Burnett v. Jones ( 2011 )


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  •                                                                         FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
    
                                                                     December 22, 2011
                         UNITED STATES COURT OF APPEALS
                                                      Elisabeth A. Shumaker
                                                                         Clerk of Court
                                FOR THE TENTH CIRCUIT
    
    
        STEPHEN CRAIG BURNETT,
    
                    Plaintiff-Appellant,
                                                              No. 11-6093
        v.                                            (D.C. No. 5:10-CV-00470-M)
                                                             (W.D. Okla.)
        JUSTIN JONES, Director; JOSEPH
        TAYLOR, Warden,
    
                    Defendants-Appellees.
    
    
                                 ORDER AND JUDGMENT *
    
    
    Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
    
    
    
             Plaintiff Stephen Craig Burnett, a state prisoner proceeding pro se, appeals
    
    from the district court’s order dismissing his civil-rights complaint and denying
    
    his motion to add a defendant. The magistrate judge assigned to the case issued a
    
    report and recommendation in which he concluded that Mr. Burnett’s claims
    
    against Joseph Taylor, the warden at the Cimarron Correctional Facility
    
    
    *
           After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    (Cimarron) were moot and should be dismissed without prejudice. As to Justin
    
    Jones, the director of the Oklahoma Department of Corrections, the magistrate
    
    judge found that even if the claims against him were not moot, those claims
    
    should be dismissed with prejudice because the complaint failed to state any
    
    claims upon which relief could be granted and it would be futile to amend. Last,
    
    the magistrate judge denied Mr. Burnett’s motion to add Robert Ezell, the warden
    
    at the Davis Correctional Facility (Davis), as a defendant. The district court
    
    adopted the report and recommendation. We have jurisdiction under 28 U.S.C.
    
    § 1291, and we affirm in part and reverse and remand in part.
    
          Mr. Burnett was confined at Cimarron when on April 8, 2010, Mr. Taylor
    
    ordered a facility-wide lockdown due to wide-spread gang activity. On May 7,
    
    Mr. Burnett filed suit for declaratory and injunctive relief under 42 U.S.C. § 1983
    
    against Messrs. Taylor and Jones. Normal operations at Cimarron resumed on
    
    May 28.
    
          The linchpin of Mr. Burnett’s suit was not whether prison officials had the
    
    authority to impose a lockdown, but instead whether the restrictions imposed
    
    during the lockdown so altered the conditions of his confinement as to violate his
    
    constitutional rights: “Plaintiff’s central claim . . . is that he was subjected to
    
    unconstitutional conditions of confinement while being on lockdown(s). It is the
    
    conditions of confinement during lockdown that is the issue, not the fact of being
    
    on lockdown itself.” Aplt. Reply Br. at 2. In particular, he cited restricted
    
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    showering, telephone use, inmate interaction, exercise, and visitation. He also
    
    complained that he was served brown bag meals more frequently and had to eat in
    
    his cell. In addition to not having access to the ice machine and microwave oven,
    
    he alleged that normal medium security activities such as rehabilitation programs,
    
    education classes, library use, and organized religious activities were suspended.
    
    In September 2010, while his suit was pending, Mr. Burnett was transferred to
    
    Davis.
    
             Shortly after the transfer, Mr. Ezell placed Davis on a thirteen-day
    
    lockdown. Several months after the first lockdown at Davis had ended,
    
    Mr. Burnett sought to add Mr. Ezell as a defendant “in that the same situation
    
    regarding prison lockdowns [that existed at Cimarron] exists at the Davis
    
    Correctional Facility.” Aplt. App. at 390. In his motion, Mr. Burnett did not
    
    question the authority of the warden or the department of corrections to institute a
    
    lockdown, but simply the resulting conditions of confinement: “Plaintiff is not
    
    complaining about being locked down . . . [which is a] normal situation[].
    
    Plaintiff is, however, raising the same complaint as he raised already in this case
    
    regarding the overly harsh, punitive conditions of confinement and the duration of
    
    his being locked down.” Id. Mr. Burnett’s motion listed the same deprivations he
    
    experienced at Cimarron as discussed above. 1
    
    
    1
         Following the filing of his motion to add Mr. Ezell as a defendant,
    Mr. Burnett notified the district court of two other lockdowns at Davis.
    
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          The magistrate judge concluded that Mr. Burnett’s claims for declaratory
    
    and injunctive relief were moot for two reasons: (1) the lockdown at Cimarron
    
    had ended; and (2) Mr. Burnett had been transferred to another facility. The
    
    magistrate judge also concluded that even if Mr. Burnett’s claims against
    
    Mr. Jones “were construed to come within the exceptions to mootness, such
    
    claims should be dismissed because the allegations in the complaint fail to state a
    
    claim against him.” Id. at 415. He also denied Mr. Burnett’s motion to add
    
    Mr. Ezell as a defendant.
    
          We agree with the magistrate judge that Mr. Burnett’s claims against
    
    Mr. Taylor are moot. See Green v. Branson, 
    108 F.3d 1296
    , 1300 (10th Cir.
    
    1997) (holding that claims for injunctive and declaratory relief are moot where
    
    the prisoner has been transferred and is no longer subject to the conditions of
    
    confinement on which his claims are based). We also conclude that Mr. Burnett’s
    
    claims against Mr. Jones are moot, but for a slightly different reason. We
    
    acknowledge that “where a prisoner brings a lawsuit challenging policies that
    
    apply in a generally uniform fashion throughout a prison system, courts have been
    
    disinclined to conclude that the prisoner’s declaratory or injunctive claims are
    
    moot, even after he has been transferred to another prison in that system.” Jordan
    
    v. Sosa, 
    654 F.3d 1012
    , 1028 (10th Cir. 2011). And we also recognize that
    
    Mr. Jones, the director, was named as a defendant. However, Mr. Burnett has not
    
    pled or argued the existence of any policies that impose any particular restrictions
    
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    during a lockdown, including the duration of any such action. As such, his claims
    
    against Mr. Jones are moot because they do not concern any policy that applies in
    
    a generally uniform fashion throughout the Oklahoma prison system. Because we
    
    affirm on the grounds of mootness, we do not reach the merits of the claim.
    
    Moreover, once a case becomes moot, “the federal court must dismiss the action
    
    for want of jurisdiction.” Jordan, 654 F.3d at 1023 (quotation marks omitted).
    
    And “[i]t is fundamental . . . that a dismissal for lack of jurisdiction is not an
    
    adjudication of the merits and therefore dismissal of the [] claim must be without
    
    prejudice.” Martinez v. Richardson, 
    472 F.2d 1121
    , 1126 (10th Cir. 1973).
    
    Accordingly, Mr. Burnett’s claims against Mr. Jones should have been dismissed
    
    without prejudice.
    
          Last, we agree that the magistrate judge properly denied Mr. Burnett’s
    
    motion to add Mr. Ezell as a defendant for substantially the same reasons
    
    explained by the magistrate judge in his report and recommendation, i.e., the
    
    failure to allege the sort of atypical and significant hardship necessary to trigger
    
    due process protections, citing Sandin v. Conner, 
    515 U.S. 472
    , 484 (1995);
    
    Estate of DiMarco v. Wyoming Dep’t of Corrections, Div. of Prisons, 
    473 F.3d 1334
    , 1339 (10th Cir. 2007).
    
          The judgment of the district court is therefore AFFIRMED in part and
    
    REVERSED and REMANDED in part, with directions to district court to dismiss
    
    Mr. Burnett’s claims against Mr. Jones without prejudice. We GRANT
    
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    Mr. Burnett’s motion for leave to proceed on appeal without prepayment of costs
    
    or fees and remind him that he must make partial payments until the entire
    
    appellate filing fee is paid in full. We DENY Mr. Burnett’s Motion For Leave To
    
    Supplement Appeal.
    
    
                                                       Entered for the Court
    
    
                                                       Michael R. Murphy
                                                       Circuit Judge
    
    
    
    
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