Opinion
CIVIL ACTION NO.: 2:18-cv-61
12-17-2018
TONY WELLS, Petitioner, v. D. EDGE, Respondent.
ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Tony Wells ("Wells"), who is housed at the Federal Correctional Institution-Low in Jesup, Georgia, filed a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus. Doc. 1. Respondent filed a Motion to Dismiss. Doc. 9. For the following reasons, I RECOMMEND the Court GRANT Respondent's unopposed Motion to Dismiss, DISMISS as moot Wells' Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Wells in forma pauperis status on appeal.
The Court directed Wells to respond to the Motion to Dismiss and advised him the Court would grant the Motion as unopposed if he failed to respond. Doc. 10. Wells failed to respond. --------
BACKGROUND
Wells filed his Petition on May 16, 2018. Doc. 1. In his Petition, Wells contends he received an erroneous disciplinary finding on November 14, 2017, which resulted in the loss of twenty-seven (27) days' good-conduct time. Id. at 1, 9. Wells requests the Court order the Bureau of Prisons ("BOP") to expunge the incident report and restore the lost good-conduct time. Id. at 9. After Wells paid the requisite filing fee, this Court directed service of Wells' Petition upon Respondent on June 26, 2018. Doc. 4. Respondent filed a Motion to Dismiss, claiming the Court should dismiss as moot Wells' Petition because the November 14, 2017 disciplinary finding has been expunged, and Wells' good-conduct time has been restored. Doc. 9.
DISCUSSION
I. Whether Wells' Petition is Moot
Article III of the Constitution "extends the jurisdiction of federal courts to only 'Cases' and 'Controversies.'" Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This "case-or-controversy restriction imposes" what is "generally referred to as 'justiciability' limitations." Id. There are "three strands of justiciability doctrine—standing, ripeness, and mootness—that go to the heart of the Article III case or controversy requirement." Harrell v. The Fla. Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (internal quotation marks and alterations omitted). Regarding the mootness strand, the United States Supreme Court has made clear that "a federal court has 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.'" Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal citation omitted). Accordingly, "[a]n issue is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief." Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted). Questions of justiciability are not answered "simply by looking to the state of affairs at the time the suit was filed. Rather, the Supreme Court has made clear that the controversy 'must be extant at all stages of review, not merely at the time the complaint is filed.'" Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189-90 (11th Cir. 2011) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).
The BOP expunged the November 14, 2017 incident report and restored twenty-seven (27) days of lost good-conduct time. Doc. 9-1 at 3. As Wells only requests the expungement of the disciplinary report and reinstatement of twenty-seven (27) days of lost good-conduct time, there is no longer a "live controversy" over which the Court can give meaningful relief. Friends of Everglades, 570 F.3d at 1216. Accordingly, the Court should GRANT Respondent's unopposed Motion to Dismiss and DISMISS as moot Wells' Petition for Writ of Habeas Corpus. II. Leave to Appeal in Forma Pauperis
The Court should also deny Wells leave to appeal in forma pauperis. Though Wells has, of course, not yet filed a notice of appeal, it would be appropriate to address that issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not taken in good faith "before or after the notice of appeal is filed").
An appeal cannot be taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous and not brought in good faith if it is "without arguable merit either in law or fact." Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Wells' Petition and Respondent's unopposed Motion to Dismiss, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY Wells in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court GRANT Respondent's unopposed Motion to Dismiss, DISMISS as moot Wells' Petition, and DIRECT the Clerk of Court to CLOSE this case and to enter the appropriate judgment of dismissal. I further RECOMMEND the Court DENY Wells leave to proceed in forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. Any objections asserting that the undersigned failed to address any contention raised in the pleading must also be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions herein. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be served upon all other parties to the action. Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge will make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made herein. Objections not meeting the specificity requirement set out above will not be considered by the District Judge.
The Court DIRECTS the Clerk of Court to serve a copy of this Report and Recommendation upon Wells and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 17th day of December, 2018.
/s/_________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA