Jordan v. Sosa
2011 U.S. App. LEXIS 14753
| 10th Cir. | 2011Background
- Jordan, an inmate at ADX Florence, challenged a statute and regulation restricting incoming publications for sexually explicit content or nudity.
- Ensign Amendment (28 U.S.C. § 530C(b)(6)) bans funding distribution of such materials to prisoners; implementing regulation 28 C.F.R. § 540.72 narrows to pictorial content.
- Program Statement 5266.10 (2003) guides implementation, including administrative processes and exceptions for certain materials.
- BOP rejected four publications for Jordan in 2003–2004 under § 540.72 and the program statement; Jordan exhausted administrative appeals.
- District court upheld the constitutionality of the Ensign Amendment and § 540.72; Jordan appealed the First Amendment ruling.
- Jordan was later transferred from ADX to other facilities, raising mootness concerns and affecting the ability to obtain prospective relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jordan has standing to challenge Ensign Amendment through implementing regulation | Jordan sought relief based on the Ensign Amendment | BOP implements the Ensign Amendment via § 540.72 limiting standing scope | Moot; standing limited to implementing-regulation scope |
| Whether Jordan's facial and as-applied First Amendment challenges are moot due to transfer | Claims persist despite transfer | Transfers moot the case; relief cannot affect him now | Constitutional mootness; claims dismissed as moot |
| Whether the case is prudentially moot to avoid merits | Prudential mootness should not bar merits | Court should stay due to comity and lack of current effect | Prudential mootness; merits not reached |
| Whether the capable-of-repetition yet evading review doctrine saves the claims | Claims could recur | Duration and likelihood of recurrence insufficient | Not satisfied; capable-of-repetition not applicable |
| Whether voluntary cessation tolled mootness | No voluntary-cessation exception applying |
Key Cases Cited
- Thornburgh v. Abbott, 490 U.S. 401 (1989) (facial constitutionality of wardens' publication-rejection authority upheld)
- Green v. Haskell Cnty. Bd. of Comm'rs, 568 F.3d 784 (10th Cir. 2009) (standing and mootness considerations in regulatory challenges)
- Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) (mootness and transferred-prisoner considerations in system-wide policies)
- Randolph v. Missouri Dept. of Corrections, 170 F.3d 850 (8th Cir. 1999) (non-mootness for system-wide policies when challenging broader entity)
- O'Shea v. Littleton, 414 U.S. 488 (1974) (injunctive relief requires ongoing, immediate injury)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (mootness distinctions; prudential considerations in declaratory relief)
- Simmat v. United States Bureau of Prisons, 413 F.3d 1225 (10th Cir. 2005) (distinction between suits against BOP officials and the BOP itself; jurisdictional analysis)
- Turner v. Rogers, 131 S. Ct. 2507 (2011) (capable-of-repetition—evading-review principle cited in mootness context)
- Preiser v. Newkirk, 422 U.S. 395 (1975) (adverseness and prospective relief concepts in mootness)
- Sossamon v. Texas, U.S. , 131 S. Ct. 1651 (2011) (2011) (mootness and relief considerations in institutional-settings)