Dawson sought to appeal, she was advised that an 12 appeal would be “redundant.” Dawson nonetheless pressed her 13 appeal, and CORC upheld the superintendent’s decision. CORC 14 noted that “the complaint has been forwarded to the appropriate 15 Department personnel for investigation. Any action deemed 16 necessary will be taken as a result of the investigation.” 17 The parties agree that Dawson’s grievance was both 18 procedurally and substantively exhausted. Because Dawson’s role 19 as plaintiff is not mooted by her release for reasons stated 20 supra, she is entitled to pursue a role as class representative. 21 Our conclusion that the district court erred when it failed 22 to relate those claims it deemed moot back to the filing of the 23 complaint does not automatically establish that the three — 34 — 1 appellants affected, Stephanie Dawson, Shantelle Smith, and 2 Sheynell Smith, are entitled to litigate the interests of the 3 class they seek to represent. See Sosna, 419 U.S. at 403 (“This 4 conclusion does not automatically establish that appellant is 5 entitled to litigate the interests of the class she seeks to 6 represent, but it does shift the focus of examination from the 7 elements of justiciability to the ability of the named 8 representative to ‘fairly and adequately protect the interests of 9 the class.’” (citing Fed. R. Civ. P. 23(a))). In a separate 10 proceeding, a previous panel of this court denied appellants’ 11 application for leave to appeal the denial of class certification 12 by the district court. Accordingly, the propriety of class 13 certification is not before us. 14 CONCLUSION 15 We dismiss the damages claims for lack of jurisdiction. We 16 vacate the judgment of the district court with respect to the 17 claims designated in this opinion, and remand for further 18 proceedings consistent with the opinion. — 35 —