The federal appeals court based in Denver made it easier on Tuesday for prison officials to defeat lawsuits from incarcerated plaintiffs by moving them to a different facility outside a circuit court’s jurisdiction before judges have a chance to rule.
Michael Bacote Jr., a prisoner with an intellectual disability and history of mental illness, spent seven years litigating claims that the Federal Bureau of Prisons violated his constitutional rights. Specifically, he alleged his “extreme isolation” at the highly secure U.S. Penitentiary, Administrative Maximum Facility in Florence (ADX) amounted to cruel and unusual punishment given his mental condition.
During the litigation, the Bureau of Prisons moved Bacote out of ADX to Allenwood Penitentiary in Pennsylvania. Although Bacote insisted his isolation and restraints continued at his new facility, the U.S. Court of Appeals for the 10th Circuit cited the transfer as a reason to toss Bacote’s case, with his only option being to file a new lawsuit where he currently resides.
“We recognize Plaintiff’s concern that some could misinterpret this holding as a license for the Federal Bureau of Prisons to concoct mootness by transferring litigant inmates,” wrote Judge Joel M. Carson III in the three-judge panel’s March 5 opinion.
But because Bacote had not provided evidence the bureau acted with an eye toward dismissing the case, “we need not answer” how to treat a strategic prisoner transfer, Carson added.
Attorneys for Bacote warned the precedent-setting opinion contained several troubling elements, including the panel’s decision to bend its own rules and let the federal government belatedly raise mootness as an argument. Moreover, they worried the 10th Circuit did not fully recognize the frequency of strategic prisoner transfers.
“Functionally, publishing this decision gives prisons a roadmap for defeating the 10th Circuit’s jurisdiction during the litigation of an appeal,” Bacote’s student lawyers with the University of Denver’s Civil Rights Clinic said in a statement.
“BOP has a long-documented history of transferring plaintiffs to deprive courts of jurisdiction,” they added. “We’re very concerned that the court’s decision will negatively impact incarcerated persons’ ability to have their cases heard on the merits, as it’s difficult — sometimes impossible — for incarcerated litigants to prove that a prison transferred them due to litigation.”
The U.S. Attorney’s Office declined to comment on the panel’s decision.
Originally, Bacote raised multiple issues in his appeal to the 10th Circuit. Although there was no ultimate dispute between the parties about the existence of Bacote’s mental illness and intellectual disability, U.S. District Court Senior Judge Raymond P. Moore determined Bacote could not sue the Bureau of Prisons for relief under federal disability rights law. Moore also determined Bacote had failed to prove the bureau violated his constitutional rights in light of his serious mental illness.
Multiple disability rights organizations filed a brief in support of Bacote on appeal, and the U.S. Attorney’s Office even backed away from Moore’s reasoning during oral arguments in January.
However, the 10th Circuit panel focused on a concern the government raised for the first time on appeal: Bacote’s transfer to Allenwood rendered his seven-year case moot.
“Transfer out of ADX is not the only relief Mr. Bacote is seeking. He is still seeking relief from solitary confinement as an individual with serious mental illness and an intellectual disability, and reasonable accommodation,” argued Kaity Tuohy, representing Bacote.
Judge Gregory A. Phillips acknowledged Bacote submitted statements to the 10th Circuit that there was “no programming at Allenwood” for people with intellectual disabilities and that Bacote was “either shackled or in a cage” when not in his cell.
But “why is it not better for him to simply file a lawsuit there and start over?” Phillips wondered.
Guard towers loom over the administrative maximum security federal prison called Supermax near Florence in this 2007 file photo. Supermax prison, also known as ADX for “administrative maximum,” is a facility so secure, so remote and so austere that it has been called the “Alcatraz of the Rockies.” (Chris McLean/The Pueblo Chieftain via AP)
“One of my concerns is if the case continues in this court and we reach a decision regarding some of the relief he’s entitled to,” added Judge Harris L Hartz, bringing up the appeals court with jurisdiction over Pennsylvania, “the Third Circuit may have a different view of the law. Then we have a real problem. Shouldn’t it be in that court?”
“Mr. Bacote’s case is against the BOP as a national entity,” Tuohy responded. “Requiring Mr. Bacote to start this case over again would be unjust.”
Carson acknowledged the risk of gamesmanship that arises by allowing an out-of-circuit prisoner transfer to moot a case.
“If you have somebody with a claim about a certain prison, the inclination might be, ‘Let’s move ‘em. Then they are not complaining about this prison anymore,'” he said. “And at some point, it’s an evasive move to not deal with the problem, but to deal with a lawsuit.”
Assistant U.S. Attorney Kyle Brenton responded that Bacote was moved to Allenwood’s secure mental health unit after his diagnosis of serious mental illness, as ADX was ill-suited to his needs.
The panel’s concluded Bacote’s case was still constitutionally viable, but believed any relief they could grant would be “too attenuated” because the alleged constitutional violations at ADX were no longer occurring.
As for Bacote’s current incarceration, “From what conditions would our judgment provide Plaintiff relief? Which qualities of Plaintiff’s current incapacitation should we hold improper?” Carson asked. “We do not know the answers to these questions because Plaintiff has not provided them in a complaint.”
He added that while the 10th Circuit’s rules require parties to promptly raise the issue of mootness and the government did not do so in Bacote’s case, the 10th Circuit may suspend its rules — and would “do so here.”
Bacote’s attorneys, in their statement, argued the panel’s concern about interfering in another circuit’s jurisdiction was misplaced because “courts issue rulings that apply to a national entity, nationwide, all the time.” They also were concerned that Bacote, by filing a new lawsuit in Pennsylvania, runs the risk of a second prison transfer and another mooted case should he reach the Third Circuit.
“This is probably the most troubling part of the 10th Circuit’s decision,” the attorneys wrote.
The case is Bacote v. Federal Bureau of Prisons.
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