Cheri Rau v. Johnny Motes

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 15, 2019
• Docket: 18-13006
• Status: Unpublished

Opinion

Case: 18-13006 Date Filed: 05/15/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13006 Non-Argument Calendar ________________________

D.C. Docket No. 4:18-cv-00154-HLM

CHERI RAU,

Plaintiff-Appellant,

versus

JOHNNY MOATS, Sheriff,

Defendant-Appellee,

POLK COUNTY SHERIFF'S OFFICE, et al,

Defendants.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(May 15, 2019)

Before WILSON, ROSENBAUM, and HULL, Circuit Judges.

PER CURIAM: Case: 18-13006 Date Filed: 05/15/2019 Page: 2 of 10

Cheri Rau appeals pro se from the denial of her motions for preliminary-

injunctive relief seeking to enjoin the Sheriff of Polk County, Georgia, Johnny

Moats, from enforcing certain policies at the Polk County Jail that severely restrict

the type of mail inmates can send or receive. After careful review, we dismiss in

part and affirm in part.

I.

Rau filed a lawsuit under 42 U.S.C. § 1983 to challenge correspondence

policies in force at the Polk County Jail. According to Rau, the jail’s policies prevent

inmates from sending or receiving any mail, other than legal correspondence or

paperback books sent directly by an authorized vendor, in a form other than a

postcard. Rau contends that this “postcard-only” policy violates her First

Amendment rights as a “free-world” person who wants to correspond with and

minister to detainees.

When this lawsuit began, Rau’s son was a pretrial detainee at the jail, and Rau,

a practicing Christian, wished to communicate with and minister to him in ways that

the jail either limited or prevented altogether. According to Rau, she sent her son

two books that initially were impounded as being too large, though the jail eventually

delivered the books after she complained. She also ordered her son a subscription

to the magazine Prison Legal News, which he is prevented from receiving.

Additionally, Rau indicated that the postcard-only policy infringed her

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communications with “other detainee[s],” though she offered no specifics in that

regard.

After filing her complaint, Rau filed three motions for preliminary injunctions

seeking to enjoin Sheriff Moats from enforcing the postcard-only policy. The

district court denied these motions, concluding that Rau fell short of the standard for

issuance of a preliminary injunction. 1 The court found that she had not shown “any

concrete threat of irreparable or imminent harm” or a likelihood of success on the

merits. Rau now appeals the denial of these motions. Although Rau’s lawsuit

remains pending before the district court, we have jurisdiction to immediately review

the denial of injunctive relief under 28 U.S.C. § 1292(a)(1).

II.

Soon after Rau filed her appeal, Sheriff Moats filed a notice with the district

court stating that Rau’s son had been transferred from the jail on June 28, 2018, and

that it was “not expected that [her son] will return to the [jail] for any reason.” In

light of her son’s release from the jail’s custody, we asked the parties to address the

question of whether Rau’s case was now moot.

1 The district court denied Rau’s latter two motions as moot because they appeared to request relief duplicative of the initial motion. Rau maintains this was error because each of the motions sought different relief. Even if that’s right, however, we read the court’s order as addressing all of her requests for injunctive relief, so any error was harmless. 3 Case: 18-13006 Date Filed: 05/15/2019 Page: 4 of 10

Sheriff Moats responded that it was moot, arguing that this Court could not

grant effective relief since her son, the only detainee identified in the complaint, was

no longer subject to the jail’s policies. In reply, Rau argued that her case was not

moot because her claims concerned other inmates in addition to her son and, in her

view, there was a possibility her son might return to the jail. The mootness issue

was carried with the case and is now before this panel for resolution.

Article III of the Constitution requires that we adjudicate only “cases” and

“controversies.” Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, Ga., 868

F.3d 1248, 1255 (11th Cir. 2017) (en banc). This rule, which continues through all

phases of the case, requires that “a litigant must have suffered, or be threatened with,

an actual injury traceable to the defendant and likely to be redressed by a favorable

judicial decision.” Id. at 1264 (emphasis and quotation marks omitted). “Therefore,

a previously justiciable case is moot when the requested relief, if granted, would no

longer have any practical effect on the rights or obligations of the litigants.” Id.

(footnotes omitted); Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (“If

events that occur subsequent to the filing of a lawsuit or an appeal deprive the court

of the ability to give the plaintiff or appellant meaningful relief, then the case is moot

and must be dismissed.”).

As noted above, the complaint alleged infringement of Rau’s First

Amendment rights to communicate with both her son and other detainees. We

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conclude that her case is moot with respect to her son but that it may not be moot

with respect to other detainees.

A.

Rau’s claims are moot to the extent they are based solely on her attempts or

intent to correspond with her son, who is no longer in the jail’s custody. The general

rule is that a detainee’s transfer or release from a jail moots that detainee’s claims

for injunctive relief. McKinnon v. Talladega Cty., Ala., 745 F.2d 1360, 1363 (11th

Cir. 1984). The same holds true here even though Rau was not the person detained.

Just as her son is no longer subject to the jail’s policies, Rau is no longer constrained

by those same policies when communicating with him. Because Rau’s son is no

longer affected by the jail policies, neither we nor the district court could grant relief

that would have any practical effect on Rau’s ability to communicate with her son.

Accordingly, her claims, as they relate specifically to her son, are moot.

Rau invokes an exception to mootness for cases where “there is a reasonable

basis the challenged conduct will recur.” Doe v. Wooten, 747 F.3d 1317, 1322–23

(11th Cir. 2014). “When a defendant voluntarily ceases the activity that forms the

basis of the lawsuit, a federal court does not necessarily lose jurisdiction.” Cook v.

Bennett, 792 F.3d 1294, 1299 (11th Cir. 2015). Rather, the party asserting mootness

must demonstrate “unambiguous termination” of the challenged conduct. Wooten,

747 F.3d at 1322. In other words, we will not dismiss a case as moot unless it is

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“absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Cook, 792 F.3d at 1300 (quotation marks omitted).

In Wooten, for example, we held that a prisoner’s transfer to another

institution did not moot his claims for injunctive relief—injunctions preventing his

placement in or transfer to a particular high-security Bureau of Prisons (“BOP”)

facility and requiring placement in a lower-security facility—because the defendant

had failed to show that the plaintiff would not be returned to a high-security BOP

facility. See 747 F.3d 1323–25. We noted that the prisoner’s transfer was not

necessarily permanent and, in fact, that Wooten had been “transferred repeatedly

over a period of years,” which supported a finding of likely recurrence. Id. at 1324–

25. Further bolstering that conclusion was the fact that the defendant, after years of

inaction, changed its position on transferring the plaintiff just days before the trial

was set to begin and without substantial deliberation. Id. at 1325–26.

Here, the record reveals no “reasonable basis” to conclude that Rau’s son will

return to the jail. See id. at 1323. It appears that Rau’s son was held temporarily at

the jail before being transferred to the Georgia Diagnostic and Classification Prison,

and then from there to federal custody. Even if Rau’s son returned to state custody,

it strikes us as very unlikely he would find his way back to the jail. And a “remote

possibility that an event might recur is not enough to overcome mootness.” Al

Najjar, 273 F.3d at 1336. Accordingly, we conclude that Rau’s case as it relates to

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her son is now moot and must be dismissed. See id. (“[D]ismissal is required because

mootness is jurisdictional.”).

B.

Nevertheless, we agree with Rau that her case is not moot to the extent it is

based on infringement of her right to communicate with other detainees at the jail.

Discounting this theory, Sheriff Moats argues that Rau would not have brought this

case but for her son’s detention at the jail. That may or may not be true, but the

argument confuses Rau’s motivation with mootness. The question before us is not

whether Rau would have filed this lawsuit had her son not been detained at the jail,

but rather whether meaningful relief can still be granted. We conclude that there is

at least a possibility that it can.

The complaint repeatedly asserts that the jail’s postcard-only policy affects

her ability to communicate with and minister to “other detainee[s].” While the

complaint does not identify any other detainee or elaborate on Rau’s

communications with them, we must liberally construe Rau’s allegations, see Evans

v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017) (pro se pleadings are

liberally construed), and she has provided additional details regarding her

communications with other inmates in her response to this Court’s question

regarding mootness. At the very least, then, Rau’s response suggests that she may

be able to establish that the jail’s postcard-only policy works ongoing harm to her

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communications with these other detainees. 2 Thus, notwithstanding other potential

obstacles Rau may face, we will not dismiss her case as moot at this time because

there is a possibility that effective relief could still be granted.

III.

Turning to the substance of the district court’s decision, a court may grant a

preliminary injunction only if the movant makes four showings: (1) the movant has

a substantial likelihood of success on the merits of the underlying case; (2) the

movant will suffer irreparable harm without an injunction; (3) the harm suffered by

the movant if no injunction issued would exceed the harm suffered by the opposing

party if it did; and (4) the injunction would not disserve the public interest. Keeton

v. Anderson-Wiley, 664 F.3d 865, 868 (11th Cir. 2011). “In this Circuit, [a]

preliminary injunction is an extraordinary and drastic remedy not to be granted

unless the movant clearly established the burden of persuasion as to each of the four

prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)

2 For that reason, it is unnecessary to reach the issue of third-party standing and whether Rau may bring claims on behalf of these other detainees. In light of her apparent past communications with other detainees at the jail, Rau may be able to establish personal standing to challenge the postcard-only policy. See Procunier v. Martinez, 416 U.S. 396, 408 (1974) (“In the case of direct personal correspondence between inmates and those who have a particularized interest in communicating with them, mail censorship implicates more than the right of prisoners.”) (footnote omitted); Thornburgh v. Abbott, 490 U.S. 401, 410 n.9 (1989); Perry v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359, 1363 (11th Cir. 2011). We do not decide here that she has established standing, however, and leave that issue for the district court. 8 Case: 18-13006 Date Filed: 05/15/2019 Page: 9 of 10

(quotation marks omitted). We review a district court’s denial of a preliminary

injunction for abuse of discretion. Keeton, 664 F.3d at 868.

Based on the limited record before the district court, it was not an abuse of

discretion for the court to refuse to preliminarily enjoin the jail’s correspondence

policies. In particular, the court reasonably concluded that Rau had not clearly

established that she would suffer irreparable harm without an injunction. See Siegel,

234 F.3d at 1176. As Sheriff Moats notes, neither the complaint nor the motions for

preliminary injunctions identify any other detainee with whom Rau has

corresponded at the jail other than her son. Nor does her briefing to this Court.

While Rau indicated an intent to correspond with other detainees, there was nothing

concrete before the district court to show that she had been in contact with or

intended to contact other detainees, such that she might be harmed by the jail’s

continuing enforcement of the postcard-only policy.

So despite the Supreme Court’s statement that “[t]he loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury,” KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272–73 (11th Cir.

2006) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)), the absence of any

information regarding Rau’s other communications with detainees at the jail

adequately grounded the court’s conclusion that Rau did not “clearly establish”

irreparable injury. See Keeton, 664 F.3d at 868; Siegel, 234 F.3d at 1176.

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Because the district court reasonably concluded that Rau had not met her

burden of persuasion with respect to at least one of the four factors courts consider

when evaluating whether injunctive relief is warranted, we affirm the court’s

decision to deny Rau’s requests to enjoin the jail’s correspondence policies.3 We

note that the court clearly indicated that it was willing to reconsider the propriety of

injunctive relief based on a fuller record.

DISMISSED IN PART; AFFIRMED IN PART.

3 For that reason, we need not resolve here what specific standard applies to the regulations.