United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
MICHAEL J. FRANK UNITED STATES MAGISTRATE JUDGE
case is before the court on Petitioner Neal Jowers's
(“Jowers”) habeas petition and supporting
memorandum, filed pursuant to 28 U.S.C. § 2241. (Docs.
1, 2). Respondent filed a response arguing that the petition
is subject to dismissal for lack of jurisdiction because of
mootness. (Doc. 10). Jowers was afforded an opportunity to
respond, (Doc. 14), but he has failed to do so. For the reasons
set forth below, Jowers's petition should be dismissed
for lack of jurisdiction.
February 12, 2018, Jowers was an inmate of the Bureau of
Prisons (“BOP”) and filed a § 2241 petition.
Jowers claimed his due process rights were violated when he
was convicted of violating the BOP's policy forbidding
alcohol use. (Doc. 1 at 3; Doc 2 at 4-8). On March 11, 2017,
BOP staff conducted mass alcohol testing of all inmates in
Jowers's housing unit to determine if any inmate had
violated the BOP's policy forbidding alcohol use. (Doc. 2
at 2). Jowers's first breathalyzer reading measured
0.011. (Id.). Fifteen minutes later, he was tested a
second time and this breathalyzer reading was 0.008.
(Id.). Jowers alleged that he was then “locked
up.” Jowers further contended that he was found guilty
of violating the BOP's policy forbidding alcohol use,
which resulted in a loss of 41 days of “good
time” credit and several other sanctions, including
disciplinary segregation. (Doc. 2 at 4). Jowers alleged that
this violated due process insofar as he never violated a BOP
policy. (Doc. 1 at 3; Doc. 2 at 4-8). As relief, Jowers
requested restoration of the 41 days of good time, and
removal of “the remaining sanctions still in
effect.” (Doc. 2 at 7-8).
contends that the petition should be dismissed for lack of
subject matter jurisdiction because it has been rendered
moot. (Doc. 10). According to Respondent, the BOP conducted a
review of the matter, expunged the disciplinary/incident
report, and restored the 41 days of good time credit.
(Id. at 1- 2). Respondent submitted a copy of the
expunged disciplinary/incident report, (Doc. 10-1) and a
report showing that the 41 days of forfeited good time credit
were restored. (Doc. 10-2). Respondent argues that it is not
clear what the “remaining sanctions” are, but any
sanctions concerning the incident have now run their course
insofar as Jowers is no longer in the custody of the BOP.
(Doc. 10 at 2).
It is a
basic principle of Article III that a justiciable case or
controversy must remain “extant at all stages of
review, not merely at the time the [initial pleading] is
filed.” Arizonans for Official English v.
Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 1068 (1997)
(internal quotations marks omitted); Troiano v.
Supervisor of Elections in Palm Beach Cty., Fla., 382
F.3d 1276, 1282 (11th Cir. 2004) (citing Al Najjar v.
Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001)).
“[T]hroughout the litigation, ” the party seeking
relief “‘must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely
to be redressed by a favorable judicial decision.'”
Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 983
(1998) (quoting Lewis v. Cont'l Bank Corp., 494
U.S. 472, 477, 110 S.Ct. 1249, 1253 (1990)).
petition is not moot simply because a § 2241 petitioner
is no longer incarcerated. Brown v. Resor, 407 F.2d
281, 283 (5th Cir. 1969). But post-release “habeas
petitions challenging the conditions of confinement are
almost necessarily moot, for courts normally cannot offer any
habeas redress in such circumstances.” Gentry v.
Deuth, 456 F.3d 687, 694 (6th Cir. 2006). A petition,
like any other civil action, is moot when the court cannot
grant the relief requested. Knox v. Serv. Emps. Int'l
Union, Local 1000, 567 U.S. 298, 307, 132 S.Ct. 2277,
2287 (2012) (noting that a case generally “becomes moot
only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party”) (internal
quotation marks omitted); United States v. Sec'y,
Fla. Dep't of Corr., 778 F.3d 1223, 1228 (11th Cir.
2015) (noting that a case is moot when the court
“cannot grant any effectual relief whatever in favor of
petitioner can show that his case is not moot by
demonstrating that he will suffer “collateral legal
consequences” unless the court grants the requested
relief. See, e.g., Minnesota v. Dickerson,
508 U.S. 366, 371 n.2, 113 S.Ct. 2130, 2135 n.2 (1993);
Jago v. Van Curen, 454 U.S. 14, 21 n.3, 102 S.Ct.
31, 36 n.3 (1981); Dawson v. Scott, 50 F.3d 884, 886
n.2 (11th Cir. 1995). Thus, to withstand a mootness
challenge, a petitioner must demonstrate some ongoing
collateral consequence that is traceable to the challenged
constitutional violation and likely to be redressed by a
favorable judicial decision. United States v. Juvenile
Male, 564 U.S. 932, 936, 131 S.Ct. 2860, 2864 (2011);
United States v. Meyers, 200 F.3d 715, 722 (10th
Cir. 2000) (noting that the petitioner bears the burden of
establishing the existence of collateral consequences of
which the court may relieve the petitioner).
criminal convictions, courts do not presume that parole
revocations will result in collateral legal consequences.
Wilson v. Terhune, 319 F.3d 477, 480-81 (9th Cir.
2003) (“The Supreme Court has held that the presumption
of collateral consequences does not apply to the revocation
of parole.”) For example, in Lane v. Williams,
455 U.S. 624, 102 S.Ct. 1322 (1982), petitioner Williams was
incarcerated after he violated a term of his parole.
Id. at 626-627, 102 S.Ct. at 1324. Williams filed a
habeas petition alleging that his incarceration violated the
Due Process Clause, because he had not been informed, at the
time of his guilty plea, that a term of parole would be part
of his sentence. Id. at 627, 102 S.Ct. at 1324.
Williams' habeas petition requested an order releasing
him from custody and “all future liability” under
his original sentence. Id. at 627 & n.2; 102
S.Ct. at 1324. While the case was pending, Williams
completely served his sentence. Id. at 627-28; 102
S.Ct. at 1325. The Supreme Court held that the presumption of
collateral consequences did not apply, because no civil legal
disabilities such as those present in Carafas
resulted from a finding that an individual violated parole.
455 U.S. at 632, 102 S.Ct. at 1327. The Court further held
that because petitioner Williams obtained all the relief he
sought (i.e. an order releasing him from
incarceration and from “all future liability”
under his original sentence), no live controversy remained.
Id. at 633; 102 S.Ct. 1328.
in Spencer v. Kemna, the petitioner sought to
invalidate an order revoking his parole. Spencer v.
Kemna, 523 U.S. 1, 3, 118 S.Ct. 978, 981 (1998). While
his habeas case was pending, the petition was released from
prison. Id., 523 U.S. at 8; 118 S.Ct. at 983.
Adhering to the principles announced in Lane, the
Court held that the presumption of collateral consequences
did not extend to a challenge to a parole revocation.
Id., 523 U.S. at 14; 118 S.Ct. at 986. Accordingly,
the Court held that Spencer's petition was moot.
Spencer, 523 U.S. at 18, 118 S.Ct. at 988.
courts have extended the holdings of Lane and
Spencer to prison disciplinary proceedings and BOP
decisions not to assess good time credit, thus requiring a
petitioner affirmatively to establish the existence of
collateral consequences. See Green v. Maiorana, 599
Fed.Appx. 557, 558 (5th Cir. 2015); Eichwedel v.
Curry, 700 F.3d 275, 279 (7th Cir. 2012); Scott v.
Warden of the Buena Vista Correctional Facility, 457
Fed.Appx. 712, 714 (10th Cir. 2011); Burkey v.
Marberry, 556 F.3d 142, 148 (3d Cir. 2009);
Wilson, 319 F.3d at 480-81; Wilcox v.
Aleman, 43 Fed.Appx. 210, 213 (10th Cir. 2002); Diaz
v. Duckworth, 143 F.3d 345, 348 (7th Cir. 1998).
Accordingly, in order to withstand a mootness challenge,
released petitioners-such as Jowers-must establish collateral
consequences from any prison disciplinary action.
Jowers filed this habeas action, he requested restoration of
41 days of good time credit, and “immediate removal of
the remaining sanctions still in effect.” (Doc. 2 at
7-8). The good time credit was restored, the incident report
was expunged from his inmate record, and Jowers has been
released from prison. Thus, as to his request for restoration
of 41 days of good time credit, Jowers's petition
obviously is moot. With regard to the “remaining
sanctions, ” Jowers has not carried his burden of
demonstrating that he suffers any “remaining
sanctions.” Therefore, he has failed to show that he
suffers any collateral consequences from the now-expunged
disciplinary/incident report. Because Jowers has not
identified any collateral consequences, there is no relief
that the United States District Court can grant. Jowers's
petition, therefore, is moot, and there is no case or
controversy to be addressed.