Tiedemann v. Mitchell

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Kenneth Daniel Tiedemann, Sr., No. CV-17-00597-TUC-CKJ 10 Plaintiff, ORDER 11 v. 12 Mary M Mitchell, et al., 13 Defendants. [14] 15 On October 16, 2020, this Court granted Defendants Motion to Dismiss and entered 16 Judgment for Defendants. The Court denied reconsideration, and Plaintiff appealed. On 17 July 3, 2023, the United States Court of Appeals for the Ninth Circuit issued an Opinion 18 affirming in part and reversing in part this Court’s decisions. The Mandate issued on 19 August 25, 2023. Accordingly, the case is returned to the Court’s active docket. 20 Plaintiff challenged a Bureau of Prisons (BOP) policy that places a 300-minute-per21 month cap on phone calls. According to the appellate court, Plaintiff plausibly alleged 22 claims under the First and Fifth Amendment interests in free association with family and 23 others that survived the pleading stage. The appellate court affirmed this Court’s dismissal 24 of Plaintiff’s claims for injunctive relief brought against two Defendants, former wardens, 25 as moot because Plaintiff was transferred to another facility. It reversed dismissal of the 26 action against the Regional Director because Plaintiff challenged a regionally applicable 27 policy. Most importantly, the appellate court explained the Court erred by dismissing the 28 action without granting Plaintiff leave to amend to add his current warden as a co1 defendant. Pursuant to the appellate court’s directives on remand, the Plaintiff should be 2 allowed to file a Second Amended Complaint to add the warden of the facility where he is 3 now incarcerated, and the Warden and Regional Director should file an Answer. 4 On September 5, 2023, Plaintiff filed a Notice of Change of Address which reflects 5 that he is no longer incarcerated; he was released on August 7, 2023. This short circuits the 6 Court’s ability to follow the directives of the appellate court on remand. “A case becomes 7 moot ‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable 8 interest in the outcome.’” Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003) (quoting Clark 9 v. City of Lakewood, 259 F.3d 996 , 1011 (9th Cir.2001)). The Court considers sua sponte 10 whether Plaintiff’s release extinguishes his legal interest in an injunction because it would 11 have no effect on him. See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir. 12 2004) (citing Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.2002)). 13 An inmate's release from prison while his claims are pending generally will moot 14 any claims for injunctive relief relating to prison policies unless the suit is a class action. 15 Preiser v. Newkirk, 422 U.S. 395 , 402–03 (1975); Johnson v. Moore, 948 F.2d 517 , 519 16 (9th Cir.1991); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Plaintiff proceeds 17 here for injunctive relief only. His damage claims under Bivens v. Six Unknown Named 18 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), were dismissed pursuant to 19 Ziglar v. Abbasi, 582 U.S. 120 (2017), because they arose in a new Bivens context and that 20 there were special factors counseling hesitation in the expansion of Bivens. (Order (Doc. 21 12) at 5; Order (Doc. 28) at 1 n.1), affirmed, Tiedemann v. Von Blanckensee, 72 F.4th 1001 , 22 1015 (9th Cir. 2023). 23 The Court is mindful of the appellate court’s admonition to not take a “whack-a24 mole” approach to mootness. (Decision (Doc. 72-1) at 14.) As the appellate court did, this 25 Court is guided by Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 2001). In Dilley, the court 26 considered whether the case is “capable of repetition, yet evading review.” Roe v. Wade, [27] 410 U.S. 113, 125 (1973). This exception to the mootness doctrine applies when (1) the 28 challenged action is too short in duration to be fully litigated prior to its expiration and (2) 1 there is a reasonable expectation that the injury will occur again. Weinstein v. Bradford, [2] 423 U.S. 147, 149 (1975) (per curiam). Dilley's claim fell short because a claim of 3 inadequate access to legal materials is not of short duration and, as the mirid of cases 4 challenging access to prison law libraries demonstrated, these claims do not escape review. 5 Dilley, 64 F.3d at 1368–69. The same can be said for Plaintiff’s First and Fifth Amendment 6 claims challenging BOP’s 300-minute-per-month cap on phone calls. 7 First, the duration of this challenged action is limited only by the length of 8 incarceration. For example, Plaintiff’s action was filed in 2017 and dismissed on October 9 16, 2020. There was ample time to resolve the claims, which remain pending only because 10 Plaintiff successfully appealed the dismissal. The challenged act, the 300-minute-per11 month cap on phone calls, is not short in duration. 12 Second, like Dilley, the Plaintiff cannot demonstrate a reasonable expectation that 13 he will be subjected again to the challenged policy. When Dilley was subjected to the 14 challenged prison law library policy, he was classified at the highest level of risk but then 15 transferred to a lower-level security institution. He would be reclassified to high risk and 16 correspondingly subject to the challenged policy only if he were to commit a serious 17 violation of prison rules. This was “too speculative” to prevent mootness. Id. at 1369 (citing 18 Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985); see also Reimers v. Oregon, 863 19 F.2d 630 , 632 & n. 4 (9th Cir.1988) (plaintiff who had been released from prison had no 20 reasonable expectation of return because such return would occur only if the plaintiff 21 committed additional criminal acts). Plaintiff has no reasonable expectation of returning 22 and being subjected to the 300-minute-per-month cap for phone calls because this would 23 only occur if he committed additional criminal acts. 24 When Plaintiff brought this action, an injunction would have afforded him relief but 25 now an injunction would not provide any effectual relief to him whatsoever. “The 26 underlying concern is that, when the challenged conduct ceases such that there is no 27 reasonable expectation that the wrong will be repeated, then it becomes impossible for the 28 court to grant any effectual relief whatever to the prevailing party.” City of Erie v. Pap's 1 A.M., 529 U.S. 277, 287 (2000) (internal citations and quotations omitted). If the parties 2 cannot obtain any effective relief, any opinion about the legality of a challenged action is 3 advisory. Id. An issue becomes moot “when the issues presented are no longer live or the 4 parties lack a legally cognizable interest in the outcome.” Id., see also Arizonans for 5 Official English v. Arizona, 520 U.S. 43 , 68 n. 22 (1997) (explaining “requisite personal 6 interest that must exist at the commencement of the litigation (standing) must continue 7 throughout its existence (mootness)”) (internal citation and quotation omitted). 8 “The party asserting mootness has a heavy burden to establish that there is no 9 effective relief remaining for a court to provide.” In re Palmdale Hills Property, LLC, 654 10 F.3d 868 , 874 (9th Cir.2011). If a case becomes technically moot, it may nevertheless be 11 judiciable if one of three exceptions to the mootness doctrine applies: (1) where a plaintiff 12 “would suffer collateral legal consequences if the actions being appealed were allowed to 13 stand”; (2) where defendant voluntarily ceased the challenged practice; or (3) for “wrongs 14 capable of repetition yet evading review.” Ctr. for Biological Diversity v. Lohn, 511 F.3d 15 960 , 964–66 (9th Cir.2007). 16 The Court calls for full briefing by the parties on whether the release of Plaintiff has 17 rendered this action moot. 18 Accordingly, 19 IT IS ORDERED that the Clerk of the Court shall return this case to the Court’s 20 active docket. 21 IT IS FURTHER ORDERED that within 21 days of the filing date of this Order, 22 the Defendants shall file an opening brief addressing mootness. 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 IT IS FURTHER ORDERED within 21 days of Defendants’ filing their brief, the || Plaintiff shall file a Response. Defendants may file a Reply within seven days of the filing || date of the Response. 4 Dated this 12th day of September, 2023. [5] Ei LE Qctee 7 Honorable Cin . J5fgenson United States District Judge [28] -5-