Opinion
CIV-20-226-G
11-30-2023
JAMES EZELL, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner first appearing pro se and then with appointed counsel, filed an amended petition for habeas corpus relief under 28 U.S.C. § 2241 challenging a disciplinary proceeding that he claims deprived him of his due process rights.Doc. 16, at 2-5.Petitioner alleges Respondent provided him no notice and forged a guilty plea on his behalf-the guilty plea denied him a hearing and waived his right to appeal the disciplinary action. Respondent has moved to dismiss the amended petition arguing there remains no case or controversy for this Court to adjudicate. Doc. 60. Petitioner, through counsel, has responded in opposition arguing he deserves an evidentiary hearing and an award of litigation costs associated with this action. Doc. 64.After review, the undersigned recommends the Court grant Respondent's motion to dismiss.
United States District Judge Charles Goodwin has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
The Court appointed the Federal Public Defender as counsel for Petitioner on August 30, 2022. Doc. 50.
I. Background.
In 2018, prison officials at the James Crabtree Correctional Center charged Petitioner with an “X-13” offense for “throwing bodily fluids on staff.” Doc. 60, Att. 1. According to prison officials, Petitioner pleaded guilty to the charge and signed an offense report. See Ezell v. Crow, 2022 WL 3108803, at *1 (10th Cir. Aug. 4, 2022). Prison officials punished Petitioner for the offense with “a $20.00 fine, canteen restriction of 180 days[,] and [a] loss of 30 earned credits [] that resulted in transfer from medium security placement to super maximum security placement.” Doc. 16, at 2.
This Court entered judgment in favor of Respondent on September 28, 2021. Docs. 37, 38. Petitioner appealed, and the Tenth Circuit Court of Appeals reversed and remanded the case for further consideration of Petitioner's alleged due process violation. Doc. 48; see also Ezell, 2022 WL 3108803, at *2.
The undersigned takes judicial notice of the electronic records of the Oklahoma Department of Corrections. See Fed.R.Evid. 201; see also United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting the court's “discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”). Petitioner is currently housed at the Great Plains Correctional Center, which is a medium-security facility. See https://okoffender.doc.ok.gov/ (last visited Nov. 15, 2023); Great Plains Correctional Center, OKLA. DEP'T OF CORR., https://oklahoma.gov/doc/facilities/great-plains-correctional-center.html (last visited Nov. 15, 2023).
Petitioner sought habeas corpus relief in this Court on March 11, 2020. Doc. 1. He filed an amended petition for writ of habeas corpus on August 17, 2020. Doc. 16.
Petitioner argues Respondent did not afford him due process in the X-13 disciplinary proceeding, contrary to Oklahoma Department of Corrections (ODOC) policy and constitutional due process requirements. Id. at 2, 4. He claims he “never received or was ever provided with [the] Offense Report” or “received notice of [the] written charges.” Id. at 2, 5. He also asserts Respondent “forged” the disciplinary disposition report that required Petitioner to initial a guilty plea form. Id. at 3. He maintains no disciplinary hearing took place and Respondent was improperly “involved in the investigation and prosecution” of the matter. Id. at 3-5. Petitioner asks for “restoration of good time [credit],” “immediate placement back at medium security and expungement of any and all misconduct received after May 3, 2018,” “a new plan . . . to ensure prison official will be held accountable of violations . . . [of] due process,” damages for civil rights violations resulting from “unconstitutional procedures,” and legal costs. Id. at 6.
On May 9, 2023, Mark Knutson, the ODOC's Director's Designee, reversed and dismissed the charge. Doc. 60, Att. 1. Mr. Knutson also ordered the update of Petitioner's Consolidated Record Card (CRC) “to reflect any changes as a result of the dismissal” and the expungement of “all copies of the offense report.” Id. Finally, Mr. Knutson ordered the adjustment and restoration of Petitioner's “earned credit level” and that “any restitution or fines imposed” in relation to the charge be refunded. Id. Petitioner's CRC reflects the expungement of the charge and the restoration of his earned credits. Doc. 60, Att. 2, at 3, 5, 7.
II. Standard of review for dismissal on mootness grounds.
“Under Article III of the Constitution [federal courts] may only adjudicate actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “A habeas corpus petition is moot when ‘it no longer present[s] a case or controversy under Article III, § 2, of the Constitution.'” Veal v. Jones, No. CIV-08-350-F, 2009 WL 365940, at *1 (W.D. Okla. Feb. 12, 2009) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a personal stake in the outcome of the lawsuit.” Spencer, 523 U.S. at 7 (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)).
This Court has “no subject matter jurisdiction over a case if it is moot.” Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1224 (10th Cir. 2009). So “mootness is a threshold inquiry.” Green v. Haskell Cnty Bd. of Comm'rs, 568 F.3d 784, 794 (10th Cir. 2009) (citing Navani v. Shahani, 496 F.3d 1121, 1127 (10th Cir. 2007)); see also Fratis v. Ortiz, 190 Fed.Appx. 686, 688 (10th Cir. 2006) (“Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” (quoting McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir.1996))).
“A case becomes moot when a [party] 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) (quoting Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983)); see also Phelps v. Hamilton, 122 F.3d 885, 891 (10th Cir.1997) (holding a court's “inability to grant effective relief renders th[e] issue moot”). And when it becomes “impossible for the court to grant any effectual relief whatever to a prevailing party, [the court] must dismiss the case, rather than issue an advisory opinion.” Fleming v. Gutierrez, 785 F.3d 442, 445 (10th Cir. 2015) (quoting Stevenson v. Blytheville Sch. Dist. No. 5, 762 F.3d 765, 768 (8th Cir.2014)).
A party can avoid dismissal under the mootness doctrine by demonstrating there are “secondary or collateral injuries [that] survive after resolution of the primary injury,” “the issue is deemed a wrong capable of repetition yet evading review,” “the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time,” or “it is a properly certified class action suit.” Riley v. INS, 310 F.3d 1253, 1256-57 (10th Cir. 2002) (quoting Chong v. Dist. Dir., INS, 264 F.3d 378, 384 (3d Cir. 2001)).
III. Petitioner has been provided a remedy for his injury and this Court can grant him no further effectual relief.
In his amended petition, Petitioner requested that the misconduct “be expunged” and that he be “returned to medium security level and restored all [good time credit] lost to him.” Doc. 16, at 4-5. He further asked that prison officials be “held accountable” and sought “damages” for the violation of his due process rights and “all legal cost as relates to [his] account debt.” Id. at 6.
Petitioner's counsel does not state in response to the motion to dismiss that Petitioner is still seeking “damages.” Instead, counsel states Petitioner deserves a hearing and to recover the costs of this action. Doc. 64, at 3, 7. Even if counsel had asserted a claim to damages, they are not available to Petitioner in this habeas corpus action. See Brunner v. Wyo. Dep't Corr., 2023 WL 2733472, at *1 (10th Cir. 2023) (rejecting petitioner's assertion that his habeas case remained “live because he should receive damages” and explaining that “a favorable decision here could not yield that relief, for damages are not an available remedy in habeas” (citing Preiser v. Rodriguez, 411 U.S. 475, 494 (1973)).
Respondent represents to the Court that Petitioner's misconduct has been expunged from his record, his good time credits have been restored, and his fine has been ordered to be refunded. Doc. 60, at 3. Petitioner admits he has received this relief. Doc. 64, at 3. And he is presently residing in a medium security facility. See supra § I.n.5.
Petitioner still desires a hearing to “establish on the record” that he was wronged. Doc. 64, at 3. But the result of any such hearing would be advisory only because, even if Petitioner prevailed, this Court could not provide him any further relief. See Fleming, 785 F.3d at 445 (explaining that when it becomes “impossible for the court to grant any effectual relief whatever to a prevailing party, [the court] must dismiss the case, rather than issue an advisory opinion”); see also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (“It has long been settled 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.'” (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Additionally, Petitioner cannot recover costs in a habeas corpus action. See Crosby v. Cillio, 2023 WL 4446351, at *2 (10th Cir. 2023) (“We agree with the district court that [petitioner] is not entitled to fees and costs related to his § 2241 petitions. If [petitioner] is seeking reimbursement incurred in filing his two habeas petitions, he can't do so; habeas petitioners can't recover fees and costs associated with litigation.” (citing Ewing v. Rogers, 826 F.2d 967, 970-71 (10th Cir. 1987))).
Petitioner has received all the relief this Court can grant him in this habeas action. The matter is therefore moot because Petitioner no longer suffers a redressable injury. See, e.g., Brunner, 2023 WL 2733472, at *1 (“[Petitioner] sought release, and he has been released. For that reason, he no longer suffers a redressable injury.”).
IV. Petitioner argues he meets exceptions to the mootness doctrine.
In his response to the motion to dismiss, Petitioner argues the Court should not deem his action moot because he should receive “an evidentiary hearing to establish on the record that the ODOC, through its corrections officer, in fact did not provide him with the due process to which he was entitled.” Doc. 64, at 3. He also asserts he has suffered retaliation and that his injury “remains redressable through the ordering of a return of his copy costs associated with the litigation he has undergone.” Id. at 7. The Court should reject these arguments.
Invoking the voluntary cessation exception to the mootness doctrine, Petitioner asserts Respondent's dismissal of his misconduct-only after protracted litigation and receipt of an unfavorable report from Petitioner's hand-writing expert-is suspect and was designed to “avoid an evidentiary hearing” to prove that a “corrections officer acted fraudulently.” Id. at 5. Generally, “[a] plaintiff's claim is not rendered moot by the voluntary cessation of a challenged practice which the defendant is free to resume at any time.” Ind v. Colo. Dep't of Corr., 801 F.3d 1209, 1214 (10th Cir. 2015). Here, though, as Respondent notes in his motion, “this case does not involve any ongoing course of conduct[] and does not implicate any discretionary policy or practice that may be resumed.” Doc. 60, at 6. Petitioner challenges a discrete act by Respondent and, if any due process violation occurred, the effects of that violation have been “completely and irrevocably eradicated” by Respondent's reversal and expungement of the misconduct from Petitioner's record. Ind, 801 F.3d at 1214 (stating that voluntary cessation moots litigation when “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur,” and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation” (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir. 2010))). So “the voluntary cessation exception does not rescue [Petitioner's] claim from mootness.” Id. at 1215; see also Shawnee Tribe v. United States, 423 F.3d 1204, 1213 n.8 (10th Cir. 2005) (noting “mootness exceptions exist only for likely recurrences-such as where a defendant voluntarily ceases the challenged action but is likely to return to earlier practices”).
Petitioner also argues he has suffered collateral consequences from the disciplinary conviction and his continued litigation because Respondent has designated him as part of a “Security Threat Group,” “which affects housing.” Doc. 64, at 6 (citing Doc. 26, at 12 (Petitioner's affidavit)). Petitioner “believes there is no reason for this designation but retaliation.” Id.
“A presumption of collateral consequences does not exist in prison disciplinary proceedings.” Veal, 2009 WL 365940, at *2 n.4; see also Fratis, 190 Fed.Appx. at 688 (“The Supreme Court . . . conclude[d] that collateral consequences must be proved, not presumed.” (citing Spencer, 523 U.S. at 14)). And, on this issue, Petitioner bears the burden of proof. Fratis, 190 Fed.Appx. at 688; Veal, 2009 WL 365940, at *2.
To prove collateral consequences, Petitioner cites to his own affidavit where he states that he might be threatened with “S.T.G.” and prevented from transferring to medium security because he challenged a disciplinary procedure. Doc. 26, at 12. But, as the Court noted above, Petitioner is presently housed in a medium security facility. So any consequences are either nonexistent or “vague and conclusory” and therefore “insufficient to establish collateral consequences.” Fratis, 190 Fed.Appx. at 688; see also Spencer, 523 U.S. at 18 (“We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong.”).
Finally, Petitioner argues that he retains a concrete interest in the outcome of his case because he has “suffered copy costs and filing fees to prove it.” Doc. 64, at 7. But habeas petitioners cannot recover fees and costs associated with litigation, and Petitioner is not entitled to costs or fees as a prevailing party because the case is now moot. See Crosby, 2023 WL 4446351, at *2 (“[Petitioner] also isn't entitled to costs or fees as a prevailing party because the district court dismissed his § 2241 claims as moot.”).
V. Conclusion.
Petitioner's habeas petition is moot. He has no injury for this Court to redress. The undersigned therefore recommends granting Respondent's motion to dismiss.
VI. Recommendation and notice of right to object.
For these reasons, the undersigned recommends that the Court grant Respondent's motion, Doc. 60, and dismiss the petition.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before December 21, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.