Dunn et al v. Thomas et al

Filing 258

OPINION AND ORDER: It is ORDERED as follows: (1) The defendants' 127 Partial Motion to Dismiss is denied as to standing. (2) As to mootness, the motion is reserved and set for a Motion Hearing on 12/16/2015 at 10:00 AM in Courtroom 2FMJ in Montgomery, AL before Honorable Judge Myron H. Thompson. (3) The plaintiffs are to submit a pre-hearing brief outlining the evidence they intend to present and explaining why that evidence supports their positions on mootness no later than 21 days be fore the hearing; the defendants are to respond no later than 14 days before the hearing; and the plaintiffs may reply no later than seven days before the hearing. Signed by Honorable Judge Myron H. Thompson on 10/6/2015. Copies furnished to calendar group, AG. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of the
Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

OPINION AND ORDER
The
more

plaintiffs

than

40

in

this

state

class-action

prisoners

Disabilities Advocacy Program.
represent

a

putative

state system.

class

of

and

lawsuit
the

are

Alabama

The prisoners intend to
all

prisoners

in

the

If a class is certified, the litigation

could affect over 25,000 prisoners in approximately 29
facilities.
of

The defendants are the Alabama Department

Corrections

(ADOC),

its

Commissioner,

Associate Commissioner of Health Services.

and

its

The

plaintiffs

inadequate

assert

medical

and

the

following

mental-health

claims:

treatment

in

Alabama prison facilities; denial of due process for
involuntary
accommodate
retaliation

mental-health

treatment;

prisoners
against

the

with

failure

to

disabilities;

plaintiffs

for

and

communicating

with counsel in order to challenge these conditions of
their confinement.

They rely on the First, Eighth, and

Fourteenth Amendments (as enforced through 42 U.S.C.
§ 1983); the Americans with Disabilities Act (42 U.S.C.
§§ 12101 et seq.); and § 504 of the Rehabilitation Act
of 1973 (29 U.S.C. § 794).
injunctive relief.

They seek declaratory and

Jurisdiction is proper under 28

U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343
(civil rights).
This

litigation

is

before

the

court

on

the

defendants’ partial motion to dismiss.

The defendants

seek

of

the

plaintiffs,
have

been

dismissal
Zerrick
released

of

the

Naylor
from

claims

and

Bradley

prison

since

2

two

named

Pearson,
the

case

who
was

filed.

The defendants argue that these two plaintiffs

lack standing and, alternatively, that their claims are
moot.

For the reasons set forth below, the defendants’

motion will be denied with respect to standing.

With

respect to mootness, the motion will be reserved, and a
hearing will be set to take additional evidence and
hear further argument.

I.

BACKGROUND

Plaintiffs Naylor and Pearson are both disabled:
Naylor is blind, and Pearson is hearing-impaired and
communicates by sign language.

They claim that they

have been denied reasonable accommodations for their
disabilities.

Both also claim that, because of their

disabilities, they have been denied access to certain
programs,

benefits,

prisoners.
plaintiffs
contend,

no

and

services

available

to

other

Other blind and deaf prisoners are also
in

this

other

suit,

but,

plaintiffs

3

Naylor

were

and

denied

Pearson

reasonable

accommodations or programming in the same ways as they
were.
This lawsuit was filed in June 2014.

At that time,

Naylor and Pearson were both in prison based on ‘split’
sentences.

Under

Alabama

law,

excepted, a court may ‘split’ a

with

certain

crimes

sentence of 20 years

or less by requiring the defendant to serve a period of
time

in

prison,

suspending

the

remainder

of

the

sentence, and requiring the defendant to serve a term
of probation.

See 1975 Ala. Code § 15-18-8(a)(1). Upon

finding a violation of probation, the court may revoke
the probation and require the defendant to serve the
remainder of his original sentence in prison, less any
time

already

served,

or,

depending

upon

the

circumstances, impose a lesser prison sentence, modify
the conditions of probation, or continue the defendant
on probation.
Dixon

v.

See generally 1975 Ala. Code § 15-18-8;

Alabama,

912

So.

2005).

4

2d

292

(Ala.

Crim.

App.

In February 2015, more than seven months after this
lawsuit was filed, Naylor and Pearson were released
from ADOC custody and began to serve probation on split
sentences.
and

Naylor had served three years in prison,

Pearson,

probation
three

and

years;

two

years.

subject
Pearson

to

Naylor
conditions

will

remain

probation for, at least, five years.1

will
of
on

remain
release

on
for

supervised

If they do not

meet their conditions of probation, they could face a
return to prison.
Since filing the original complaint, the plaintiffs
have amended their pleadings several times.

Naylor and

Pearson

were

the

amended

complaint

released
was

from

prison

filed;

the

after

second

first

amended

1. Although Naylor and Pearson submitted a court
order from Naylor’s case purporting to place him on
unsupervised probation for the remainder of his 15-year
sentence, Alabama law provides that the maximum period
of probation is five years. See 1975 Ala. Code
§ 15-22-54(a) (“[I]n no case ... shall the maximum
probation period of a defendant guilty of a felony
exceed five years.”). Accordingly, it is unclear
whether he will actually remain on probation for more
than five years.
5

complaint, which added a new named plaintiff and some
more-detailed

factual

allegations,2

reflected

these

changes in their status.

II.

DISCUSSION

After the second amended complaint was filed, the
defendants moved to have Naylor and Pearson dismissed.
The defendants argue that, because these two plaintiffs
had been released from custody, their claims are now
moot and based on the second amended complaint, they no
longer have standing to proceed.
Standing
issues.

and

mootness

are

related

but

separate

“[T]he emphasis in standing problems is on

whether the party invoking federal court jurisdiction
has a personal stake in the outcome of the controversy

2. The factual allegations regarding Naylor’s
treatment remained identical; the factual allegations
regarding Pearson’s treatment remained identical except
for
a
new
allegation
that
he
suffered
the
discrimination he had experienced in other arenas of
prison life in a class he was required to attend
shortly before his release.
6

and

whether

the

dispute

touches

upon

the

legal

relations of parties having adverse legal interests.”
U.S.

Parole

(1980)

Comm’n

v.

(citations

Geraghty,

and

445

internal

U.S.

388,

quotation

397

marks

omitted).

Once a party has established standing to

invoke

jurisdiction

the

of

the

court,

the

claim

he

asserts must remain “live” throughout the pendency of
the

lawsuit--that

is,

it

cannot

become

moot.

See

Powell v. McCormack, 395 U.S. 486, 496 (1969).
Although

the

Supreme

Court

famously

described

mootness as “standing set in a time frame,” it has
emphasized that “there are circumstances in which the
prospect that a defendant will engage in (or resume)
harmful

conduct

standing,
mootness.”

but

may

be

not

too

Friends

of

too

speculative

speculative
the

Earth,

to
to

Inc.

v.

support
overcome
Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).
Therefore, the fact that a plaintiff would not now have
standing to initiate a challenge to a given practice

7

does

not

necessarily

mean

that

a

previously

filed

challenge has become moot.
Here, there is no dispute that Naylor and Pearson
both had standing to bring suit when they filed their
original complaint in June 2014.; that, since then,
they

have

both

been

released;

and

that,

when

the

plaintiffs filed an amended complaint, they updated it
to reflect that change.

Whether Naylor and Pearson

retain their personal stake in the lawsuit thus comes
down to two questions: Did amending their complaint to
reflect their release defeat their standing? And did
their release moot their claims?

Because standing is

typically a preliminary determination, the court will
begin with it.

A. Standing
As explained above, Naylor’s and Pearson’s claims
concern the alleged denial of reasonable accommodations
for their disabilities while in prison and the alleged
denial of access to certain programs, benefits, and
8

services on account of their disabilities.

There is no

dispute that they had standing when the first complaint
was filed.

Instead, the defendants argue that, because

they had been released by the time the first amended
complaint was filed, they no longer have standing.

The

court disagrees.
The standing inquiry asks whether such a dispute
exists at the beginning of the litigation, as compared
to

the

mootness

inquiry,

which

asks

whether

dispute remains throughout the litigation.

such

a

See Focus

on the Family v. Pinellas Suncoast Transit Auth., 344
F.3d 1263, 1275 (11th Cir. 2003) (standing is assessed
"at the outset of the litigation" (citation omitted));
see also Cleveland Branch, NAACP v. City of Parma, 263
F.3d 513, 524 (6th Cir. 2001) ("[S]tanding does not
have

to

be

maintained

....

Instead,

it

is

to

be

determined as of the time the complaint is filed.");
Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061
(5th

Cir.

matter

1991)

("As

jurisdiction

with
except
9

all

questions

mootness,

of

subject

standing

is

determined

as

of

the

date

of

the

filing

of

the

complaint, and subsequent events do not deprive the
court of jurisdiction.").
Normally,

a

case

begins,

for

standing

when the initial complaint is filed.

purposes,

However, in a

case which the defendants rely on, the Eleventh Circuit
Court of Appeals has recognized an exception to this
rule of thumb, apparently in order to prevent litigants
from trying to shoehorn standing for expired claims by
amending them onto unrelated complaints.
F.3d

at

1275,

it

concluded

that,

In Focus, 344

when

an

amended

complaint raises new allegations which do not relate
back to a transaction or occurrence identified in the
original complaint, standing (at least with respect to
claims based on these new allegations) must be assessed
as of the date of the amendment.

In that case, the

plaintiff initially alleged that it would suffer First
Amendment

injury

because

it

was

not

permitted

to

advertise for a conference to be held on a certain
future

date;

an

amended

complaint
10

making

the

same

allegation was not filed until after the date of the
conference had past.
“identical”
Fed.

R.

and

Civ.

Id.

thus
P.

Because the allegations were

"plainly

15(c),

relate[d]

the

court

back"

held

that

under
the

plaintiff needed to show standing only as of the date
its original complaint was filed.

Id.

Neither Focus nor any other precedent holds that
standing
complaint

is

to

is

be

reassessed

filed.

every

Litigants

time

an

amended

routinely

amend

complaints for a wide variety of reasons, many of them
not

particularly

substantive.

Absent

an

amendment

which effectively begins the case anew by adding in
unrelated

allegations

(or

new

plaintiffs),

once established need not be reconsidered.3

standing
This does

3. The court also notes that, with respect to
Naylor and Pearson, the second amended complaint
functioned as a ‘supplemental’ rather than an ‘amended’
pleading.
Formal styling aside, the portion of the
filing relevant to them did not add “facts or legal
claims in existence at the time the original pleading
was filed,” as appropriate in an amendment, Manning v.
City of Auburn, 953 F.2d 1355, 1360 n.8 (11th Cir.
1992) (citing Fed. R. Civ. P. 15(a)); rather, it “set
(footnote continued)
11

not, of course, leave defendants without recourse when
a

dispute

evaporates

after

a

case

against

them

has

begun; they can argue, just as defendants do here, that
the plaintiffs' claims have become moot.
Here,

Naylor

and

Pearson's

allegations

regarding

the conditions of confinement in the defendants' prison
facilities have likewise remained essentially the same;
they certainly concern the same “conduct, transaction,
or occurrence."

Fed. R. Civ. P. 15(c)(1)(B).

Just as

forth new facts in order to update the earlier
pleading,” as appropriate in a supplement, id. at
1359-60 (citing Fed. R. Civ. P. 15(d), other citations
omitted); see also C. Wright & A. Miller, 3 Fed. Prac.
& Proc. § 1504 (“[Amended pleadings] relate to matters
that occurred prior to the filing of the original
pleading and entirely replace the earlier pleading;
[supplemental pleadings] deal with events subsequent to
the pleading to be altered and represent additions to
or continuations of the earlier pleadings.”).
In substance, Naylor and Pearson’s filing was an
update as to the newly arisen fact of their release.
Presumably, this supplement was folded for convenience
into an amended pleading that had to be filed in order
to add a new named plaintiff.
Standing requirements
imposed on amended complaints are inapposite where, as
here, it would have been appropriate for the plaintiffs
at issue--Naylor and Pearson--to instead file a
supplemental pleading.
12

in Focus, the fact that their amended complaint reveals
that they were subjected to these conditions in the
past is irrelevant to the standing analysis.

Because

their allegations plainly relate back to their original
complaint, they need show standing only as of the date
it was filed.

This they have done.

The defendants'

contention that Naylor and Pearson no longer present a
justiciable case or controversy is properly considered
not as a question of standing, but rather as one of
mootness.

B. Mootness
Having
standing

established

to

invoke

the

that

Naylor

court’s

and

Pearson

jurisdiction

in

had
the

first place and that they maintain that standing now,
the court turns to a distinct, and more fact-intensive
question: Are their claims now moot?
do

Naylor

and

Pearson

maintain

a

In other words,
personal,

legally

cognizable interest in the litigation, or must these
plaintiffs and their claims be dismissed from the case?
13

Because
resolve

more

evidence

this

evidentiary

is

issue,

it

hearing;

required
is

for

the

reserved

nevertheless,

court

pending

this

opinion

to
an

will

set out analytical guideposts.
“Attacks on subject matter jurisdiction under Fed.
R. Civ. P. 12(b)(1)[, such as in motions to dismiss on
mootness grounds,] come in two forms.

Facial attacks

on the complaint require the court merely to look and
see if the plaintiff has sufficiently alleged a basis
of subject matter jurisdiction, and the allegations in
his complaint are taken as true for the purposes of the
motion.

Factual attacks, on the other hand, challenge

the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings,

such

as

testimony

considered.”

Lawrence

1528-29

Cir.

(11th

v.

1990)

quotation marks omitted).
motion

is

brought,

and

Dunbar,

affidavits,
919

(citations

F.2d

and

are
1525,

internal

When a factual Rule 12(b)(1)

“no

presumptive

truthfulness

attaches to plaintiff’s allegations, and the existence
14

of disputed material facts will not preclude the trial
court

from

evaluating

jurisdictional claims.”
Although

the

for

itself

the

motion

to

merits

of

Id.

defendants’

dismiss

was

based in significant part on an undisputed fact that
appeared on the face of the amended complaint--that is,
that

Naylor

prison--it

and
also

Pearson
took

had

issue

been
with

released
the

from

plaintiffs’

allegation regarding another critical fact, on which
mootness might turn: whether Naylor and Pearson in fact
“have a high risk of being readmitted to ADOC custody
and

facing

faced

the

prior

to

same

discriminatory

[their]

release.”

practices
See

[they]

Defendants’

Partial Motion to Dismiss Plaintiffs’ Second Amended
Class Action Complaint (doc. no. 127) at 8.

The motion

argued that the plaintiffs had offered “no specific
support ... [for this] pessimistic assertion[,]” and
“ignore[d]

the

practical

reality

that

they complain of will not evade review.”

the

practices

Id.

Naylor

and Pearson responded, attempting to answer with some
15

additional

evidence,

including

statistics

about

the

overall reincarceration rates of Alabama probationers
on

split

sentences

and

Pearson’s

criminal

record.

Therefore, this court will treat the motion to dismiss
as a factual attack.
“Because at issue in a factual 12(b)(1) motion is
the trial court’s jurisdiction--its very power to hear
the case--there is substantial authority that the trial
court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.”
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.
May 20, 1981).4

In considering such a factual attack,

it is within “[t]he unique power of district courts to
make

factual

findings

jurisdiction ....”

which

Id. at 413.

are

decisive

of

The court will hold a

hearing to inform its exercise of that power.

4. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the
decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
16

Somewhat

different

mootness

analyses

apply

to

individual claims and to claims brought on behalf of a
putative class; hence, this discussion will proceed to
consider both in turn, though the individual and class
claims are substantively the same.

1. Plaintiffs’ Contentions
In

opposing

the

motion

to

dismiss,

Naylor

and

Pearson suggest that, because there is a significant
chance that they will be reincarcerated (more on this
below), none of their claims has been mooted by their
release and they remain free to proceed just as if they
were still in prison.

But this broad assertion is

without support in relevant case law.

They rely on an

out-of-circuit case, Armstrong v. Davis, 275 F.3d 849
(9th Cir. 2001), abrogated on other grounds by Johnson
v. California, 543 U.S. 499 (2005), that does not go so
far as they suggest, and a district court decision,
Hernandez v. Monterey, 70 F. Supp. 3d 963 (N.D. Cal.

17

2014) (Grewal, J.), that is inconsistent with Eleventh
Circuit precedent.
In Armstrong, 275 F.3d at 860-61, 865-67, the Ninth
Circuit held that disabled parolees had standing to
challenge on behalf of a class discrimination during
parole-revocation hearings.

As a preliminary matter,

this is a standing case, not a mootness case.

In any

event, the appeals court based its conclusion regarding
standing

on

district

court

plaintiffs
proceedings

extensive

factual

regarding

would

be

(though

the

placed
not,

findings

likelihood
into

it

made

by

the

that

the

parole-revocation

appears,

regarding

the

likelihood that their parole would in fact be revoked).
The court allowed
pursue
nowhere

claims

the already paroled

regarding

suggested

that

those
they

plaintiffs

hearings;

would

have

to

however,

it

standing

to

challenge any form of discrimination they might suffer

18

in

prison

if

their

parole

were

actually

revoked.5

Compare McAlpine v. Thompson, 187 F.3d 1213, 1217-18
(10th Cir. 1999) (“[O]ther than (arguably) the Seventh
Circuit, our research indicates that every circuit to
consider the issue has decided that release to parole
moots

a

claim

regulations,

as

regarding
opposed

to

prison
parole

conditions
procedures

and
or

conditions and regulations that affect parole.” (citing
opinions of the First, Third, Fourth, Fifth, Sixth,
Eighth, and D.C. Circuits)).
Naylor and Pearson also cite Hernandez, 70 F. Supp.
3d at 969-72, 974-76, a jail-conditions suit seeking
prospective relief.

There, the court held that several

inmate plaintiffs who were not in incarcerated in the
5. Notably, the Armstrong plaintiffs’ claims
regarding parole-revocation hearings (as distinct from
claims
regarding
conditions
of
confinement
more
generally) likely would have qualified for a mootness
exception--either the ‘capable of repetition, yet
evading review’ exception for individual claims, or the
‘inherently transitory’ exception for class claims--due
to
the
district
court’s
findings
regarding
the
likelihood of recurrence and the brevity of such
hearings.
19

jail when the complaint was filed had standing to seek
prospective relief.

Id. at 976.

The court based its

holding on Armstrong v. Davis, reading the case to hold
that, because these plaintiffs were under supervision
and therefore “still subject to the disputed conditions
of the jail,” they had standing.

However, as discussed

above, Armstrong actually did not go so far as the
Hernandez

court

said.

Hernandez

conflicts

Further,

this

binding

Eleventh

with

precedent, which will be discussed below.

holding

of

Circuit

Accordingly,

this court cannot rely on it.

2. Individual Claims
“The general rule is that a prisoner’s transfer or
release

from

a

jail

moots

his

individual

claim

for

declaratory and injunctive relief” regarding conditions
of confinement.

McKinnon v. Talladega Cnty., 745 F.2d

1360, 1363 (11th Cir. 1984).

This is because “[p]ast

exposure to illegal conduct does not in itself show a
pending case or controversy regarding injunctive relief
20

if unaccompanied by any continuing, present injury or
real

and

immediate

threat

of

repeated

injury.”

Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir. 1985)
(citation omitted).

See also McAlpine, 187 F.3d at

1215 (“[W]hen an inmate’s claim for prospective 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.”).
However, when a prisoner brings a claim that is
‘capable of repetition, but evading review,’ that claim
is not moot even when the injury has, for now, ended,
such as due to his or her release from custody.

For

individual

yet

claims,

“the

‘capable

of

repetition,

evading review’ doctrine [is] limited to the situation
where two elements combine[]: (1) the challenged action
was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there
21

[is] a reasonable expectation that the same complaining
party would be subjected to the same action again.”
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (citations
omitted).

To meet this second threshold, a plaintiff

must allege more than a “mere physical or theoretical
possibility”

of

recurrence;

rather

there

must

be

a

“reasonable expectation or a demonstrated probability
that the same controversy will recur involving the same
complaining

party.”

Id.

(citation

and

internal

quotation marks omitted); see also Honig v. Doe, 484
U.S.

305,

318

n.6

(1988)

(explaining

that

the

likelihood of recurrence need not be “established with
mathematical precision” as long as the expectation of
recurrence

is

reasonable,

and

that

the

question

is

“whether the controversy was capable of repetition and
not ... whether the claimant had demonstrated that a
recurrence of the dispute was more probable than not).
The

court

will

require

additional

evidence as to both prongs of the test.

briefing

and

Naylor and

Pearson should identify any specific claims that they
22

believe

will

evade

review

because

they

challenge

conditions to which a prisoner is subjected for a brief
period of time.

They should submit evidence as to the

durations of these conditions.

They should also submit

individualized evidence substantiating their assertions
that, due to the conditions of their release, their
disabilities, or any other reasons, they are especially
likely

to

have

reincarcerated.

their

probation

revoked

and

be

See, e.g., id. at 320 (“[T]he record

is replete with evidence that Smith is unable to govern
his aggressive, impulsive behavior. ... In the absence
of

any

suggestion

that

earlier

difficulties,

expect,

based

problems,

that

on
he

respondent

it

his
will

has

is

certainly

prior

history

again

engage

overcome
reasonable
of
in

his
to

behavioral
classroom

misconduct.”); Armstrong, 275 F.3d at 867 (basing the
conclusion that “a

person with disabilities is more

likely to be suspected of conduct that results in the
revocation of parole than other parolees” on specific
factual findings of the district court).
23

To the extent

they

allege

experienced

that
has

the

very

discrimination

increased

their

they

likelihood

have
of

reincarceration, Naylor and Pearson should explain how
it has done so.
court

why

their

Finally, they should explain to the
reincarceration

would

necessarily

result in the reimposition of the conditions they have
identified as ‘evading review.’

The defendants should

submit any evidence to the contrary.

3. Class Claims
Of course, Naylor and Pearson do not distinguish in
their substantive allegations between ‘individual’ and
‘class’

claims--they

make

the

same

allegations

on

behalf of themselves as they do on behalf of unnamed
putative class members who are similarly disabled and
are alleged to suffer similar discrimination.

However,

the mootness analysis differs depending on whether the
court is considering the claims as brought on behalf of
individual plaintiffs or on behalf of a class.

Because

these claims have been litigated as class claims from
24

the outset of the case, but no class has yet been
certified,

the

court

must

consider

them

under

both

frameworks.
When a named plaintiff’s claim becomes moot after
certification

of

the

class,

the

claim

justiciable for Article III purposes.

remains

Geraghty, 445

U.S. at 403-04; Franks v. Bowman Transp. Co., 424 U.S.
747,

753-54

(1976).

By

contrast,

when

a

named

plaintiff’s individual claim becomes moot prior to the
certification of a class, the class claim is normally
mooted. Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th
Cir. 1987) (citing Geraghty, 445 U.S. at 404 & n.11).
However, a well-recognized exception exists: “where a
named plaintiff’s claim is ‘inherently transitory,’ and
becomes

moot

prior

to

certification,

a

motion

for

certification may ‘relate back’ to the filing of the
complaint.”

Genesis Healthcare Corp., v. Symczyk, 133

S. Ct. 1523, 1528 n.2 (2013) (citation omitted). See
also

Kremens

v.

Bartley,

431

U.S.

119,

131

(1977)

(explaining that the Court had “adjudicated the merits
25

of [] class claims notwithstanding the mootness of the
claims of the named parties” when “mootness was due to
the inexorable passage of time”); Zeidman v. J. Ray
McDermott & Co., Inc., 651 F.2d 1030, 1045 (5th Cir.
1981) (explaining that while “a suit brought as a class
action must as a general rule be dismissed for mootness
when the personal claims of the named plaintiffs are
satisfied and no class has properly been certified,”
“this general rule must yield when the district court
is unable reasonably to rule on a motion for class
certification before the individual claims of the named
plaintiffs become moot”).
The

Supreme

Court

established

this

exception

to

mootness for ‘inherently transitory’ pre-certification
class claims in a line of cases beginning with Sosna v.
Iowa,

419

U.S.

393,

395-403

(1975).

concerns post-certification mootness.

Sosna

itself

Sosna, an Iowa

resident who wanted a divorce but had resided in the
state for less than a year, brought a class action
challenging

an

Iowa

durational-residency
26

requirement

that

limited

state-court

divorce

jurisdiction

to

persons who had resided in the State for at least one
year.

The district court certified the class, but by

the time her case was on appeal at the Supreme Court,
Sosna had both resided in Iowa for more than a year and
had already procured the divorce elsewhere.
the Court noticed that Sosna’s

individual

Although
claim was

moot, it did not dismiss her action and ruled on the
merits of the class claims.
The Supreme Court’s reasoning rested in part, and
as relevant here, on the transitory nature of Sosna’s
claim.
full

When “the issue sought to be litigated escapes

appellate

review

at

the

behest

of

any

single

challenger,” the Court explained, the case “does not
inexorably become moot by the intervening resolution of
the controversy as to the named plaintiffs.”
401.

Id. at

Rather, while the Court took care to “in no way

detract[] from the firmly established requirement that
the judicial power of Art. III courts extends only to
‘cases and controversies,’” id. at 402, it set out a
27

flexible, case-specific approach to assessing mootness.
“In cases in which the alleged harm would not dissipate
during the normal time required for resolution of the
controversy,

the

jurisdiction

require

stake

in

the

general

principles

that

the

litigation

Art.

plaintiff’s

continue

entirety of the litigation.”

of

Id.

III

personal

throughout

the

On the other hand,

in cases such as the one brought by Sosna (where, due
to the transitory nature of the claim, no particular
“spokesman

...

could

retain

a

personal

adversary

position throughout the course of the litigation”), the
Court

shifted

its

focus

to

the

ongoing

controversy

still “very much alive for the class of persons she has
been certified to represent.”

Id. at 401 & n.9.

In keeping with this practical approach, the Court
also

issued

holding

a

relied

further
firmly

instruction.
on

“the

fact

While
that

a

Sosna’s
putative

class acquires an independent legal status once it is
certified under Rule 23,” Symczyk, 133 S. Ct. at 1530,
the Court noted that, “There may be cases in which the
28

controversy involving the named plaintiffs is such that
it becomes moot as to them before the district court
can reasonably be expected to rule on a certification
motion.”

Sosna, 419 U.S. at 402 n.11 (emphasis added).

“In such instances, whether the certification can be
said to ‘relate back’ to the filing of the complaint
may depend upon the circumstances of the particular
case

and

especially

the

reality

of

the

otherwise the issue would evade review.”

claim

that

Id.

Since then, the Court has affirmed and developed
this pre-certification analysis.
Court

expressly

McLaughlin

that

held
the

in

In particular, the

County

‘relation-back’

of

Riverside

doctrine

v.

applied

even though “the class was not certified until after
the named plaintiffs’ claims had become moot” because
the claims raised were inherently transitory.6

500 U.S.

6. Indeed, this is true even before a formal motion
for certification has been made.
As the Eleventh
Circuit recently explained, “There is nothing in the
[relevant caselaw] that suggests the relation-back
doctrine turns on whether the named plaintiffs’
(footnote continued)
29

44, 52 (1991) (citations omitted).

As the Court has

more recently explained, the “‘inherently transitory’
rationale
which

was

the

developed
challenged

to

address

conduct

circumstances
was

in

effectively

unreviewable, because no plaintiff possessed a personal
stake in the suit long enough for litigation to run its
course.”

Symczyk, 133 S. Ct. at 1531.

A claim is inherently transitory not only if there
exists no plaintiff who could both establish standing
at the outset of litigation and retain an active stake
by the time class certification is decided, but also if
individual claims become moot before or after the
plaintiffs move to certify a class.
Quite the
contrary. ... [A] motion to certify, without more, does
nothing that is significant on this issue. The motion
indicates that the named plaintiff intends to represent
a class if allowed to do so, but the complaint itself
announces that same intent; the motion is not needed
for that purpose. ... The assertion that a motion
fundamentally changes the legal landscape--indeed, that
it
impacts
the
constitutional
prerequisites
to
jurisdiction under Article III--makes no sense.
What
matters is that the named plaintiff acts diligently to
pursue the class claims.”
Stein, 772 F.3d at 707.
This case has been litigated by both parties and
treated by the court as a putative class action from
the outset.
30

it would be difficult to identify which prospective
plaintiff that would be at the time of filing.

As the

Court explained in Gerstein v. Pugh, a claim should be
considered inherently transitory when “[i]t is by no
means

certain

that

any

given

individual,

named

as

plaintiff, would be in ... custody long enough for a
district judge to certify the class.”

420 U.S. 103,

110 n.11 (1975) (emphasis added). Both the Second and
Seventh Circuits have held that, although “the ultimate
length of confinement does affect the applicability of
the ‘inherently transitory’ exception, the essence of
the exception is uncertainty about whether a claim will
remain alive for any given plaintiff long enough for a
district court to certify the class.”

Olson v. Brown,

594 F.3d 577, 582 (7th Cir. 2010) (emphasis added);
accord Zurak v. Regan, 550 F.2d 86, 90-92 (2d Cir.
1977); Thorpe v. District of Columbia, 916 F. Supp. 2d
65, 67 (D.D.C. 2013) (Huvelle, J.).
Claims
release

that

from

derive

custody

from

are

“a

31

potentially
classic

imminent

example

of

a

transitory claim.”

Wade v. Kirkland, 118 F.3d 667, 670

(9th Cir. 1997).

However, it is not clear whether

Naylor and Pearson are raising such claims.

See id.

(reversing and remanding for the district court to take
evidence on the average length of detention in a county
jail in order to determine whether the claims brought
on

behalf

of

a

class

of

inmates

were

“in

fact

‘inherently transitory’”).
Again, the court requires additional briefing and
evidence.7

Should they seek to argue that their claims

are inherently transitory, Naylor and Pearson should
identify

any

inherently

specific

transitory

claims
as

that

defined

they
in

believe

the

case

are
law

7. Although Sosna and its progeny have recognized
the existence of the ‘inherently transitory’ exception
to class claims, its application in this circuit has at
times been confusing.
In particular, in Tucker, 819
F.2d at 1035, the Eleventh Circuit considered putative
class claims brought by a named plaintiff who had aged
out of the class he was attempting to represent
(juveniles confined in the county jail), but discussed
the applicability of the ‘capable of repetition, yet
evading
review’
exception,
not
the
‘inherently
transitory’ exception. The parties may wish to address
the relevance of Tucker’s analysis to this case.
32

discussed here.
average

They should submit evidence as to the

durations

uncertainty

of

regarding

these
those

conditions,

durations.

and

They

any

should

also submit evidence demonstrating that it is certain
that other persons similarly situated will be subjected
to

these

conditions.

The

defendants

should

submit

argument and evidence to the contrary.
*
For

the

foregoing

*

*

reasons,

it

is

ORDERED

as

follows:
(1) The defendants’ partial motion to dismiss (doc.
no. 127) is denied as to standing.
(2) As to mootness, the motion is reserved and set
for a hearing at 10:00 a.m. on December 16, 2015, in
Courtroom
States

2FMJ

of

Courthouse

the

Frank

M.

Complex,

Johnson

One

Jr.

Church

United
Street,

Montgomery, Alabama.
(3)

The

plaintiffs

are

to

submit

a

pre-hearing

brief outlining the evidence they intend to present and
explaining why that evidence supports their positions
33

on mootness no later than 21 days before the hearing;
the defendants are to respond no later than 14 days
before the hearing; and the plaintiffs may reply no
later than seven days before the hearing.
DONE, this the 6th day of October, 2015.
___/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE

34