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[DO NOT PUBLISH]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
2
Case: 18-13006 Date Filed: 05/15/2019 Page: 3 of 10
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
4
Case: 18-13006 Date Filed: 05/15/2019 Page: 5 of 10
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
5
Case: 18-13006 Date Filed: 05/15/2019 Page: 6 of 10
“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
6
Case: 18-13006 Date Filed: 05/15/2019 Page: 7 of 10
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
7
Case: 18-13006 Date Filed: 05/15/2019 Page: 8 of 10
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.
9
Case: 18-13006 Date Filed: 05/15/2019 Page: 10 of 10
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.
10
