Opinion
Civil Action 19-cv-02517-WJM-KLM
12-14-2022
STANLEY L. O'BANION, Plaintiff, v. ANDRE MATEVOUSIAN, and J.E. KRUEGER Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion for Summary Judgment [#86] (the “Motion”). The Motion [#86] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#87]. The Court has reviewed the Motion [#86], the Response [#94], the Reply [#95], Plaintiff's Response to Defendant's Reply [#96], which the Court deems to be a Surreply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reason set forth below, it is respectfully recommended that the Motion [#86] be granted.
“[#86]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
Neither the Federal Rules of Civil Procedure nor this Court's local rules of procedure provide for the filing of a surreply. Pirnie v. Key Energy Servs., LLC, No. 08-cv-01256-CMA-KMT, 2009 WL 1386997, at *1 (D. Colo. May 15, 2009); D.C.COLO.LCivR 7.1(d). Accordingly, Plaintiff was required to file a motion for leave to file a surreply, and to demonstrate that a surreply was necessary. Id. (stating that “a surreply brief is necessary only if the reply brief raises new material that was not included in the original motion”). However, in the interest of justice and because Plaintiff is proceeding pro se, the Court has considered Plaintiff's Surreply [#96].
I. Introduction
Plaintiff is a pro se inmate at the United States Penitentiary-Administrative Maximum (“ADX”) in Florence, Colorado. See Response [#94] at 1. Defendant Matevousian is the warden of ADX; Defendant Krueger is the Regional Director for the North Central Region of the Bureau of Prison' (“BOP”). Compl. ¶¶ 4-5.
The Court must liberally construe the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Plaintiff's Initial Complaint [#1] asserted two claims: (1) Violation of Due Process Clause Property Interest under the Fifth Amendment, and (2) Abridging the Freedom of Speech in Violation of the First Amendment (Retaliation). After briefing on Defendants' Motion to Dismiss [#19] and Motion for Partial Summary Judgment [#20], both claims were dismissed. See Order [#53]. The Fifth Amendment claim was dismissed without prejudice, and the other claims were dismissed with prejudice. Id. at 27. Plaintiff was granted leave to file an amended complaint that (1) cured the jurisdictional defects in his Fifth Amendment claim, and (2) set forth an Eighth Amendment claim for injunctive relief if Plaintiff so chose. Id. at 26-27.
Plaintiff's Amended Complaint [#68] again sues both Defendants Kreuger and Matevousian in their official capacity, realleging the Fifth Amendment claim only. See id.; Response [#94[ at 1-2 This claim relates to Plaintiff's averment that he was denied hygiene items, i.e., soap and toothpaste, pursuant to Defendants' alleged discontinuation of a “Congressionally legislated Federal benefit” to provide inmates with such benefits within the BOP, including the Control Rooms and Special Housing Unit (“SHU”) of the ADX. See Am. Compl. at 4-12 Further, Plaintiff alleges that his inmate trust account (which he refers to as his “prison account”), was encumbered in July 2018, meaning that he could not buy such hygiene items. Id. at 6. Plaintiff seeks: (1) a declaration that his rights were violated and (2) a permanent injunction ordering the provision of soap and toothpaste to Control Unit inmates at the ADX. Id. at 14.
II. Material Facts
A. Introduction
At the outset, the Court notes that Plaintiff's Response [#94] does not comply with District Judge William J. Martinez's Practice Standards. Section III.E.5 of those Standards requires that any party opposing a motion for summary judgment “shall provide a ‘Response to Movant's Material Facts' in its brief, admitting or denying the asserted material facts” as explained in that section. Plaintiff did not comply with this requirement, instead simply stating his own version of the facts in a purported “Declaration” contained in the Response [#94]. See id. at 7-10.While Plaintiff's facts in the “Declaration” relate to and address some of the facts asserted by Defendants in the Motion [#86], as highlighted by Defendants in the Reply [#95], the Court must assume as to Defendants' facts which were not addressed by Plaintiff that they are undisputed. This assumption is appropriate because Defendants supported their facts with evidence as required by Fed.R.Civ.P. 56(c)(1), which Plaintiff did not refute in any manner by affidavit or otherwise as required by Rule 56. See also Section III.E.4.b of Judge Martinez's Practice Standards (requiring that any denial of a fact asserted by the moving party “be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to supporting evidence in the record.”) Accordingly, the Court considers Defendants' facts which Plaintiff did not address or specifically dispute and support with evidence to be undisputed for purposes of the Motion [#86]. See Fed.R.Civ.P. 56(e)(2).
Defendants interpret Plaintiff's Declaration containing numbered paragraphs with factual allegations to be Plaintiff's response to Defendants' Statement of Undisputed Facts. Reply [#95] at 2 n. 2. The Court is unable to determine this from the Declaration. Defendants also note that Plaintiff provides a “Statement of Disputed Facts” that does not actually states facts but contains a series of questions that Plaintiff asserts are still in dispute. Id. (citing Response [#94] at 11-12).
As further support for this decision, the Court notes that the Reply [#95] put Plaintiff on notice of the fact that his failure to respond to those facts meant that they are deemed undisputed for purposes of the Motion. Id.at 4. Plaintiff then filed a Surreply [#96], but failed to remedy this issue or request leave from the Court to do so.
As to the facts that Plaintiff cited in his Response which are different from or are in addition to the facts cited by Defendants in the Motion [#86], Plaintiff did not comply with the requirements of Rule 56 and Judge Martinez's Practice Standards to state the evidence that supports these claims. See Fed.R.Civ.P. 56(c); Practice Standards, Section III.E.5. To the extent the facts are relevant, Defendants have generally denied the facts on the basis that they are unsupported. See Reply [#95] at 5-9. Many of the facts are, however, not relevant as they relate to Plaintiff's retaliation claim that was previously dismissed, as explained in detail in the Reply [#95] at pages six through nine. See, e.g., ¶¶ 18-29, 32-33. Accordingly, the Court considers Plaintiff's facts only to the extent they are relevant and are either supported by the record or are not disputed by Defendants. The Court now turns to the facts, citing to the evidence only when a fact is actually in dispute or when the Court believes it appropriate.
B. ADX Inmate Bulletins on Obtaining Hygiene Items and Plaintiff's Access to Such Items
In August 2018, the ADX issued an amended Inmate Bulletin regarding the provision of hygiene products to inmates. That Bulletin stated that “[n]on-Indigent inmates may purchase hygiene items from the commissary,” and that soap, toothpaste, and deodorant will be provided “each week to indigent inmates and those inmates with encumbered funds after review of their account.” Motion [#86], Ex. 2, K. Dell Decl. ¶ 16 and Att. 4.
On May 21, 2020, the Captain of the ADX issued an amendment to the August 2018 Inmate Bulletin providing that soap, toothpaste, and deodorant would be available upon request each week free of charge to all Control Unit and disciplinary segregation status inmates at the ADX (“May 2020 Inmate Bulletin”). Motion [#86], Ex. 2, K. Dell Decl. ¶ 18. While Plaintiff avers that this was a change to a federal statute (Response [#94] at 7), Defendants point out that this change was merely made in an Inmate Bulletin and did not alter any federal statute. Reply [#95] at 20 (citing K. Dell Decl. [# 86-8], ¶ 16). The May 2020 Inmate Bulletin was a return to the pre-August 2018 protocol. Motion [#86], Ex. 3, Pl.'s Dep. at 17:12-22.
Plaintiff also asserts that when Defendants attempted to restart distribution of hygiene items per this amendment, they were still not giving hygiene items to inmates in the Special Housing Units (“SHUs”) in the ADX or the FCC. Response [#94] at 9. This assertion must be disregarded because it is not supported by evidence and Defendants deny the assertion. Moreover, Defendants presented evidence that both prior to and after the outbreak of COVID-19, the BOP had a policy to ensure inmates had access to hygiene items, at least upon request. See Reply [#95] at 8-9 (citing, e.g., August 2018 Inmate Bulletin [#86-12] (“The Warden shall make available to an inmate those articles necessary for maintaining personal hygiene.”).
Plaintiff did not receive hygiene items (meaning soap and toothpaste) for the following periods: (1) August 15-27, 2018; (2) October 17-27, 2018; (3) May 15-27, 2019; (4) March 31 -April 8, 2020; (5) April 21-May 1, 2020; and (6) September 21-28, 2020.
Since September 28, 2020, Plaintiff has had access to hygiene items, including soap and toothpaste, on a regular basis. Motion [#86], Ex. 3, Pl.'s Dep. at 40:8-16.Further, Plaintiff has not suffered any physical or mental injuries from the six occasions he did not receive hygiene items. Id. at 40:17-23; see also Ex. 4 at 10 (Response to Request for Admission No. 4).
Plaintiff has not specifically alleged otherwise. To the extent the Response [#94] could be broadly construed to assert any additional failure to provide hygiene items to Plaintiff, it is not specific as to that issue and is not supported by any evidence.
B. The ADX units, and Plaintiff's progress through them
See, generally, Motion [#86], Ex. 1, C. Harvey Declaration.
The ADX is part of the Federal Correctional Complex in Florence, Colorado. The ADX is an administrative maximum facility that houses the Bureau's most violent, disruptive, and escape-prone inmates. It operates five programs: General Population and Step-Down; Special Security Unit; the Control Unit; the High Security Adult Alternative Housing; and the Release Preparation Unit.
The Control Unit houses the most dangerous and disruptive inmates within the Federal Prison System. Inmates typically are designated to the Control Unit as a result of serious misconduct during service of their sentences. At least every 60 to 90 days, an Executive Panel reviews the status of each inmate in the Control Unit to determine the inmate's readiness for release from that Unit. Once inmates meet the criteria to be released from the Control Unit, they will typically be placed in a General Population Unit.
The Step-Down Program is a way for ADX inmates to move to less restrictive housing units with the ultimate goal of having inmates advance out of the ADX to a less restrictive facility. If inmates demonstrate periods of clear conduct and positive institution adjustment, they may become eligible for placement in the Step-Down component of the General Population Program. The Unit Team reviews each inmate at least every six months to determine eligibility for consideration for placement in, advancement through, and/or transfer out of, the Step-Down Program.
Inmates assigned to the Step-Down component are initially housed in the Intermediate Unit (J/A Unit), and then may progress to the Transitional phase (located at USP Florence, adjacent to the ADX on the complex), and finally may be moved to the Pre-Transfer Unit (also located at USP Florence). Inmates who are successful in the PreTransfer Unit may be transferred to another appropriate Bureau facility.
An inmate may be removed from the Step-Down Program if he fails to adhere to institutional policies and procedures. Inmates who are removed from that Program and found guilty of the greatest severity level incident reports or high-severity level incident reports may be placed in a general population unit.
Plaintiff was approved for Control Unit placement on December 12, 2012. Plaintiff was housed in ADX's Control Unit from December 2013 until July 2021.
In July 2021, Plaintiff was released from the Control Unit and placed in the F Unit, a general population and Step-Down Unit, because the Executive Panel determined Plaintiff was ready to be moved from the Control Unit to a less-restrictive general population unit. Defendants admit, however, Plaintiff's assertion that on August 22, 2018, Plaintiff was moved from B Unit, the Control Unit, to C Unit, an overflow Control Unit. Reply [#95] at 5.
In February 2022, Plaintiff was placed in the J Unit, the intermediate step of the Step-Down Program. Plaintiff is currently in that Unit, a General Population Unit at the ADX. If Plaintiff continues to follow institutional rules and regulations and participate in programming, it is expected that Plaintiff will continue progressing through the Step-Down Program and will not be moved back to the Control Unit.
C. Plaintiff's Inmate Trust Fund Account
See, generally, Motion [#86], Ex. 2, K. Dell Declaration.
As part of the initial classification process, staff will assist the inmate in developing a financial plan for meeting his or her legitimate financial obligations, known as the Financial Responsibility Program. The BOP can “encumber” funds in an inmate's trust account for failure to participate in the Financial Responsibility Program or to comply with the provisions of his financial plan. “Encumbrance” is a transaction that temporarily places a hold on an inmate's available balance. When an inmate's account is encumbered, he cannot access his trust account funds, including to purchase items from the commissary.
Plaintiff's inmate account was encumbered in July 2018 because he would not participate in the Financial Responsibility Program. Plaintiff's inmate account was unencumbered in July 2021 after he agreed to participate in the Program, and it remains unencumbered. Since July 2021, Plaintiff has been able to use funds from his inmate trust fund account to purchase items from the commissary. He has purchased a variety of items, including soap and toothpaste.
II. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.
The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248. The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324).
Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure' 2738 (4th ed. 2017). Additionally, “[w]hen opposing parties tell two different stories,” one of which is “contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
III. Analysis
An inmate asserting a Fifth Amendment procedural due process claim must plausibly allege two elements: (1) “there exists a liberty or property interest of which [he] has been deprived[;]” and (2) “the procedures followed by the State were constitutionally [in]sufficient.” Id. at 23 (citing Swarthout v. Cooke, 562 U.S. 216, 219 (2011).) Here, Defendants contends that the claim should be dismissed, not on the merits, but because the claim has become moot. The Court now turns to that issue.
A. Mootness
There are two kinds of mootness: constitutional mootness and prudential mootness. The Court focuses on constitutional mootness.
As Defendants highlight, under Article III's case or controversy requirement, “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Motion [#96] at 11 (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quotation marks and citations omitted)). A case becomes constitutionally moot “when intervening acts destroy a party's legally cognizable interest in the outcome of adjudication.” Tandy v. City of Wichita, 380 F.3d 1277, 1290 (10th Cir. 2004).
A claim will be deemed constitutionally moot unless a “proper judicial resolution” would settle “some dispute which affects the behavior of the defendant toward the plaintiff.” McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) (internal citation and quotation marks omitted). Courts have no authority “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Navani v. Shahani, 496 F.3d 1121, 1127 (10th Cir. 2007) (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (other citations omitted)). “In deciding whether a case is moot, the crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (citation and quotation marks omitted). Put another way, a case becomes moot “when a plaintiff no longer suffers ‘actual injury that can be redressed by a favorable judicial decision.'” Rhodes v. Judiscak, 676 F.3d 931, 933 (10th Cir. 2012). A party's legal interest in the outcome of the case must be “more than simply the satisfaction of a declaration that a person was wronged.” Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004).
Under these principles, courts hold that an inmate may not obtain prospective injunctive relief regarding “conditions at a facility where he is no longer housed and has not shown he is likely to be housed again.” Silverstein v. Fed. Bureau of Prisons, 559 Fed.Appx. 739, 751 (10th Cir. 2014). Thus, a conditions-of-confinement claim becomes moot when an inmate is no longer subject to those conditions because the courts are unable to provide effective relief. Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011).
Here, as set forth in Section II, supra, it is undisputed that Plaintiff is no longer housed in the Control Unit (or the SHU), but is a general population inmate. Plaintiff's claim for denial of hygiene items was limited to Control Unit inmates and those in the SHU, and his claim was tied to being in the Control Unit. See Am. Comp. [#68 ] at 5-6. Since Plaintiff has been transferred out of the Control Unit, he no longer has a cognizable interest in the relief he seeks, and he cannot seek it for other Control Unit inmates. See Whitington v. Ortiz, 307 Fed.Appx. 179, 191 (10th Cir. 2009). The Court “cannot accord [Plaintiff] prospective relief [as to conditions in the Control Unit of ADX] that would not have any effect in the real world.” Jordan, 654 F.3d at 1029. As Defendants assert, any order the Court might issue about the ADX Control Unit would merely serve as an advisory opinion with no effect on Plaintiff now that he is housed in a Step-Down, general population, unit. See Motion [#86] at 15; Jordan, 654 F.3d at 1029. Moreover, as Defendants note, Plaintiff's claim relates to a policy under two federal regulations specific to the Control Unit and Special Housing Unit (“SHU”). See Reply [#95] at 10 (citing Am. Compl. [#86] at 2 n.2 (explaining the two regulations that are specific to hygiene requirements in the SHU and control units).
The Court finds that Plaintiff's claim is also moot because the May 2020 Inmate Bulletin provides Plaintiff with the relief he requested, as it provides Control Unit inmates with hygiene items free of charge upon request, as discussed in Section II, supra. See Am. Compl. [#68] at 25 (requesting “a permanent injunction” providing free “soap and toothpaste” to inmates in the Control Unit). While Plaintiff asserts in his Surreply [#96] that he has interviewed inmates who told him that Control Unit inmates were not receiving hygiene items, even upon request (id. at 2), this is unsupported by any evidence and thus does not create a genuine issue of material fact as to the issue. Furthermore, Plaintiff himself has not disputed that he received hygiene items after May 20, 2020, and this is the basis of his claim. See Am. Compl. [#68] at 12 (“Plaintiff files this action on behalf of himself”).
Finally, and related to the foregoing analysis, the Court finds that Plaintiff's claim for injunctive relief also fails for another reason: the prospective relief he seeks would not redress any harm to him. Injunctive relief can be obtained only for current or prospective injury. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 n.6 (10th Cir. 2005). A plaintiff “seeking prospective relief must show more than past harm or speculative future harm.” Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir. 2006) (internal citation and marks omitted). An injunction cannot “'be granted against something merely feared as liable to occur at some indefinite time in the future.'” Hale v. Ashcroft, 683 F.Supp.2d 1189, 1197-98 (D. Colo. 2009) (quotation omitted). Since Defendants are no longer engaging in the challenged conduct as to Plaintiff, the injunctive relief claim is no longer appropriate. See Farmer v. Brennan, 511 U.S. 825, 847 n.9 (1994).
B. The Voluntary Cessation Exception
Courts have recognized an exception to the mootness doctrine, when the defendant has voluntarily ceased a challenged practice that the defendant may resume at any time. See Rio Grande Silvery Minnow v. Bureau of Recl., 601 F.3d 1096, 1115 (10th Cir. 2010). The voluntary cessation “exception exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.” Id. (citation and quotation marks omitted); City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001) (voluntary cessation “traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.”). Thus, voluntary cessation will “moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.” Rio Grande, 601 F.3d at 1115.
The Court finds that the voluntary cessation doctrine does not apply because “'there is no reasonable expectation that the alleged violation will recur.'” Conkleton v. Zavaras, 527 Fed.Appx. 750, 753 (10th Cir. 2013) (quotation omitted). Plaintiff's averment that he “can be placed in the C-Unit (formerly the SHU)” “at any time, for any reason, without a hearing (Response [#94] at 16; see also Surreply [#96[ at 3), is not supported by the record and, thus, does not create a material dispute of fact. Further, this assertion is merely speculative, as is Plaintiff's assertion that he may again be denied hygiene items (id. at 2). See Conkleton, 527 Fed.Appx. at 753. In fact, the May 2020 Inmate Bulletin has been in place for two years and provides a “secure foundation for mootness” that appears to be genuine. Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 881 (10th Cir. 2019) (holding that courts “may ‘accord more solicitude' to government officials' claims that their voluntary conduct moots a case”) (citation omitted).
It is somewhat unclear what Plaintiff is referring to by the C-Unit. Defendants contend that this unit is usually, and currently, an ADX General Population Unit. Reply [#95] at 10 n. 5. Plaintiff contends that it used to be the SHU (Response [#94[ at 16), while Defendants asset only that it has been used as overflow housing for Control Unit inmates. Id. The Court will assume that Plaintiff's reference to the C-Unit is meant to refer either to the SHU or to the Control Unit. In either event, placement would appear to be based on misconduct. See id. at 11.
Moreover, the Tenth Circuit has held that ‘for purposes of assessing the likelihood that state authorities will reinflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.” Ind v. Colorado Dep't of Corr., 801 F.3d 1209, 1214 (10th Cir. 2015) (finding an inmate's transfer from administrative segregation to general population mooted his claims and the voluntary cessation exception did not save his claim from mootness). Defendants highlight that placement in the C-Unit is contingent on a number of things: it requires misconduct, hearings, a placement determination, and administrative review. See Reply [#95] at 11. This Court cannot assume that Plaintiff will commit a prohibited act, be found guilty, and then also be designated and, after an additional hearing and review, be ordered to the C-Unit, since each step of that sequence of events is speculative. See Conkleton, 527 Fed.Appx. at 753 (finding that an inmate's argument that he may be terminated from the program is “at most speculative” and “[a]ny future termination depends on [plaintiff's] own actions and behaviors.”). Finally, Plaintiff has presented no evidence by which the Court could plausibly determine that the May 2020 Bulletin which made hygiene items available upon request each week free of charge was done simply to deprive the Court of jurisdiction. Id.; see also Jordan, 654 F.2d at 1037 (finding that voluntary cessation did not apply where there was no evidence that the defendants were engaged in “subterfuge” to evade jurisdiction). .
C. Conclusion as to Mootness
Based on the foregoing, the Court find that Plaintiff's claim is moot under the constitutional mootness doctrine, and that the voluntary cessation exception to mootness does not apply. The Court also finds that Plaintiff's claim for injunctive relief must be dismissed because Defendants are no longer engaging in the challenged conduct as to Plaintiff. The Court therefore recommends that the Motion be granted as to Plaintiff's remaining Fifth Amendment claim.
Although not necessary to the Court's recommendation, the Court also finds that the prudential mootness doctrine supports granting summary judgment as to the claim. This doctrine has “particular applicability in cases, such as this one, where the relief sought is an injunction against the government.” S. Utah Wilderness All., 110 F.3d at 727. The “central inquiry” is whether “circumstances [have] changed since the beginning of litigation that forestall any occasion for meaningful relief.” Id. The Court finds that to be the situation here. Plaintiff is no longer in the Control Unit, and has not been there for some time. He is receiving hygiene items, and there is no reason to expect that will cease. Any relief the Court provides will have no impact on Plaintiff now that he is a general population inmate.
D. Rule 56(d) Request for Discovery
Finally, to the extent Plaintiff requests discovery pursuant to Fed.R.Civ.P. 56(d) before the Court rules on the Motion [#86], it is recommended that this request be denied. Plaintiff asserts in that regard that Defendants are being “evasive in Plaintiff's discovery requests, which [is] hindering Plaintiff's ability to prosecute the case.” Response [#94] at 2. Specifically, Plaintiff avers that Defendants “are withholding documents that will provide the intent of the denial of hygiene -the foundation of this civil action.” Id. at 2-3. However, the intent of Defendants regarding any denial of hygiene is not relevant to, and does not impact, the mootness claim, and is thus not necessary to resolution of the Motion [#86]. Regardless of any intent on the part of Defendants to withhold hygiene to inmates in the Control Unit or the SHU, Plaintiff is no longer housed in such units and his claim is moot as to that issue.
Further, to the extent Plaintiff asserts that discovery “will uncover the plotting and planning by the Defendants, involving the retaliation against the Plaintiff for seeking redress for the discontinuation of hygiene items[,]” (Response ]#94] at 6), the retaliation claim has been dismissed and this discovery is thus no longer relevant to the case. Finally, the Court notes that the request for discovery was not made in Plaintiff's Declaration that is part of the Response [#96], and thus does not comply with the requirements of Rule 56(d) (stating that the nonmovant must “show by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition”).
IV. Conclusion
Based upon the foregoing, IT IS HEREBY RECOMMENDED that the Motion for Summary Judgment [#86] be GRANTED, and that judgment enter in favor of Defendants and against Plaintiff. .
IT IS HEREBY ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).