Jordan v. Sosa, No. 08–1326.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BRISCOE, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges.
• Citation: 654 F.3d 1012
• Parties: Mark JORDAN, Plaintiff–Appellant,v.Mary H. SOSA, ADX Florence Acting Inmate Systems Manager; Robert A. Hood, ADX Florence Warden; (First Name Unknown) Tucker, FCI Englewood Inmates Systems Officer; Angela Shenk, FCI Englewood Inmate Systems Manager; J.L. Norwood, USP Victorville Warden, in their individual and official capacities; W.A. Sherrod, FCI Englewood Warden, in his official capacity, Defendants–Appellees.
• Docket Number: No. 08–1326.
• Decision Date: 20 July 2011

654 F.3d 1012

Mark JORDAN, Plaintiff–Appellant,
v.
Mary H. SOSA, ADX Florence Acting Inmate Systems Manager; Robert A. Hood, ADX Florence Warden; (First Name Unknown) Tucker, FCI Englewood Inmates Systems Officer; Angela Shenk, FCI Englewood Inmate Systems Manager; J.L. Norwood, USP Victorville Warden, in their individual and official capacities; W.A. Sherrod, FCI Englewood Warden, in his official capacity, Defendants–Appellees.

No. 08–1326.

United States Court of Appeals, Tenth Circuit.

July 20, 2011.

[654 F.3d 1015]

Michelle M. Berge, Reilly Pozner LLP, Denver, CO, for Plaintiff–Appellant.Michael C. Johnson, Assistant United States Attorney (David M. Gaouette, Acting United States Attorney, with him on the brief), Denver, CO, for Defendants–Appellants.Before BRISCOE, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

Plaintiff–Appellant Mark Jordan was incarcerated in solitary confinement at the administrative maximum security facility in Florence, Colorado (“ADX”), when he commenced this action. Mr. Jordan was convicted of stabbing a fellow inmate while incarcerated in federal prison for several offenses, including three armed bank robberies. He brought a civil-rights action for a declaratory judgment and injunctive relief against specifically named officials of the Federal Bureau of Prisons (“BOP”), pursuant to 28 U.S.C. § 1331, to challenge the constitutionality of a statutory and regulatory ban on the use of federal funds to distribute to federal prisoners commercially published materials that are sexually explicit or feature nudity. Following a two-day bench trial, the district court held that the ban did not violate the First or Fifth Amendments to the United States

[654 F.3d 1016]

Constitution. Mr. Jordan now appeals the district court's rejection of his First Amendment claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that Mr. Jordan's subsequent transfer to other prison facilities has rendered his claims moot.BACKGROUND

The BOP has regulated the distribution of sexually explicit publications to federal prisoners for over thirty years. In 1979, the BOP promulgated a regulation granting wardens the discretion to reject incoming publications. ¹ Control, Custody, Care, Treatment, and Instruction of Inmates, 44 Fed.Reg. 38,254, 38,260 (June 29, 1979) (codified at 28 C.F.R. § 540.71(b)). As codified, this regulation authorizes wardens to reject “sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity.” ² 28 C.F.R. § 540.71(b)(7). Although this regulation vests wardens with considerable discretion to reject publications, it forbids them from rejecting a publication “solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant.” Id. § 540.71(b). Wardens also may not “establish an excluded list of publications,” meaning that they must review materials on an issue-by-issue basis. Id. § 540.71(c). The Supreme Court upheld the facial constitutionality of this regulation in Thornburgh v. Abbott, 490 U.S. 401, 419, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

In 1996, Congress altered the regulatory landscape with the enactment of the Omnibus Consolidated Appropriations Act of 1997, Pub.L. No. 104–208, 110 Stat. 3009 (1996) (“Act”). In Section 614 of the Act, known as the Ensign Amendment, Congress exercised its power of the purse to ratchet up the restrictions on incoming publications at federal prisons. See § 614, 110 Stat. at 3009–66. The Ensign Amendment, which is codified at 28 U.S.C. § 530C(b)(6), now provides that “no [BOP] funds may be used to distribute or make available to a prisoner any commercially published information or material that is sexually explicit or features nudity.” ³ 28 U.S.C. § 530C(b)(6)(D).

In response to the Ensign Amendment, the BOP promulgated an implementing

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regulation that narrows the scope of the statute by defining key statutory terms.⁴ See 28 C.F.R. § 540.72. Under this regulation, “nudity” means “a pictorial depiction where genitalia or female breasts are exposed.” Id. § 540.72(b)(2). “Features” means that “the publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues.” Id. § 540.72(b)(3). The definition of “features” carves out an exclusion, which is not present in the Ensign Amendment, for “publications containing nudity illustrative of medical, educational, or anthropological content.” Id. “Sexually explicit” means “a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation.” Id. § 540.72(b)(4). Although the Ensign Amendment covers all material that is sexually explicit or features nudity, whether pictorial or text, this regulation narrowly interprets the Ensign Amendment to prohibit only pictorial depictions. See id.

The BOP has also adopted a program statement to establish procedures for federal prisons to effectuate the Ensign Amendment and its implementing regulation. See Aplt.App., Vol. III, at 661–69 (BOP Program Statement 5266.10, dated Jan. 10, 2003). In Program Statement 5266.10, which was in effect at all times relevant to this action, Section 7 elaborates on the restrictions in the Ensign Amendment and in 28 C.F.R. § 540.72.⁵ For example, the BOP explains that it may distribute certain periodicals to prisoners—such as National Geographic, sports-magazine swimsuit issues, or lingerie catalogues—because they contain nudity without featuring nudity. The BOP also indicates that written text “does not qualify a publication as sexually explicit.” Aplt.App., Vol. III, at 669. Furthermore, the BOP notes that publications may be banned under 28 C.F.R. § 540.71 and Program Statement 5266.10 § 6(b)(7) even if they are not sexually explicit and do not feature nudity. Id.

BOP officials relied on § 540.72(b) and the program statement to reject four commercial publications addressed to Mr. Jordan. First, on February 26, 2003, BOP officials rejected a book entitled Divas and Lovers—The Erotic Art of Studio Manassé, which is a study of portraits from “a golden age of cinema and cabaret in Vienna of the 1920s and 1930s,” Aplt.App., Vol. III, at 471, because every page is sexually explicit or features nudity. Second, on April 15, 2004, BOP officials rejected the May/June 2004 issue of JUXTAPOZ Art & Culture Magazine because eleven pages contain images from an art show in Detroit that are sexually explicit or feature nudity. Third, on May 21, 2004, BOP officials rejected the July/August 2004 issue of JUXTAPOZ Art & Culture Magazine because one page contains a re-print of an oil painting of a nude woman. Fourth, on August 15, 2004, BOP officials rejected a book entitled Kama Sutra because depictions in the book are sexually explicit and feature nudity. ⁶ Mr. Jordan exhausted his administrative

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remedies in appealing the rejection of these publications.

On July 12, 2005, Mr. Jordan commenced this civil-rights action in the United States District Court for the District of Colorado against the Warden and the Inmate System Manager of the ADX, along with certain other BOP officials assigned to penal institutions in Colorado and California in their individual and official capacities.⁷ Significantly, however, Mr. Jordan did not name as defendants either the Director of the BOP or the BOP itself. By way of relief, Mr. Jordan sought a declaratory judgment, an injunction, and damages, claiming that (1) the Ensign Amendment violated the First Amendment, facially and as applied to him; (2) the Ensign Amendment violated the Fifth Amendment; and (3) the implementing regulation, 28 C.F.R. § 540.72(a), violated the First Amendment, facially and as applied to him.⁸ In a pre-trial order, the district court dismissed Mr. Jordan's claims against the officials in their individual capacities along with his request for damages.

A bench trial was held on July 7 and 8, 2008. On July 11, 2008, the district court issued Findings of Fact and Conclusions of Law, upholding the constitutionality of the Ensign Amendment and its implementing regulation under the First and Fifth Amendments.⁹ Mr. Jordan now appeals the district court's order with respect to the First Amendment.

DISCUSSION

Mr. Jordan challenges the constitutionality of the Ensign Amendment and its implementing regulation. As an initial matter, we hold that Mr. Jordan has standing to challenge the Ensign Amendment only to the extent that it is embodied in the narrowly drafted implementing regulation. Additionally, because Mr. Jordan was transferred from the ADX to other BOP facilities while his appeal was pending, we must address whether any portion of this case is moot. We conclude that Mr. Jordan's First Amendment facial and as-applied challenges are moot; thus, we need not consider whether the Ensign Amendment—insofar as it is implemented through 28 C.F.R. § 540.72—is unconstitutional.

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I. Standing

Article III of the United States Constitution limits the jurisdiction of federal courts to the adjudication of “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. Although the parties and the district court neglected to address whether Mr. Jordan had standing to challenge the constitutionality of the Ensign Amendment, we raise the issue sua sponte “[b]ecause it involves the court's power to entertain the suit.” Green v. Haskell Cnty. Bd. of Comm'rs, 568 F.3d 784, 792 (10th Cir.2009) (quoting O'Connor v. Washburn Univ., 416 F.3d 1216, 1222 (10th Cir.2005)) (internal quotation marks omitted), cert. denied, ––– U.S. ––––, 130 S.Ct. 1687, 176 L.Ed.2d 180 (2010). “Standing is determined as of the time the action is brought.” Utah Ass'n of Counties v. Bush, 455 F.3d 1094, 1099 (10th...