Judge Beverly Martin
Judge Beverly Martin (Photo by Tony Benner/Omega Media Group)

An Atlanta-based appeals court has rejected the federal prison system’s eleventh-hour attempt to end a lawsuit brought by an inmate by giving him the safer facility assignment he has long sought.

The inmate claims he has suffered retaliation for helping with a federal investigation of a corrections officer he encountered while housed at the federal penitentiary in Atlanta. The government argued that his request for a court order ensuring he not be housed in a high-security federal facility was rendered moot when it moved him to a state facility.

But last week’s opinion by the U.S. Court of Appeals for the Eleventh Circuit agreed with the inmate that the prison system’s latest action is not enough to guarantee he won’t be moved to a dangerous facility again.

As recounted in the Eleventh Circuit opinion, the plaintiff has been incarcerated in various facilities run by the federal Bureau of Prisons (BOP) since he was convicted in the District of Columbia, which doesn’t have its own prison system. The plaintiff’s pro bono appellate lawyer, Samuel Park of Winston & Strawn in Chicago, said he didn’t want to get into specifics of the offense given his client’s need for anonymity, but he allowed the conviction was related to possession of firearms.

The prisoner, proceeding under the pseudonym “John Doe,” alleges that while he was incarcerated at the federal penitentiary in Atlanta, a corrections officer coerced him into sexual relations. Doe claims that after he cooperated with a federal investigation of the matter in 2004, resulting in the officer’s resignation, he was promised that he would be kept safe and transferred to a lower security prison.

Doe was transferred to a lower security federal facility in Alabama for several months. But in the years that followed, he alleges, he also has been sent to high-security facilities, including a stay in Atlanta where he was beaten by an officer so badly he required a trip to the emergency room. He contends that, because of his reputation as a snitch, he has been subjected to assaults from both guards and inmates.

Doe alleges one beating occurred because the prison bureau routed through standard prison mail a prison response to a confidential grievance filed by Doe. Guards at a high-security facility in Florida learned of his role as an informant and promptly put him in a cell with two known sexual offenders, who severely beat and assaulted him.

In 2007, Doe filed a lawsuit in the U.S. District Court for the Northern District of Georgia, represented by Atlanta lawyer David Balser (then at McKenna Long & Aldridge), lawyers in the New York and Washington offices of Covington & Burling and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. While the suit was pending, Judge Beverly Martin wrote for the Eleventh Circuit panel, Doe continued to be transferred to high-security facilities, where he suffered additional attacks purportedly linked to his reputation as an informant. After the second of those, Martin wrote, Doe attempted suicide.

Doe’s lawsuit against BOP officials claims a violation of his Eighth Amendment rights against cruel and unusual punishment. He sought damages, as well as an order enjoining BOP officials from sending him through the BOP facility in Atlanta and from incarcerating him in any high-security BOP facility. He later dropped some claims, and U.S. District Judge Richard Story granted defense motions for summary judgment on others based on personal jurisdiction and sovereign immunity.

In 2010, the Eleventh Circuit vacated the grant of summary judgment in part, directing Story to consider whether injunctive relief were appropriate. Story set a 2012 trial date to determine whether Doe was entitled to an injunction.

Six days before trial was to begin, the BOP moved to dismiss the case on the ground that it was moot. The motion included an affidavit saying that Doe’s record in the BOP inmate computer system now had a “Do Not Erase” entry that Doe should not be assigned to or transported through the federal prison in Atlanta. The affidavit also said the BOP had secured an agreement to allow the transfer of Doe to a state corrections department. The BOP soon filed proof of Doe’s transfer to a state facility outside of Georgia.

Doe acknowledged the move was a positive development but opposed the motion to dismiss, arguing he still was entitled to injunctive relief to prevent the BOP from returning him to a high-security federal prison absent a change in circumstances justifying such a transfer. Story granted the government’s motion, however, saying a government actor that voluntarily ceases objectionable behavior enjoys a rebuttable presumption that it will not recur.

Ruling on Doe’s appeal, Martin, Judge William Pryor Jr. and visiting U.S. District Judge Charlene Honeywell of Orlando reversed Story’s ruling. The judges said Doe’s request for injunctive relief was not moot and sent the case back to Story for further proceedings.

Martin began her opinion for the panel by quoting a U.S. Supreme Court decision that said, “It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this court and back down again.” She emphasized that, in order to take advantage of a presumption that objectionable behavior will not happen again, the government first must meet a heavy burden of showing “‘that it is absolutely clear the alleged wrongful behavior could not reasonably be expected to recur’ or that the challenged conduct has been unambiguously terminated.”

The BOP can’t meet that burden based on the record before the court, Martin wrote. “We note that the BOP has never said Mr. Doe will not be transferred back to a high-security facility,” wrote Martin. “Instead the BOP makes indirect statements about how the record does not show any evidence that Mr. Doe will be moved. These statements do not carry the day for the BOP, because it is the BOP’s burden to show that Mr. Doe will not be moved, not Mr. Doe’s burden to show he will.”

Martin pointed to Doe’s repeated transfers to objectionable facilities, even after he filed suit. She also said the timing of the transfer to the state facility “suggests a change was made simply to deprive the District Court of jurisdiction.”

Park, Doe’s appellate lawyer, said the Eleventh Circuit ruling means Doe will get his day in court. “Mr. Doe lived in fear that he could be placed in the same horrible situation when the lawsuit went away,” Park said in a email.

“Legally, we believe this is an extremely important decision,” Park added, “because it clears up for the first time any ambiguity about who bears the burden of demonstrating that a case is constitutionally moot when the government takes action to stop its challenged conduct in response to a lawsuit. The power of federal courts to hear and decide individuals’ complaints against the government shouldn’t be that easily manipulated.”

Winston & Strawn’s website says that Park generally works on commercial and intellectual property litigation.

Assistant U.S. Attorney R. David Powell argued for the government at the Eleventh Circuit. First AUSA John Horn issued a written statement through the office’s public affairs officer: “We’re giving the court’s decision our full consideration and evaluating our steps moving forward.”

The case is Doe v. Wooten, No. 13-10280.