Morrison v. Federal Bureau of Prisons

• Court: District Court, District of Columbia
• Decided: January 12, 2023
• Docket: Civil Action No. 2021-2860
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) WILLIAM T. MORRISON, JR., ) ) Plaintiff, ) ) v. ) Civil Action No. 21-cv-02860 (BAH) ) FEDERAL BUREAU OF PRISONS, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff William T. Morrison, proceeding pro se and in forma pauperis (“IFP”), filed a

self-styled “Petition for Writ of Mandamus” against defendant, the Federal Bureau of Prisons

(“BOP”), seeking relief under the Administrative Procedure Act (“APA”) and an order pursuant

to the “All Writs Act encompassing the Mandamus and Venue Act and Prohibition Act, 28

U.S.C. §1361 coupled with 28 U.S.C. §1331.” See Petition (“Pet.”), at 1–3, ECF No. 1.

Defendant moves to dismiss the petition, pursuant to Federal Rule of Civil Procedure 12(b)(1),

on grounds, inter alia, that plaintiff’s claims are moot. Def.’s Motion (“Def.’s Mot.”) at 1, ECF

No. 11; Def.’s Mem. Supp. Mot. to Dismiss (“Def.’s Mem.”) at 5, 7, 10, ECF No. 11; id., Def.’s 1 Exhibits in Supp. (“Def.’s Exs.”), ECF Nos. 11-1, 11-2, 11-3. For the reasons discussed below,

defendant’s motion to dismiss is granted.

I. BACKGROUND

1 Since this motion is resolved on mootness, the alternative grounds proffered by defendant to dismiss the petition—namely, on the bases of sovereign immunity, see Def.’s Mem. at 8–10, failure to exhaust administrative remedies, id. at 11–13, failure to state a claim upon which relief may be granted, id. at 8, and res judicata, id. at 13– 15—need not be addressed.

1 Following brief review of the procedural history in this case, the factual allegations

underlying plaintiff’s petition for relief are summarized.

A. Procedural History

Plaintiff initiated this matter on October 26, 2021, while incarcerated at the Federal

Correctional Institution in Oakdale, Louisiana (“FCI Oakdale”). See Pet. at 2–3, Cert. of

Service; see also Mot. for Leave to Proceed IFP, at 1, ECF No. 2; Prisoner Trust Accounting, at

1, ECF No. 3. Following service of the summons and a brief extension granted to defendant to

respond, see Minute Order, dated April 8, 022, defendant filed the pending motion to dismiss on

May 9, 2022, and mailed a copy of the motion to dismiss to the plaintiff’s last known address,

which at the time, was still FCI Oakdale, see Def.’s Mot. at 2; Def.’s Mem. at 15, while noting

that, per the BOP’s “Inmate Locator,” plaintiff was released from federal custody on May 3,

2022, see Def.’s Mot. at 2 n.1; Def.’s Mem. at 5; Def.’s Ex. 1, at 1 (Inmate Locator Database

Printout); see also https://www.bop.gov/inmateloc/ (showing that plaintiff was released on

5/3/22) (last visited on Jan. 6, 2023). Plaintiff, however, had not updated his post-release address

with either defendant’s counsel or the Court.

On May 10, 2022, the Court entered an order (citing Fox v. Strickland, 837 F.2d 507, 509

(D.C. Cir. 1988)) (“Fox order”), ECF No. 12, advising plaintiff to respond to defendant's motion

to dismiss by June 10, 2022, or the Court could rule on the motion, and/or dismiss this matter,

without the benefit of his position. Upon later review, the court discovered that the docket did

not expressly indicate that the Clerk of Court had mailed the Fox order to plaintiff but, in any

event, without notice of his new address, the order would have been mailed to his last known

address at FCI Oakdale.

2 Plaintiff did, however, file a notice of change of address (“Pl.’s NCA”), ECF No. 13, on

May 9, 2022, but that notice was not entered on the docket until May 15, 2022. Consequently,

neither the Court nor defendant was privy to the plaintiff’s updated address until after defendant

had filed and mailed the motion to dismiss, and after the Court had entered the Fox order. It was

therefore unclear if plaintiff ever received copies of same.

Accordingly, on October 21, 2022, the Court directed the Clerk of Court to mail courtesy

copies of (1) defendant's motion to dismiss, supporting memorandum, and exhibits, (2) the order

itself, and (3) the docket sheet, to plaintiff's updated address of record, 3816 N. Wayne Ave,

Kansas City, Missouri. See Order, ECF No. 14. In the same order, the Court sua sponte granted

plaintiff an extension––until November 10, 2022––to file any opposition to defendant’s motion

to dismiss. See id. at 2. To date, plaintiff has neither filed an opposition nor requested an

extension. Aside from the change of address, filed approximately eight months ago, see

generally Pl.’s NCA, plaintiff has not participated in this case at all since the filing of his

petition.

B. Plaintiff’s Factual Allegations

Plaintiff seeks to compel BOP to do two things, as described in more detail below.

(1) Coenzyme Q10

In his petition, plaintiff first demands a writ of mandamus compelling defendant to make

the dietary supplement, Coenzyme Q10 (“CoQ10”), available for purchase in the inmate

commissary at FCI Oakdale, and perhaps, at all federal prison commissaries, as purportedly

required by 28 C.F.R. § 549.30. See Pet. at 4–6. 2 Section 549.30 “establishes procedures

2 Plaintiff previously sued BOP in this Court raising a similar claim, namely, that the BOP’s denial of his request for CoQ10 violated his Eighth Amendment rights, see Morrison v. BOP, No. 19-1838 (CRC) (filed June 20,

3 governing inmate access to Over-The-Counter (OTC) medications for all inmates except those in

inpatient status at Federal Medical Centers[,]” and allows inmates to “buy OTC medications

which are available at the commissary.” 28 C.F.R. § 549.30.

According to defendant, in 2015, plaintiff received CoQ10 through a “special purchase

order,” or an approved inmate request to purchase an item not routinely sold in the institution’s

commissary. Def.’s Mem. at 5–6 (citing BOP Program Statement 4500.12 § 3.5, “Special

Purchase Orders (SPO)”). He received CoQ10 until sometime in 2017, when his special

purchase order was discontinued because the BOP added CoQ10 to the list of “Items Prohibited

from Sale in the Commissary.” Id. at 6 (citing BOP Program Statement 4500.12 § 3.3(g)

(prohibiting the sale of “[d]ietary supplements such as amino acids in the form of tablets,

capsules, liquids, or powders; desiccated liver tablets; ginseng; C.O.Q.10; gamma oryzanol,

etc.”)).

For some time thereafter, plaintiff was prescribed CoQ10 with the approval of BOP’s

Chief Pharmacist but, in 2019, the Chief Pharmacist denied plaintiff’s prescription because, by

then, BOP policy prohibited Health Services staff from prescribing non-FDA approved

substances. See id. (citing BOP Program Statement 6360.1 § 7b, “Procedures and Operational

Practices, National Drug Formulary;” BOP Program Statement 6031.04 § 36, “Vitamins and

Nutritional Supplements”); see also Def.’s Ex. 2 (Pl.’s BOP Administrative Record), at 19, 22–

24.

(2) Requiring Mask Wearing

2019), at Compl., ECF No. 1; Amended Compl., ECF No. 25, and that action was dismissed, on March 30, 2021, for failure to state a claim, see id. at Dismissal Order, ECF No. 36; Memorandum Opinion, ECF No. 37.

4 Second, plaintiff seeks to enjoin defendant from “ordering [p]risoners to wear masks

contrary to 28 C.F.R. § 541.8 Table 1 at #207 and, sanctioning the [p]risoners for failing to wear

a mask.” Pet. at 6. The cited regulation, 28 C.F.R. § 541.8, governing “Discipline Hearing

Officer (DHO) hearing[s],” provides that federal inmates may be sanctioned for “[w]earing a

disguise or a mask,” see id. at Table 1, “Prohibited Acts and Sanctions,” “High Severity Level

Prohibited Acts,” at No. 207. Plaintiff alleges that, starting in May or June 2020, his

“institutional wardens” posted internal memorandums requiring inmates to wear masks, Pet. at 5,

which requirement, he contends, improperly contradicted the “mandatory language of 28 C.F.R.

§ 541.8 Table 1 at #207.” id. at 5–6. Plaintiff does not allege that he was ever sanctioned for

refusing to wear a mask, see Def.’s Mem. at 7; Def.’s Ex. 3 (Pl.’s Disciplinary Record), but

contends that “some prisoners” were unfairly disciplined for such refusal when those inmates

were, in fact, following the binding law set forth in the Code of Federal Regulations, see Pet. at

5.

II. STANDARD OF REVIEW

A court must dismiss a case under Federal Rule 12(b)(1) for mootness, one of the four

central prongs of justiciability under Article III, see Nat'l Treasury Employees Union v. United

States, 101 F.3d 1423, 1427 (D.C. Cir. 1996), permitting federal courts to adjudicate only “actual,

ongoing controversies[,]” Honig v. Doe, 484 U.S. 305, 317 (1988). If “events outrun the

controversy such that the court can grant no meaningful relief[,]” McBryde v. Comm. to Review

Circuit Council Conduct and Disability Orders of Judicial Conference of U.S., 264 F.3d 52, 55

(D.C. Cir. 2001), cert. denied, 537 U.S. 821 (2002), the case is moot and cannot proceed, see

Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992).

5 To survive a motion to dismiss under Federal Rule 12(b)(1), the plaintiff bears the burden

of proving a court’s subject-matter jurisdiction over the claim at issue. Arpaio v. Obama, 797

F.3d 11, 19 (D.C. Cir. 2015); see also Hertz Corp. v. Friend, 559 U.S. 77, 96–97 (2010);

Thomson v. Gaskill, 315 U.S. 442, 446 (1942). When considering such a motion, a court must

accept as true all uncontroverted material factual allegations contained in the complaint and

“‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be

derived from the facts alleged’ and upon such facts determine jurisdictional questions.” Am.

Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394

F.3d 970, 972 (D.C. Cir. 2005); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)). A court

need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported

by facts alleged in the complaint or amount merely to legal conclusions. See Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A court may consider documents outside the

pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735 n.4

(1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).

III. DISCUSSION

Plaintiff is no longer incarcerated and his release from custody extinguishes any subject

matter jurisdiction over his claims.

Generally, when a prisoner challenges prison conditions or a BOP policy, that “prisoner’s

. . . release from a prison moots any claim he might have for equitable relief[.]” Scott v. District

of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998), cert. denied, 525 U.S. 851 (1998); id. at n.1

(citing Cameron v. Thornburgh, 983 F.2d 253, 257 (D.C. Cir. 1993); Dorman v. Thornburgh,

955 F.2d 57, 58 (D.C. Cir. 1992) (per curiam) and collecting cases from multiple other

Circuits)); Lewis v. Contl. Bank Corp., 494 U.S. 472, 477–78 (1990) (holding same); see, e.g.,

Martin-Trigona v. Smith, 712 F.2d 1421, 1427 (D.C. Cir. 1983) (per curiam) (affirming dismissal

6 where plaintiff challenged various prison conditions and BOP policies because his “claims

became moot when he was released from prison.”); Martin-Trigona v. Smith, 712 F.2d 1420,

1420–21 (D.C. Cir. 1983) (per curiam) (holding same); Aref v. Garland, No. 20-5368, 2022 WL

605726, at *1 (D.C. Cir. Feb. 25, 2022) (per curiam) (vacating entry of summary judgment and

remanding with instructions to dismiss as moot where plaintiff sought injunctive relief from the

BOP, but had been released from custody).

The reasoning for this precedent is commonsensical. Standing depends on whether

plaintiff is likely to suffer a future injury from the challenged actions. City of Los Angeles v.

Lyons, 461 U.S. 95, 105 (1983) (citations and internal quotation marks omitted), and past injury

is insufficient, see id. at 95–96 (citing O'Shea v. Littleton, 414 U.S. 488, 495–96 (1974)). An

intervening event, such as plaintiff’s release from custody, may render a claim moot if “(1) there

is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events

have completely or irrevocably eradicated the effects of the alleged violations.” Pharmachemie

B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (internal quotation marks omitted)

(quoting Nat'l Black Police Ass'n v. D.C., 108 F.3d 346, 349 (D.C. Cir. 1997); County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979)).

Here, “plaintiff is no longer incarcerated, [and] does not allege that it is likely he will be

incarcerated in a federal prison again[,]” Zakiya v. United States, 267 F. Supp. 2d 47, 55 (D.D.C.

2003) (dismissing former inmate’s claims for injunctive relief), consequently his claims are

“effectively doomed[,]” Webman v. BOP, No. 03-017 (CKK), 2005 WL 6088711, at *1, *3

(D.D.C. Jan. 4, 2005) (dismissing former inmate’s claims for injunctive relief arising from his

challenge to the BOP’s religious program policies, because he was “no longer is incarcerated by

the BOP”), aff’d, 441 F.3d 1022, (D.C. Cir. 2006); see Shepard v. Quinlan, No. 90–895, 1991

7 WL 221137, at *1 (D.D.C. Oct. 7, 1991) (finding that plaintiff’s claims against the BOP

“seeking relief in the form of a writ of mandamus” were moot because he was “no longer in the

custody of the federal Bureau of Prisons[.]”). The violations alleged by plaintiff simply cannot

recur as to plaintiff and his standing to raise his claims therefore depends on whether he

somehow (1) finds himself back in the custody of the BOP, and (2) personally faces the alleged

hardships upon reincarceration. This is an “untenable” hypothetical. See Webman, 2005 WL

6088711, at *4 (finding that plaintiff could not predicate standing “on the chance that he [may

someday] be incarcerated again[.]”). “The Supreme Court has repeatedly refused to consider the

likelihood of a future harm when the harm will be revisited on a criminal inmate only upon

committing a subsequent crime.” Id. (citing O'Shea, 414 U.S. at 497; Lane v. Williams, 455 U.S.

624, 633 n.13 (1982); Spencer v. Kemna, 523 U.S. 1, 15 (1998)).

No live controversy remains in this matter, given plaintiff’s release from BOP custody,

see Martin-Trigona, 712 F.2d at 1427, and therefore this Court lacks subject matter jurisdiction,

see Haase, 835 F.2d at 906.

IV. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss, pursuant to Federal Rule of

Civil Procedure 12(b)(1), ECF No. 11, is granted, and this case is dismissed as moot. An order

consistent with this memorandum opinion will be issued contemporaneously.

________/s/_________________ BERYL A. HOWELL Date: January 12, 2023 Chief United States District Judge