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Doe v Wooten

Case No. 13-10280 (C.A. 11, Apr. 8, 2014)

The Supreme Court has reminded us:

It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again. Such action on grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it sought.


Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 224, 120 S. Ct. 722, 726 (2000) (per curiam).

The case now before us began in 2007 and is here on its second trip to this Court. By this appeal, John Doe challenges the District Court’s order dismissing as moot his lawsuit alleging that two Federal Bureau of Prisons (BOP) officials violated his rights under the Eighth Amendment. After careful review and with the benefit of oral argument, we conclude that the defendants failed to demonstrate unambiguous termination of the challenged conduct. We therefore reverse the District Court’s order and remand for further proceedings.

I.



Mr. Doe was convicted in the District of Columbia for violations of the D.C. Code and has since been incarcerated in various prisons run by the BOP. His complaint alleges the following facts, which on a motion to dismiss are accepted as true. Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents, 633 F.3d 1297, 1301 n.3 (11th Cir. 2011).

While Mr. Doe was incarcerated at the United States Penitentiary (USP) in Atlanta, a BOP officer coerced him into sexual relations. In 2004, Mr. Doe cooperated with a federal investigation of the officer by wearing a wire and engaging the officer in conversation about their earlier sexual interactions. The officer resigned as a result of the investigation. In return for his role in the investigation, Mr. Doe was promised that he would be kept safe and would be transferred to a lower security prison.
 

 

Judge(s): Beverly Martin
Jurisdiction: U.S. Court of Appeals, Eleventh Circuit
Related Categories: Civil Rights , Constitutional Law
 
Circuit Court Judge(s)
Charlene Honeywell
Beverly Martin
William Pryor

 

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Click the maroon box above for a formatted PDF of the decision.
and questionable transfer decisions, the bop suddenly changed its position days bop failed to use the confidential correspondence channels in addressing this 11 the government has ‘consistently applied’ a new policy or adhered to a new course investigation, mr. doe was promised that he would be kept safe and would be appeal from the united states district court where counsel did not provide any reasoned basis for the voluntary cessation). “as appeal that is part and parcel of its original argument, then we will consider it.” info. sys. & available in the bureau of prisons.” on the record before us, the reasons given by prohibiting his return to a high-security bop facility is moot. which makes all transfer decisions and housing assignments. mr. stover decision was based on “recent[] review” of mr. doe’s status. the record also relying heavily on the principle that a government actor that voluntarily ceases cir. 2004). it is well settled that when a defendant chooses to end a challenged 15 of conduct.” rich, 716 f.3d at 531–32 (quoting nat’l ass’n of bds. of pharmacy, rick stover, 4 for the eleventh circuit violated his rights under the eighth amendment. after careful review and with the 1989) (rejecting mootness argument where no formal policy was adopted and sum, the bop’s record on the placement of mr. doe shows more confusion and termination. see troiano, 382 f.3d at 1283–84. medium-security bop facilities by bop wardens going as far back as 2006. see cooperated with a federal investigation of the officer by wearing a wire and mr. doe’s lawsuit alleged that mr. stover and the then-director of the bop, complaint alleges the following facts, which on a motion to dismiss are accepted as neither is there evidence of any substantial deliberation. the bop does not with the government actor to show “that it is absolutely clear that the allegedly establishes unambiguous termination of the challenged conduct, the controversy john doe, relevant in evaluating whether the defendant’s stopping of the challenged conduct earlier voluntary cessation cases, the bop has not met its initial burden to show “never promised not to resume the prior practice” (internal quotation marks 10 conclude that his request for injunctive relief is not moot. the bop has not met its disputed transfer and then returning him to his original housing placement, as well than a year later, he was again attacked, this time by a fellow inmate who mr. doe precise test of universal application for determining whether a request for showing that it is absolutely clear the allegedly wrongful behavior could not obligation to assure ourselves of the justiciability of a controversy under article iii. see maintain any extended period of good adjustment in the high level facilities punishment by being deliberately indifferent to the protection he required after he high-security facility, usp big sandy in kentucky. at usp big sandy, a little less bop has told us nothing about how mr. doe’s future transfers will or should be overcome the presumption by showing “a substantial likelihood” that he would be believe that the policy will be reinstated if the suit is terminated.” id. 6 granted his grievance. mr. doe’s attorney then contacted rick stover, a senior the legality of the practice. friends of the earth, inc. v. laidlaw envtl. servs. state prison facility, or in a bop witness protection program. transfer” showed a pattern of changed conduct rather than “a mere voluntary martin, circuit judge: moved to a medium-security facility. during these transfers he suffered two more mr. doe will be moved. these statements do not carry the day for the bop, threats of retaliation against him. on one of these transfers, he was sent through assisted the bop in the investigation of its own officer in atlanta.2 case: 13-10280 date filed: 04/08/2014 page: 13 of 17 standard, even for government actors. harrell v. fla. bar, 608 f.3d 1241, 1268 the termination of the offending conduct was unambiguous;” (2) “whether the the district court skipped this crucial first step by failing to require the court. by this appeal, john doe1 even while this suit was pending, mr. doe was transferred to at least four bop’s dscc, and current bop director charles samuels, jr. mr. doe’s remaining claims decision, ‘unambiguously terminated’ the challenged application of rule 4- because it is the bop’s burden to show that mr. doe will not be moved, not mr. affirmed that the violations alleged here are appropriate for injunctive relief, doe, 376 f. app’x case: 13-10280 date filed: 04/08/2014 page: 10 of 17 while mr. doe was incarcerated at the united states penitentiary (usp) in circumstances of a particular case. see md. cas. co. v. pac. coal & oil co., 312 marks omitted). even if we were to credit the bop’s characterization of mr. doe’s arguments, the case now before us began in 2007 and is here on its second trip to this (11th cir. 2010) (reaffirming the principle that the initial “heavy” burden remains the two remaining individual defendants in this case are mr. stover, a senior member of the indeed, this practice continued even after he filed suit. see nat’l ass’n of bds. of case: 13-10280 date filed: 04/08/2014 page: 16 of 17 district court found the controversy was moot because mr. doe failed to against them are in their official capacities only. doe v. wooten, 376 f. app’x 883, 884 (11th reason given for mr. doe’s transfer to state custody was not his safety, but down again. such action on grounds of mootness would be justified our review of the record leads us to conclude that the bop cannot meet this offending transfer, making a notation in his file to counteract the effect of the (11th cir. 2011). [publish] usp coleman read mr. doe’s grievance and learned of his role as an informant at case: 13-10280 date filed: 04/08/2014 page: 3 of 17 when we apply the correct legal standard to the facts of mr. doe’s case, we 8 novo.3 14 terminated that “canceling the august review course did not bar a future course”). about whether his conviction renders him ineligible, regardless of his good conduct 713 f.3d 577, 594 (11th cir. 2013) (internal quotation marks omitted). these future, just as it did in 2007.”). case: 13-10280 date filed: 04/08/2014 page: 15 of 17 127 s. ct. 2738, 2751 (2007); adarand constructors, 528 u.s. at 224, 120 s. ct. at ________________________ further, neither the timing nor the substance of the bop’s decision indicate * absence of some reasonable basis to believe that the policy will be reinstated if the ________________________ director, federal bureau of prisons, ________________________ officer wooten, government to shoulder its initial burden and therefore improperly shifting the appear in troiano, 382 f.3d at 1283–84, this is not the standard we applied in 16 benefiting from it. after briefing, the district court granted the bop’s motion to dismiss, v. sec’y, fla. dep’t of corr., 716 f.3d 525, 531 (11th cir. 2013). this district court. we reject this bop argument because “[w]hen a party presents something on particularly in a case that has been litigated up to this court and back mr. doe then filed this appeal. accord rich, 716 f.3d at 532 (noting florida has housing unit, severely restricted housing where prisoners spend up to 23 ½ hours a cooperation, and resulting threats and retaliation. the usp victorville warden number of unrelated reasons requiring mr. doe’s reassignment—fiscal budgets, case: 13-10280 date filed: 04/08/2014 page: 11 of 17 florida will not simply end the new kosher meal program at some point in the the district court’s order dismissing mr. doe’s claims as moot is reversed is—and always has been—required to justify application of the presumption before before pryor and martin, circuit judges, and honeywell,∗ a “rebuttable presumption,” troiano, 382 f.3d at 1283, or a “lesser burden,” rich 3 1209. 3 only after it has shown unambiguous termination of the complained of activity. confidential grievance about his placement, which explained his situation. but the unambiguous termination of the challenged conduct. we therefore reverse the (“[c]ounsel for defendants were unable to advise that appellant would not be claiming that its voluntary compliance moots a case bears the formidable burden of see, e.g., troiano v. supervisor of elections, 382 f.3d 1276, 1282 (11th atlanta, a bop officer coerced him into sexual relations. in 2004, mr. doe district judge. mr. doe’s record in the bop’s inmate computer system now had a “do not erase” an unambiguous termination. harrell, 608 f.3d at 1266. after years of litigation plaintiff-appellant, learning this about mr. doe, he alleges he was put in a cell with two known sexual burden. mr. doe’s assignment to a state facility is not permanent and is subject to with this legal framework in mind, we now turn to the mootness issue for trial to begin on april 16, 2012. mr. doe sought (1) an injunction preventing and the instructions entered into his file were positive developments that mitigated against mr. doe and had him moved. presented here. the district court, quoting troiano, described the applicable legal standard in applying this presumption, we have held that once a government actor where he often ended up in the special housing unit for his protection because of case: 13-10280 date filed: 04/08/2014 page: 14 of 17 required a trip to the emergency room. after returning from the hospital he was the danger to him, mr. doe argued he was still entitled to injunctive relief to government policy that has been unambiguously terminated will be moot in the practice, this choice does not always deprive a federal court of its power to decide commenced . . . .”). the bop’s affidavit itself indicates that the state transfer in keeping with these supreme court decisions, this court also employs this honorable charlene edwards honeywell, united states district judge for the middle district troiano.”). in his individual and official capacities, 35. for mr. doe, the bop has for years transferred him to objectionable facilities. but mr. doe was not transferred to a lower security prison. he was instead transferred to usp coleman, a high-security facility in florida. mr. doe filed a entry that mr. doe should not be assigned to or transported through usp atlanta. the challenged conduct. mr. doe’s lawsuit is therefore not moot. prevent the bop from returning him to a high-security federal prison absent a suit”). ________________________ expectation of recurrence when the challenged behavior constituted a continuing days before the scheduled trial date, the bop moved to dismiss the case. population. more high-security bop prisons, despite two wardens’ recommendations that he be conduct will recur, this court has considered the following factors: (1) “whether in the united states court of appeals 726. factors are not exhaustive and the analysis may vary depending on the facts and 2 troiano, 382 f.3d at 1283, this court often gives government actors “more leeway 633 f.3d at 1310). the timing and content of the cessation decision are also therefore likely to endure.” harrell, 608 f.3d at 1266–67 (“[i]f a governmental briefly placed in the special housing unit of usp atlanta and then sent to another evidences that the bop was able to make arrangements for mr. doe’s transfer to the bop for mr. doe’s move do not establish that it intended to respond to mr. the bop contends that mr. doe waived several of his appeal arguments challenging the conduct would resume, when instead the correct standard is a “reasonable basis to in his official capacity, steady in its revised . . . course.” harrell, 608 f.3d at 1266. as we have noted, the 1285 (elections supervisor made changes even before lawsuit was filed), with harrell, 608 f.3d at 1267–68 (“[w]e are unable to say that the board, through its no. 13-10280 burden to mr. doe. and in any event, the district court applied the wrong to demonstrate that mr. doe would not be returned to a high-security bop facility as for the substance of the decision, the bop’s documents show that the first sent to the federal transit center in oklahoma city and then back to usp responded that he had all the information he needed and was aware of mr. doe’s declaratory relief has become moot). while at one of these high-security facilities, usp victorville, mr. doe filed 95 s. ct. 2330, 2334–35 (1975) (internal alteration and quotation marks omitted). before mr. doe’s trial was set to begin. this timing suggests a change was made networks corp. v. city of atlanta, 281 f.3d 1220, 1227 n.7 (11th cir. 2002) (internal quotation practice or was otherwise deliberate.” atheists of fla., inc. v. city of lakeland, specific risk. 12 reversed and remanded. case: 13-10280 date filed: 04/08/2014 page: 7 of 17 review every two years. the bop agreement with colorado could change for any of florida, sitting by designation. offenders, who severely beat and assaulted him. mr. doe required hospitalization 9 case: 13-10280 date filed: 04/08/2014 page: 9 of 17 the mere fact that the bop transferred mr. doe to the colorado state pharmacy, 633 f.3d at 1311 (considering the fact that “the board of regents made political will, or mr. doe’s behavior among them. the bop has not identified any standard for evaluating voluntary cessation by a government actor, we conclude atlanta. in atlanta, mr. doe was beaten by a bop officer so badly that he 4 day in their cells and cannot participate in programs available to the general suit is terminated.” id. at 1285 (emphasis added). in other words, the government for the northern district of georgia 7.2(c)(2) to harrell’s slogan, as required to invoke the presumption we identified in as moot his lawsuit alleging that two federal bureau of prisons (bop) officials period of years supports a finding of likely recurrence. see atheists of fla., inc., iii. 1 17 presumption is particularly warranted in cases where the government repealed or the following evaluation about whether there is a reasonable basis the challenged high-security bop facility and placed either in a medium-security bop facility, a mr. doe was then transferred around to several high-security bop locations, i. defendants-appellees. considering all the circumstances of mr. doe’s case and applying the proper transfer of mr. doe to the custody of an unnamed state department of corrections. allegedly wrongful behavior could not reasonably be expected to recur” or that the district court’s order and remand for further proceedings. in his individual capacity). for simplicity, we refer to these two defendants collectively as the and held at usp atlanta until an officer there recognized the danger of retaliation “formidable” or “heavy” burden of establishing “that it is absolutely clear the (11th cir. 2004). we have called this leeway that we extend to government actors as a result of this assault. for his protection, he was then moved to the special evidence in the record that could support a contrary finding, and our own review to a high-security facility. hardwick v. brinson, 523 f.2d 798, 800 (5th cir. 1975) in bonner v. city of prichard, 661 f.2d 1206 (11th cir. 1981) (en banc), we adopted as binding preiser v. newkirk, where “[a]ll of the developments since the original challenged makes indirect statements about how the record does not show any evidence that by saying “an assertion of mootness involving government actors will only be transferred to a lower security prison. 5 security bop facility in alabama for several months. however, he was then is sufficiently unambiguous. id. we are also “more likely to find a reasonable we would still reach the mootness issues presented here, because we have an independent complains of may recur.”);4 only if it were absolutely clear that the litigant no longer had any need terminated its pattern of transferring mr. doe to one high-security prison after grievance, and sent its response through standard prison mail. as a result, staff at positions at the bop to implement the injunctive relief mr. doe seeks. this court has already the affidavit also averred that the bop had gotten an agreement to allow the than private parties in the presumption that they are unlikely to resume illegal the bop from placing him in or transporting him through the bop facility in at 884, and on remand the district court found the bop is capable of providing mr. doe with the objectionable behavior enjoys a rebuttable presumption that it will not recur. the finding that infringing activities by professor had not been unambiguously that the bop failed to carry its burden to demonstrate unambiguous termination of case: 13-10280 date filed: 04/08/2014 page: 1 of 17 it is no small matter to deprive a litigant of the rewards of its efforts, challenges the district court’s order dismissing reasonably be expected to recur.” id. at 190, 120 s. ct. at 709. the supreme versus attack, mr. doe tried to take his own life. case: 13-10280 date filed: 04/08/2014 page: 5 of 17 adarand constructors, inc. v. slater, 528 u.s. 216, 224, 120 s. ct. 722, 726 2 harrell, 608 f.3d at 1267 (“[t]he board took up the matter of harrell’s entity decides in a clandestine or irregular manner to cease a challenged behavior, called upon mr. doe to show a “substantial likelihood” that the government harley lappin, violated his eighth amendment rights against cruel and unusual earlier. we are mindful that mr. doe had been recommended for transfer to case: 13-10280 date filed: 04/08/2014 page: 4 of 17 to the contrary, the fact that mr. doe has been transferred repeatedly over a omitted)); jager v. douglas cnty. sch. dist., 862 f.2d 824, 833–34 (11th cir. change in government policy or conduct appears to be the result of substantial evaluated. see nat’l ass’n of bds. of pharmacy, 633 f.3d at 1311 (noting in marks omitted)). because of the unique characteristics of public defendants, doe’s concerns. and there is simply no indication that the bop “intends to hold b. case: 13-10280 date filed: 04/08/2014 page: 6 of 17 has revealed none. see rich, 716 f.3d at 532 (“there is nothing to suggest that returned to the reidsville prison. thus the same alleged conduct which appellant mr. doe was convicted in the district of columbia for violations of the d.c. standard for rebutting the government actor’s presumption. the district court purportedly “to ensure the safety and orderly running of” usp coleman ii. the colorado in a matter of months or less, which is a remarkably short period of time in the future. while he acknowledged that his recent move to the colorado prison the bop said it had taken action, just before filing the motion, that rendered mr. cir. 2010) (per curiam) (affirming the district court’s grant of summary judgment to mr. stover (april 8, 2014) throughout mr. doe’s incarceration, the bop has taken inconsistent positions soon after the investigation ended, mr. doe was transferred to a lower that mr. doe has now been moved to a state facility. however, given the facts of ct. at 709; harrell, 608 f.3d at 1267–68. this case, considered in light of the factors this court has reviewed in deciding and this case is remanded for further proceedings. mr. doe opposed the bop’s motion to dismiss, arguing that it had still failed code and has since been incarcerated in various prisons run by the bop. his the bop soon filed proof of mr. doe’s transfer to the colorado department of e.g., parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 701, 719, in conducting both the initial inquiry of unambiguous termination as well as atlanta; and (2) an injunction requiring the bop to have mr. doe removed from a ouachita watch league v. jacobs, 463 f.3d 1163, 1170 (11th cir. 2006). or safety concerns, to be placed in anything but a high-security bop facility. in activities,” coral springs st. sys., inc., v. city of sunrise, 371 f.3d 1320, 1328–29 benefit of oral argument, we conclude that the defendants failed to demonstrate requested relief. mr. doe was granted leave to proceed under a pseudonym based on concerns for his safety. precedent, we emphasize that the government actor is entitled to this presumption mr. doe will not be returned to a high-security bop facility. after years of the supreme court has reminded us: d.c. docket no. 1:07-cv-02764-rws will be reinstated if the suit is terminated.” id. at 1285. consistent with our litigation, including an appeal to this court, the district court scheduled the case ii. of the judicial protection that it sought. doe’s claims moot. the motion to dismiss included an affidavit explaining that id. at 1312 (finding reasonable basis to conclude infringement might continue engaging the officer in conversation about their earlier sexual interactions. the true. nat’l ass’n of bds. of pharmacy v. bd. of regents, 633 f.3d 1297, 1301 n.3 highlighting the condition precedent, we held in troiano that “a challenge to a says referred to “what you did in atlanta.” soon after the attack in kentucky, mr. as making a second favorable transfer at a later time. id. at 402, 95 s. ct. at 2334– district court’s mootness determination because they were not raised expressly before the troiano or in later cases involving voluntary cessation by government actors. doe was motivated by short-term convenience rather than long-term policy. defendants never promised not to resume the prior practice). instead the bop material change in circumstances justifying the transfer. defendants, in his individual capacity, et al., doe filed this lawsuit. challenged conduct has been unambiguously terminated. friends of the earth, inc., 7 cessation of allegedly illegal conduct” on the eve of trial. 422 u.s. 395, 401–02, a result, we have no idea whether the [bop’s] decision was ‘well-reasoned’ and a district court’s decision on mootness is a question of law we review de “will be moot in the absence of some reasonable basis to believe that the policy another. we note that the bop has never said mr. doe will not be transferred back case: 13-10280 date filed: 04/08/2014 page: 8 of 17 doe’s burden to show he will. friends of the earth, inc., 528 u.s. at 190, 120 s. reinstated if the suit is terminated.’” but while it is true that this language does standard. second we must decide whether mr. doe’s request for injunctive relief court has applied this same standard in cases involving government actors. see, wrongful behavior could not reasonably be expected to recur” (internal quotation transfer request also gives the reason for mr. doe’s move as his failure “to corrections system simply does not show that the bop has unambiguously similar promises before . . . and failed to keep them, prompting the current law another request for transfer to a low- or medium-security bop facility based on his after years of inaction. this strongly suggests that the most recent transfer of mr. 713 f.3d at 594. this circumstance distinguishes mr. doe’s case from one like usp atlanta against another bop officer. within hours of the usp coleman staff it can hardly be said that its ‘termination’ of the behavior is unambiguous.”). amended a challenged statute or policy—often a clear indicator of unambiguous (toc), inc., 528 u.s. 167, 189, 120 s. ct. 693, 708 (2000). “[a] defendant u.s. 270, 273, 61 s. ct. 510, 512 (1941) (noting the difficulty in fashioning a attacks purportedly linked to his reputation as an informant. after the second returned to a high-security bop facility. precedent all decisions of the former fifth circuit handed down before october 1, 1981. id. at case: 13-10280 date filed: 04/08/2014 page: 2 of 17 designator at the bop’s designation and sentence computation center (dscc), deliberation, or is simply an attempt to manipulate jurisdiction;” and (3) “whether corrections. inconsistency than substantial deliberation. explain why it decided to make the transfer now, when it had failed to do so bop. contrary to the bop’s arguments, messers. stover and samuels—or any successors later rejected ‘where there is a substantial likelihood that the offending policy will be advertisements only at the urging of the bar’s counsel after this litigation had 13 (2000) (per curiam). simply to deprive the district court of jurisdiction. compare troiano, 382 f.3d at substituted automatically pursuant to fed. r. civ. p. 25(d)—have the authority through their officer resigned as a result of the investigation. in return for his role in the 528 u.s. at 189–90, 120 s. ct. at 708–09; harrell, 608 f.3d at 1267–68. it is true case: 13-10280 date filed: 04/08/2014 page: 17 of 17 we will first consider whether the district court applied the correct legal case: 13-10280 date filed: 04/08/2014 page: 12 of 17 in newkirk, the prison system promptly addressed the prisoner’s concern after one


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