Mcalpine v. Thompson, 96-6124

• Decision Date: 12 August 1999
• Docket Number: No. 96-6124,96-6124
• Citation: 1999 WL 606708,187 F.3d 1213
• Parties: (10th Cir. 1999) JOHNNIE LOUIS McALPINE, Plaintiff-Appellant, v. RON THOMPSON, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1213

187 F.3d 1213 (10th Cir. 1999)

JOHNNIE LOUIS McALPINE, Plaintiff-Appellant, v. RON THOMPSON, Defendant-Appellee.

No. 96-6124

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 12, 1999

Appeal from the United States District Court for the Western District of Oklahoma. D.C. No. CIV-94-1406-L

John J. Carwile (Ronald W. Little with him on the briefs), Doerner, Saunders, Daniel and Anderson Tulsa, Oklahoma, for Plaintiff-Appellant.

Kay Sewell, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Defendant-Appellee.

Before EBEL, BRISCOE, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

In August 1994, while incarcerated in a federal facility, Johnnie Louis McAlpine ("McAlpine"), a member of the Native American Church, brought a pro se action in federal court under the First Amendment and the Religious Freedom Restoration Act of 1993 ("RFRA"), seeking to compel Warden Ron Thompson ("Thompson" or "Warden") to provide him with peyote and other "necessary items" to conduct Native American Church ceremonies. The district court reached the merits of McAlpine's claims and granted the Warden's motion to dismiss, or in the alternative, for summary judgment. McAlpine appeals. We hold that McAlpine's subsequent release from federal prison on supervised release moots his claims, thereby depriving us of jurisdiction. Accordingly, we VACATE the district court's order and REMAND with instructions to DISMISS.

BACKGROUND

According to the pleadings, McAlpine is a restricted Osage Indian and a member of the Native American Church. At the time he filed this action, on August 24, 1994, in the United States District Court for the Western District of Oklahoma, he was incarcerated at the Federal Prison Camp in El Reno, Oklahoma ("El Reno"), serving a forty-six month sentence for mail fraud. McAlpine's petition for mandamus, the denial of which is the subject of the present appeal, alleged that Warden Thompson's refusal to provide peyote for Native American Church services violated his rights under the First Amendment and the RFRA, and prayed for the following prospective mandamus relief: "1) . . . the Court to order Warden Thompson to provide peyote for the Native American Church Ceremonies. 2) . . . plaintiff requests that the Court orders the Warden to provide the necessary items needed for the Native American Churches [sic] evening through noon services once a month (to include meals, peyote, tipi, and outside, visiting, roadmen, firemen and singers)."

The magistrate judge considered the merits of McAlpine's claim and found that the Warden's denial of peyote and other ceremonial items to McAlpine did not violate the First Amendment or RFRA, and thus recommended that the district court grant Thompson's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. On March 25, 1996, the district court adopted the magistrate's findings and recommendation, and granted Thompson's motion. McAlpine filed his timely notice of appeal on April 1, 1996.

Thereafter, on November 1, 1996, McAlpine completed his term of incarceration and was released from El Reno Prison Camp. Arguing that McAlpine sought relief regarding only the conditions of his confinement, and his ability to practice his religion while incarcerated, the Warden now claims that McAlpine's claims have been mooted.¹ We agree. Accordingly, we VACATE the district court's order and REMAND to the district court with instructions to DISMISS McAlpine's petition as moot.

DISCUSSION

Mootness

Before reaching the merits of McAlpine's First Amendment and RFRA claims, we must consider the jurisdictional question of mootness. Warden Thompson argues that McAlpine's claims are moot because the only relief sought by McAlpine "deal[s] with desires during his incarceration," and he is no longer incarcerated. McAlpine responds that because he "remains on supervised release (parole) through November 1, 1999" and "he is subject to revocation of his parole and reincarceration," the acts he complains of are capable of repetition, yet evading review. Thus, the issue before us is whether the claim of a prison inmate seeking prospective mandamus relief solely related to conditions of confinement becomes mooted by that inmate's subsequent release on parole or supervised release. We answer that question in the affirmative.

Upon previous consideration of this question, this court has issued potentially conflicting decisions. Compare White v. State of Colo., 82 F.3d 364, 366 (10th Cir. 1996) (claims for prospective injunctive relief mooted by inmate-plaintiff's release on parole because possibility of parole revocation "is too speculative" to come under the "capable of repetition, yet evading review" exception), with McKinney v. Maynard, 952 F.2d 350, 351 (10th Cir. 1991) (inmate-plaintiff's claims for injunctive relief to allow him to engage in certain religious practices in prison not mooted by his transfer to pre-parole status because "[e]ven as a parolee, circumstances may result in Mr. McKinney's reinstitutionalization. Thus, the acts of which he now complains are subject to reoccurrence, and the issues he raises are not moot."); cf. Green v. Bronson, 108 F.3d 1296 (10th Cir. 1997) (inmate-plaintiff's claims for injunctive relief mooted by his release from prison where there was no indication that plaintiff was still on parole or supervised release following release). Today, we hold that when an inmate's claim for prospective injunctive relief regarding conditions of confinement becomes moot due to the inmate-plaintiff's release from confinement, the inmate's parole or supervised release status does not, absent some exceptional showing, bring that claim under the narrow "capable of repetition, yet evading review" exception to the mootness doctrine.

While our holding comports with the teachings of Green and White, we are aware that McKinney, which involved a somewhat similar factual scenario to the present case, supports a different result. In McKinney, the appellant was a Sioux Indian seeking damages as well as injunctive relief to (1) "prohibit Oklahoma prison authorities from enforcing a prison grooming code against him," and (2) "require prison officials to return his medicine bag[] and to permit the construction of a sweat lodge at the correctional facility." 952 F.2d at 351. The state claimed that McKinney's case was mooted by his release from prison and his status as a pre-parolee ². This court disagreed, holding that McKinney's injunctive claims as well as his damages claims survived his change in status from prisoner to pre-parolee, because "circumstances may result in Mr. McKinney's reinstitutionalization. Thus, the acts of which he now complains are subject to reoccurrence, and the issues he raises are not moot." Id. at 351.

We perceive some tension between McKinney and our subsequent cases of Green and White, and to the extent that there is a conflict, the en banc court now overrules McKinney and adopts the rule articulated in Green and White.³

A number of factors support departure from McKinney. First, under well-established Supreme Court and Tenth Circuit law, when a favorable decision will not afford plaintiff relief, and plaintiff's case is not capable of repetition yet evading review, we have no jurisdiction under Article III. The Tenth Circuit has said that "Article III's requirement that federal courts adjudicate only cases and controversies necessitates that courts decline to exercise jurisdiction where the award of any requested relief would be moot -- i.e., where the controversy is no longer live and ongoing." Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994). A claim will be deemed moot unless a "'proper judicial resolution'" settles "'some dispute which affects the behavior of the defendant toward the plaintiff.'" Id. (quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)). Cox continued: "[T]his court has explained that a 'plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured [by the defendant] in the future.'" Id. at 1349 (quoting Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991)) (alteration in original); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) ("[T]he capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.").

As the Supreme Court explained in O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974), "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." The O'Shea Court held that the chance that individuals would violate criminal statutes and be tried for their offenses was not "sufficiently real and immediate to show an existing controversy." Id. at 496. The Court concluded that it is to be assumed that "[plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction." Id. at 497.

Moreover, the narrow capable-of-repetition exception to the mootness doctrine applies only "where the following two circumstances [are] simultaneously present: '(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.'" Spencer v. Kemna, 118 S.Ct. 978, 988 (1998) (alterations in original) (quotations and citations omitted). In a mootness issue similar to the one presented here, the Spencer Court held:

Petitioner's case satisfies neither of these conditions. He has not shown (and we doubt that he could) that the time between parole revocation and expiration of sentence is always so short as to evade...