## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 12 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHNNIE LOUIS McALPINE, Plaintiff-Appellant, v. RON THOMPSON, Defendant-Appellee. No. 96-6124

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-94-1406-L)

John J. Carwile (Ronald W. Little with him on the b riefs), Doerner, Saunders, Daniel and Anderson Tulsa, Oklahoma, for Plaintiff- Appellant. Kay Sewell, Assistant United States Attorney (Patri ck M. Ryan, United States Attorney, with her on the brief), Oklahoma City, Ok lahoma, for DefendantAppellee.

Before EBEL, BRISCOE , and LUCERO , Circuit Judges.

EBEL , Circuit Judge.

In August 1994, while incarcerated in a federal fac ility, Johnnie Louis McAlpine (“McAlpine”), a member of the Native Ameri can Church, brought a pro- 2 -

se action in federal court under the First Amendmen t and the Religious Freedom Restoration Act of 1993 (“RFRA”), seeking to compel Warden Ron Thompson (“Thompson” or “Warden”) to provide him with peyote and other “necessary items” to conduct Native American Church ceremonies . The district court reached the merits of McAlpine’s claims and granted the Warden’s motion to dismiss, or in the alternative, for summary judgmen t. McAlpine appeals. We hold that McAlpine’s subsequent release from federa l prison on supervised release moots his claims, thereby depriving us of j urisdiction. Accordingly, we VACATE the district court’s order and REMAND with i nstructions to DISMISS.

BACKGROUND According to the pleadings, McAlpine is a restricte d Osage Indian and a member of the Native American Church. At the time he filed this action, on August 24, 1994, in the United States District Court for the Western District of Oklahoma, he was incarcerated at the Federal Prison Camp in El Reno, Oklahoma (“El Reno”), serving a forty-six month sentence formail fraud. McAlpine’s petition for mandamus, the denial of which is the s ubject of the present appeal, alleged that Warden Thompson’s refusal to provide p eyote for Native American Church services violated his rights under the FirstAmendment and the RFRA, and prayed for the following prospective mandamus relie f: “1) . . . the Court to order1 Because he was incarcerated at the time he filed th is action, McAlpine

made no claim that supervised release guidelines pr ohibit use of peyote, or, if so, that such a prohibition violates the First Amendmen t or RFRA. His claim related solely to the conditions of his confinement at El R eno. - 3 - Warden Thompson to provide peyote for the Native Am erican Church Ceremonies. 2) . . . plaintiff requests that the C ourt orders the Warden to provide the necessary items needed for the Native American Churches [sic] evening through noon services once a month (to include meal s, peyote, tipi, and outside, visiting, roadmen, firemen and singers).” The magistrate judge considered the merits of McAlp ine’s claim and found that the Warden’s denial of peyote and other ceremo nial items to McAlpine did not violate the First Amendment or RFRA, and thus r ecommended that the district court grant Thompson’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. On March 25, 1996, the district court adopted the magistrate’s findings and recommendation, and grant ed Thompson’s motion. McAlpine filed his timely notice of appeal on April 1, 1996. Thereafter, on November 1, 1996, McAlpine completed his term of incarceration and was released from El Reno Prison Camp. Arguing that McAlpine sought relief regarding only the condition s of his confinement, and his ability to practice his religion while incarcerated , the Warden now claims that McAlpine’s claims have been mooted. 1 We agree. Accordingly, we VACATE the- 4 -

district court’s order and REMAND to the district c ourt with instructions to DISMISS McAlpine’s petition as moot.

DISCUSSION
Mootness Before reaching the merits of McAlpine’s First Amen dment and RFRA claims, we must consider the jurisdictional questio n of mootness. Warden Thompson argues that McAlpine’s claims are moot bec ause the only relief sought by McAlpine “deal[s] with desires during his incarc eration,” and he is no longer incarcerated. McAlpine responds that because he “r emains on supervised release (parole) through November 1, 1999” and “he is subje ct to revocation of his parole and reincarceration,” the acts he complains of are capable of repetition, yet evading review. Thus, the issue before us is wheth er the claim of a prison inmate seeking prospective mandamus relief solely related to conditions of confinement becomes mooted by that inmate’s subsequent release on parole or supervised release. We answer that question in the affirmativ e. Upon previous consideration of this question, this court has issued potentially conflicting decisions. Compare White v. State of Colo. , 82 F.3d 364, 366 (10th Cir. 1996) (claims for prospective injunc tive relief mooted by inmateplaintiff’s release on parole because possibility o f parole revocation “is too speculative” to come under the “capable of repetiti on, yet evading review”- 5 -

exception), withMcKinney v. Maynard , 952 F.2d 350, 351 (10th Cir. 1991) (inmate-plaintiff’s claims for injunctive relief to allow him to engage in certain religious practices in prison not mooted by his tra nsfer to pre-parole status because “[e]ven as a parolee, circumstances may res ult in Mr. McKinney’s reinstitutionalization. Thus, the acts of which he now complains are subject to reoccurrence, and the issues he raises are not moot .”); cf. Green v. Bronson , 108 F.3d 1296 (10th Cir. 1997) (inmate-plaintiff’s clai ms for injunctive relief mooted by his release from prison where there was no indic ation that plaintiff was still on parole or supervised release following release). T oday, we hold that when an inmate’s claim for prospective injunctive relief re garding conditions of confinement becomes moot due to the inmate-plaintif f’s release from confinement, the inmate’s parole or supervised rele ase status does not, absent some exceptional showing, bring that claim under th e narrow “capable of repetition, yet evading review” exception to the mo otness doctrine. While our holding comports with the teachings of Gr eenand White , we are aware that McKinney , which involved a somewhat similar factual scenari o to the present case, supports a different result. In McKi nney , the appellant was a Sioux Indian seeking damages as well as injunctive relief to (1) “prohibit Oklahoma prison authorities from enforcing a prison grooming code against him,” and (2) “require prison officials to return his medicine ba g[] and to permit the2Nothing in McKinneyindicates whether “pre-parole” status was equivale nt

to the “supervised release” status of McAlpine or w hether it involved a greater degree of prison supervision or likelihood of reinc arceration. However, four years after McKinney , we observed that “pre-parole” is a statutory prog ram in Oklahoma which “releases qualified inmates into soc iety on a conditional basis.” Harper v. Young , 64 F.3d 563, 565 (10th Cir. 1995). Typical condi tions include pre-parolee agreement to: random searches or visit s from law enforcement officers; report to probation officer at frequent i ntervals; travel limitations and curfews; drug and alcohol prohibitions; random urin e testing; maintain employment or enrollment in a full-time educational program. See id. at 565 n.5. In short, since 1995, this court has recognized that pre-parole is the functional equivalent of parole. See id. at 567.

3 We have circulated this opinion to the entire courtand have received the concurrence of all its active judges for our holdin g overruling McKinneyto the extent that McKinneyheld that the pre-parole, parole, or supervised re lease status of a former inmate seeking injunctive relief relati ng only to prison conditions saves that claim from dismissal on mootness grounds

. - 6 - construction of a sweat lodge at the correctional f acility.” 952 F.2d at 351. The state claimed that McKinney’s case was mooted by hi s release from prison and his status as a pre-parolee 2 . This court disagreed, holding that McKinney’s in junctive claims as well as his damages claims survived his c hange in status from prisoner to pre-parolee, because “circumstances may result i n Mr. McKinney’s reinstitutionalization. Thus, the acts of which he now complains are subject to reoccurrence, and the issues he raises are not moot .” Id. at 351. We perceive some tension between McKinney and our subsequent cases of
Greenand White , and to the extent that there is a conflict, the e n banc court now overrules McKinneyand adopts the rule articulated in Green and White

. 3- 7 -

A number of factors support departure from McKinney . First , under wellestablished Supreme Court and Tenth Circuit law, wh en a favorable decision will not afford plaintiff relief, and plaintiff’s case i s not capable of repetition yet evading review, we have no jurisdiction under Artic le III. The Tenth Circuit has said that “Article III’s requirement that federal c ourts adjudicate only cases and controversies necessitates that courts decline to e xercise jurisdiction where the award of any requested relief would be moot — i.e., where the controversy is no longer live and ongoing.” Cox v. Phelps Dodge Corp

. , 43 F.3d 1345, 1348 (10th Cir. 1994). A claim will be deemed moot unless a “ ‘proper judicial resolution’” settles “‘some dispute which affects the behavior o f the defendant toward the plaintiff.’” Id. (quoting Hewitt v. Helms , 482 U.S. 755, 761 (1987)). Cox continued: “[T]his court has explained that a ‘plai ntiff cannot maintain a declaratory or injunctive action unless he or she c an demonstrate a good chance of being likewise injured [by the defendant] in the fu ture.’” Id. at 1349 (quoting Facio v. Jones , 929 F.2d 541, 544 (10th Cir. 1991)) (alteration i n original); see also City of Los Angeles v. Lyons , 461 U.S. 95, 109 (1983) (“[T]he capable-ofrepetition doctrine applies only in exceptional sit uations, and generally only where the named plaintiff can make a reasonable sho wing that he will again be subjected to the alleged illegality.”).- 8 -

As the Supreme Court explained in O’Shea v. Littlet on , 414 U.S. 488, 495- 96 (1974), “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” The O’SheaCourt held that the chance that individuals would violate criminal statutes and be tried for their offenses was not “sufficiently real and immediate to show an existin g controversy.” Id. at 496. The Court concluded that it is to be assumed that “ [plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction.” Id. at 497. Moreover, the narrow capable-of-repetition exceptio n to the mootness doctrine applies only “where the following two circ umstances [are] simultaneously present: ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration , and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’” Spencer v. Kemna , 118 S.Ct. 978, 988 (1998) (alterations in origina l) (quotations and citations omitted). In a mootness issue similar to the one presented here, the SpencerCourt held: Petitioner’s case satisfies neither of these condit ions. He has not shown (and we doubt that he could) that the time be tween parole revocation and expiration of sentence is always so short as to evade review. Nor has he demonstrated a reasonable likel ihood that he will once again be paroled and have that parole revoked.- 9 -

Id. Finally, in Honig v. Doe , 484 U.S. 305, 320 (1988), the Court emphasized that “for purposes of assessing the likelihood thatstate authorities will reinflict a given injury, we generally have been unwilling to a ssume that the party seeking relief will repeat the type of misconduct that woul d once again place him or her at risk of that injury.” See also Murphy v. Hunt , 455 U.S. 478, 483-84 (1982) (no reason to believe that party challenging denial of pre-trial bail will once again be in a position to demand bail). Applying these principles to McAlpine’s case demons trates why the hypothetical possibility that McAlpine, a former in mate on supervised release, will violate the terms of that supervised release a nd be returned to the same prison and same conditions of confinement cannot save an otherwise moot claim for prospective injunctive relief relating to priso n conditions. First, since McAlpine is currently on supervised release and no longer confined at El Reno, even a favorable ruling from this court could not i n his present condition provide the prospective injunctive relief he seeks — i.e., an order compelling Warden Thompson to provide him with peyote and other Nativ e American Church ceremonial items. Second, McAlpine has failed to e stablish either of the two requirements necessary to qualify for the exception to mootness for cases capable of repetition, yet evading review: Even (1) if McAlpine violates the conditions of his supervised release, and(2) if he has his supervised release revoked, and (3) if4 At oral argument, counsel for Warden Thompson infor med this court that

if McAlpine violated any conditions of his supervis ed release and was returned to incarceration it is unlikely that he would be retur ned to El Reno because that facility is an honor camp. - 10 - he is reassigned to El Reno Prison Camp, 4 and(4) if Warden Thompson is still warden there, and(5) if Warden Thompson still denies McAlpine peyot e, McAlpine has failed to demonstrate that there will be insufficient time in that event for him to obtain review in federal court of renewed First Amendment and RFRA claims to require the warden to provide him wi th peyote and other ceremonial religious items. As such, McAlpine’s ca se is moot and it does not fall into the exceptional class of cases capable of repe tition, yet evading review. We believe McAlpine’s situation is typical, and thus w e conclude that the controlling mootness cases counsel against McKinney

.5 The Seventh Circuit has issued somewhat conflicting opinions on this

issue. In Morales v. Schmidt , 489 F.2d 1335 (7th Cir. 1974), the Seventh Circui t held that appellant’s claim for an injunction prohi biting Wisconsin state officials from restricting correspondence between Morales and his wife’s sister was not moot even though Morales achieved parole status aft er filing his suit because: (1) as a parolee, Morales was still in the custody of t he Wisconsin correctional system and still subject to conditions imposed by t he state, which admitted that it could and would continue to impose a restriction on communication between Morales and his sister-in-law even during his parol e in the absence of a court order; and (2) “there is always the possibility that Morales during his period of parole will violate the terms of his conditional re lease and thus be returned to prison.” Id. at 1336. The Morales court focused most of its discussion of the mootness issue on the former reason. In Morales , unlike the present case, the restriction complained of would have directly affec ted Morales’ then-current parole status. By contrast, here, since McAlpine is no longer incarcerated at El Reno, no order from this court could presently prov ide McAlpine with the relief sought, i.e., an order enjoining Warden Thompson to provide McAlpine with peyote and other ceremonial items. Warden Thompson presently has no custody over McAlpine. Thus, to the extent that Morales additionally referenced the possibility of the parolee being reincarcerated, th at rationale was necessarily subsumed in the more immediate relief Morales sough t. Seventh Circuit opinions since Morales have held that inmate claims against prison offici als for prospective injunctive relief are mooted by the inmate’s transf er to another facility in the absence of a demonstration of the likelihood of ret ransfer (which may not be based on “mere speculation.”). See Higgason v. Farley , 83 F.3d 807, 811 (7th Cir. 1995); see also Knox v. McGinnis , 998 F.2d 1405, 1412-15 (7th Cir. 1993) (prisoner failed to establish “real and immediate” threat of being returned to segregation unit, and hence his suit complaining of segregation practices is moot.). - 11 - Second , other than (arguably) the Seventh Circuit, 5 our research indicates that every circuit to consider the issue has decide d that release to parole moots a claim regarding prisonconditions and regulations, as opposed to parole procedures or conditions and regulations that affect parole . See Hickman v. Missouri , 144 F.3d 1141, 1141-43 (8th Cir. 1998) (“Because plaintiffs have been- 12 -

released on parole and are no longer confined at WM CC, their claims [for equitable relief] are moot.” (citing Martin v. Sarg ent , 780 F.2d 1334, 1337 (8th Cir. 1985) (ordinarily claim “to improve prison con ditions is moot if [plaintiff is no longer subject to those conditions]”)); Black v. Parke , 4 F.3d 442, 444 n.2 (6th Cir. 1993) (“Black was paroled. Therefore, his req uest for preliminary and permanent injunctive relief is moot.”); Dorman v. T hornburgh , 955 F.2d 57, 58 (D.C. Cir. 1992) (“Dorman has been paroled since no ting this appeal. Consequently, his plea for injunctive relief is now moot.”); Gillespie v. Crawford , 858 F.2d 1101, 1103 (5th Cir. 1988) (en banc) (“Gil lespie too has now been paroled and his claims for equitable and declaratory relief for himself have become moot.”); Garcia v. De Batista , 642 F.2d 11, 12 (1st Cir. 1981) (“Plaintiff’s prayer for injunctive relief became m oot when he was released on parole.”); Winsett v. McGinnes , 617 F.2d 996, 1003 (3d Cir. 1980) (en banc) (“Winsett’s demand for injunctive relief is now moo t. . . . Because Winsett has now received a conditional parole, is no longer subject to Delaware’s jurisdiction, and shows no interest in returning . . . .”); see a lso Freeman v. Johnson , No. 91- 7194, 1992 WL 90276, at **1 (4th Cir. May 4, 1992) (unpublished disposition) (“Where a party seeks solely equitable relief conce rning prison conditions or regulations, and is subsequently paroled, the claim s are moot.”); McKinnon v. Talladega County, Ala. , 745 F.2d 1360, 1363 (11th Cir. 1984) (“The genera l rule- 13 -

is that a prisoner’s transfer or release from a jai l moots his individual claim for declaratory and injunctive relief.”). Third , and related to the O’SheaCourt’s assumption that citizens “will conduct their activities within the law and so avoi d prosecution and conviction,” we are not inclined to speculate that McAlpine will break the law or otherwise violate the conditions of their release agreement. See Knox , 998 F.3d at 1413 (“Presumably, Knox would be returned to segregation [and the conditions he sued to remedy] only if he were to violate a prison rule , such as the one prohibiting the possession of dangerous contraband. Although that may be a very real possibility given that contraband was found in Knox’ cell twice in four years, we must assume that Knox will abide by prison rules and the reby avoid a return to segregation status.”) Such speculation would under mine the presumption of innocence in our criminal justice system, and the r ehabilitative focus of the parole system. Applying traditional principles of the mootness doctrine, we hold that McAlpine’s case is moot.
CONCLUSION We VACATE the district court’s order and REMAND wit h instructions that the district court DISMISS this case as moot.