United States Court of Appeals, District of Columbia Circuit
Gordon C. Reid, Appellant
Mark S. Inch, Director, Federal Bureau of Prisons, Appellee
from the United States District Court for the District of
Columbia (No. 1:15-cv-00375)
P. Redmond, Student Counsel, argued the cause as amicus
curiae in support of appellant. With him on the briefs were
Erica Hashimoto, Director, and Paola Pinto and Sean Stein,
Schaefer, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: Griffith, Wilkins and Katsas, Circuit Judges.
WILKINS, CIRCUIT JUDGE
case concerns whether the District Court properly dismissed
based on mootness the claims of an incarcerated prisoner.
Because the allegations in Gordon Reid's Complaint
logically fall within a mootness exception for claims
"capable of repetition, yet evading review," we
reverse the decision of the District Court and remand the
case for further proceedings.
reviewing the District Court's dismissal, we "accept
all of the factual allegations in the complaint as
true." Jerome Stevens Pharm., Inc. v. FDA, 402
F.3d 1249, 1253 (D.C. Cir. 2005) (alteration and citation
omitted). The facts recounted here come from the Complaint or
undisputed submissions in the record. In 2008, the United
States District Court for the District of New Hampshire
sentenced Gordon Reid to incarceration for a term of 220
months, followed by three years of supervised release, for
the crime of Interference with Commerce by Threats of
Violence. Reid began serving that sentence on May 6, 2008,
when he was delivered to the U.S. Penitentiary McCreary in
Kentucky. Id. Sometimes for disciplinary reasons,
and other times for administrative ones, Reid was housed
repeatedly in Special Housing Units (SHUs) at McCreary and
the other Bureau of Prisons (BOP) facilities, where he has
continued serving his sentence.
proceeding pro se, filed a Complaint in the District
Court for the District of Columbia on March 16,
2015. At the time, Reid was incarcerated at the
U.S. Penitentiary in Tucson, Arizona. He alleged that BOP had
violated its own policies and procedures in three ways: (1)
BOP had failed to deliver his magazine subscriptions while he
was confined in SHUs, thus violating 28 C.F.R. § 540.71
and BOP Program Statement 5266.11 (Nov. 9, 2011); (2) BOP had
deprived him of outside exercise while he was confined in
SHUs, violating 28 C.F.R. § 541.31(g) and BOP Program
Statement 5270.10 (Aug. 1, 2011); and (3) BOP deprived him of
meaningful access to the administrative remedy procedures in
violation of 28 C.F.R. § 542.10 and BOP Program
Statement 1330.18 (Jan. 6, 2014). When questioned about these
violations, Reid alleges BOP personnel "invariably"
claimed that they were complying with "BOP Policy."
J.A. 7-8. We liberally construe the pro se Complaint
as asserting not only a broad challenge to a nationwide BOP
policy or practice, but also a declaratory claim with respect
to the individual deprivations Reid suffered in SHUs. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam). The Complaint asked for declaratory, injunctive, and
mandamus relief to remedy these alleged violations.
total, Reid appears to have been transferred in and out of a
SHU over twenty times from August 1, 2007, to July 19, 2016,
under either administrative detention or disciplinary
segregation status. This amounted to at least 764 days in a
SHU, and some of those confinement periods postdated the
filing of his Complaint in the District Court.
filed a motion to dismiss or, in the alternative, for summary
judgment, arguing that Reid's claims were moot. BOP
argued that Reid was "no longer confined at USP Tucson,
his place of confinement when he filed this civil
action," or at any of the other facilities where the
alleged violations occurred. Mot. to Dismiss at 15-16, No.
1:15-cv-375 (RMC) (D.D.C. filed Sept. 28, 2015), ECF No. 14.
BOP concluded that Reid's "allegations concerning
how staff at previous institutions handled the processing of
inmates' incoming magazines, how SHU staff allocated
outside recreation time, or Unit Team's protocol for
conducting rounds in SHU no longer present[ed] a case or
controversy," and argued that the mootness exceptions
did not apply. Id. at 16.
response to BOP's motion, the District Court issued an
order to "advise the pro se Plaintiff of his
obligations" under the Rules, as well as the
consequences for failing to follow them. Order at 1, 3, No.
1:15-cv-375 (RMC) (D.D.C. filed Oct. 1, 2015), ECF No. 15.
The District Court informed Reid that he needed to file a
response in opposition to the motion by November 30, 2015,
and advised him of all relevant Federal Rules of Civil
Procedure and local rules regarding opposition to motions to
dismiss and for summary judgment. Id.
initially granting BOP's motions because of Reid's
failure to timely respond, the District Court accommodated
Reid's late filing of a response opposing BOP's
motions. See Order at 1-2, No. 1:15-cv-375 (RMC)
(D.D.C., ECF No. 21. In his brief opposing dismissal and
supporting his cross-motion for summary judgment, Reid argued
that the case was not moot because he was challenging ongoing
practices of BOP. Mot. to Vacate Judgment at 106, No.
1:15-cv-375 (RMC) (D.D.C. filed May 6, 2016), ECF No. 20. He
also argued that the case was an exception to the mootness
doctrine: "That these controversies are capable of
repetition is a matter of historical fact rather than
deduction for Plaintiff has, in fact, been repeatedly housed
in SHU units across the country where, time and again,"
BOP had committed the same violations. Id. at 109.
District Court ordered BOP to file an opposition to
Reid's cross-motion for summary judgment, combined with
BOP's opposition to Reid's motions to strike and
reply in support of its motion to dismiss. In its filing, BOP
stated that "[n]ormally, a prisoner's transfer or
release from a prison moots any claim he might have for
equitable relief arising out of the conditions of his
confinement in prison." Def.'s Opp'n to Pl's
Cross Mot. for Summ. J. & Reply in Supp. of Def.'s
Mot. to Dismiss (Def.'s Cross Opp'n & Reply) at
7, No. 1:15-cv-375 (RMC) (D.D.C. filed July 21, 2016), ECF
No. 25; see also Scott v. District of Columbia, 139
F.3d 940, 941 (D.C. Cir. 1998). BOP responded to Reid's
argument that his claims were not moot due to changing
circumstances by reiterating that Reid had since been
transferred to another facility and out of the SHU.
Def.'s Cross Opp'n & Reply 7-8. BOP argued that
"with the exception of one night, [Reid] ha[d]
not been confined in SHU at all since his transfer to USP
Coleman." Id. at 8 (emphasis in original). BOP
stated that Reid's claims were "linked exclusively
to his confinement in the SHUs and therefore no longer
present[ed] a 'live' controversy," as Reid was
no longer confined in SHUs. Id. at 9. BOP also
pointed out that Reid had not alleged continued violations
since his (then) latest transfer. Id. In support,
BOP attached an affidavit stating that Reid was no longer
housed in a SHU and had been in the general population at the
Coleman facility with the exception of one twelve-hour
period. Decl. of An Tran at 1-5, No. 1:15-cv-375 (RMC)
(D.D.C. filed July 21, 2016), ECF No. 25-1. BOP also attached
inmate records with data it had not originally provided in
support of its motion. Id. at 8-50.
District Court instructed Reid that he could file a reply in
support of his cross motion for summary judgment before
August 29, 2016. Order at 2, No. 1:15-cv-375 (RMC) (D.D.C.,
ECF No. 21. On November 8, 2016 - over two months after the
deadline for Reid's reply brief - the District Court
issued an order granting BOP's motion to dismiss
Reid's claims as moot and denying his cross motion for
summary judgment. The District Court noted that Reid had
"asserted nothing" to contradict BOP's argument
that "for the past straight year" Reid had not been
"confined to the Special Housing Units that gave rise to
his claims." Reid, 2016 WL 6602614, at *1.
Thus, the District Court held:
"Normally, a prisoner's transfer or release from a
prison moots any claim he might have for equitable relief
arising out of the conditions of his confinement in that
prison." And in the absence of "a cognizable cause
of action," a plaintiff has "no basis upon which to
seek declaratory relief."
Id. (citations omitted).
appeal, Amicus for Reid argues that the District Court did not
meet its obligations for litigation involving a pro
se plaintiff,  and that Reid's claims avoid mootness
because they are capable of repetition, yet evading review
or, alternatively, because the voluntary cessation doctrine
review de novo the District Court's dismissal
for mootness. Schmidt v. United States, 749 F.3d
1064, 1068 (D.C. Cir. 2014). "Under Article III of the
United States Constitution we 'may only adjudicate
actual, ongoing controversies.'" District of
Columbia v. Doe, 611 F.3d 888, 894 (D.C. Cir. 2010)
(quoting Honig v. Doe, 484 U.S. 305, 317 (1988)).
Under the mootness doctrine, we cannot decide a case if
"events have so transpired that the decision will
neither presently affect the parties' rights nor have a
more-than-speculative chance of affecting them in the
future." Clarke v. United States, 915 F.2d 699,
701 (D.C. Cir. 1990) (en banc) (quotation marks omitted). The
party seeking jurisdictional dismissal must establish
mootness, while the opposing party has the burden to prove
that a mootness exception applies. Honeywell Int'l,
Inc. v. Nuclear Regulatory Comm'n, 628 F.3d 568, 576
(D.C. Cir. 2010).
Supreme Court has carved out one such exception for claims
that are "capable of repetition, yet evading
review." Spencer v. Kemna, 523 U.S. 1, 17
(1998). "The exception applies when: '(1) the
challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there
is a reasonable expectation that the same complaining party
will be subject to the same action again.'"
Doe, 611 F.3d at 894 (quoting Jenkins v.
Squillacote, 935 F.2d 303, 307 (D.C. Cir. 1991)). At the
motion to dismiss stage, courts assess justiciability based
in part on "the theory of injury presented in the
complaint" and "the facts alleged in support of the
claim." Haase v. Sessions, 835 F.2d 902, 907
(D.C. Cir. 1987) (reversing district court's 12(b)(1)
dismissal because the court "did not adequately assess
whether the alleged policy pose[d] a realistic threat to [the
plaintiff]"). Although Haase applies this
framework to constitutional standing, not mootness, they are
"related concepts" because both go to the
plaintiff's injury. Garden State Broad. Ltd.
P'ship v. FCC, 996 F.2d 386, 394 (D.C. Cir. 1993).
If anything, the standing doctrine is stricter than the
mootness doctrine. If the theory of justiciability is
"not itself inherently flawed, the [Article III] inquiry
is ordinarily . . . complete." Haase, 835 F.2d
urges us to hold Reid's factual allegations, which it
finds "speculative," to a stricter standard, such
as the plausibility standard articulated in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007). But it is impossible
for a plaintiff, when she initially files a Complaint, to
make plausible allegations supporting a mootness exception.
The District Court focused not on the allegations Reid made
in his Complaint, but rather on the legal theory of
justiciability. The District Court dismissed the pleadings on
the basis that Reid's transfer from the SHU rendered
inapplicable the "capable of repetition, yet evading
review" exception as a matter of law. Because we
disagree and see no logical flaw in the theory of why the
mootness exception may apply, we reverse the District
Court's decision to dismiss the Complaint at the
Reid adequately alleges that the challenged action is too
fleeting to be fully litigated. To address whether a claim
evades review, we ask whether "the challenged action was
in its duration too short to be fully litigated prior to its
cessation or expiration." Weinstein v.
Bradford, 423 U.S. 147, 149 (1975). In Doe, we
noted that "there can be no doubt that a one-year
placement order under the [Individuals with Disabilities
Education Act] is, by its nature, too short in duration to be
fully litigated prior to its expiration." 611 F.3d at
894-95. Based on the information provided by BOP, Reid's
longest stay in a SHU was 120 days, and many of his other
stays were for much shorter time periods. Amicus Br. 8-10,
33. We agree with Amicus that this short duration
"evades even district court review, let alone review by
this Court and the Supreme Court." Id. at 33.
The short durations of Reid's SHU placements clearly meet
we see no logical deficiency in Reid's allegations that
he reasonably expects to be subjected to the same challenged
deprivations in the future. See FEC v. Wisc. Right to
Life, Inc., 551 U.S. 449, 463-64 (2007). As Amicus
points out, Reid demonstrated that BOP had placed him in the
SHU "in almost every facility that confined him for
longer than twenty-eight days, including four instances of
segregation after he filed his complaint."
Amicus Br. 31.
point, Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581 (1999), is instructive. In Olmstead, the Supreme
Court noted that a claim was not moot when the petitioners
were "currently receiving treatment in community-based
programs" because of "the multiple institutional
placements [the petitioners] ha[d] experienced," making
the claims capable of repetition, yet avoiding review.
Id. at 594 n.6. Thus, even though the petitioners
were no longer in an institutional placement, their claims
avoided mootness due in ...