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 briefs), Doerner, Saunders,

Daniel and Anderson Tulsa, Oklahoma, for Plaintiff-Appellant.

Kay Sewell, Assistant United States Attorney (Patrick M. Ryan, United States

Attorney, with her on the brief), Oklahoma City, Oklahoma, for DefendantAppellee.

Before EBEL, BRISCOE, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

In August 1994, while incarcerated in a federal facility, Johnnie Louis

McAlpine (“McAlpine”), a member of the Native American Church, brought a pro
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se action in federal court under the First Amendment 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 judgment. McAlpine appeals. We

hold that McAlpine’s subsequent release from federal prison on supervised

release moots his claims, thereby depriving us of jurisdiction. Accordingly, we

VACATE the district court’s order and REMAND with instructions to DISMISS.

BACKGROUND

According to the pleadings, McAlpine is a restricted 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 for mail fraud. McAlpine’s

petition for mandamus, the denial of which is the subject of the present appeal,

alleged that Warden Thompson’s refusal to provide peyote for Native American

Church services violated his rights under the First Amendment and the RFRA, and

prayed for the following prospective mandamus relief: “1) . . . the Court to order
1Because he was incarcerated at the time he filed this action, McAlpine

made no claim that supervised release guidelines prohibit use of peyote, or, if so,

that such a prohibition violates the First Amendment or RFRA. His claim related

solely to the conditions of his confinement at El Reno.

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Warden Thompson to provide peyote for the Native American Church

Ceremonies. 2) . . . plaintiff requests that the Court orders the Warden to provide

the necessary items needed for the Native American Churches [sic] evening

through noon services once a month (to include meals, peyote, tipi, and outside,

visiting, roadmen, firemen and singers).”

The magistrate judge considered the merits of McAlpine’s claim and found

that the Warden’s denial of peyote and other ceremonial items to McAlpine did

not violate the First Amendment or RFRA, and thus recommended 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 granted 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 conditions 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
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district court’s order and REMAND to the district court with instructions to

DISMISS McAlpine’s petition as moot.

DISCUSSION

Mootness

Before reaching the merits of McAlpine’s First Amendment and RFRA

claims, we must consider the jurisdictional question of mootness. Warden

Thompson argues that McAlpine’s claims are moot because the only relief sought

by McAlpine “deal[s] with desires during his incarceration,” and he is no longer

incarcerated. McAlpine responds that because he “remains on supervised release

(parole) through November 1, 1999” and “he is subject 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 whether 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 affirmative.

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 injunctive relief mooted by inmateplaintiff’s release on parole because possibility of parole revocation “is too

speculative” to come under the “capable of repetition, yet evading review”
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exception), with McKinney 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 transfer to pre-parole status

because “[e]ven as a parolee, circumstances may result 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 claims for injunctive relief mooted

by his release from prison where there was no indication that plaintiff was still on

parole or supervised release following release). Today, we hold that when an

inmate’s claim for prospective injunctive relief regarding conditions of

confinement becomes moot due to the inmate-plaintiff’s release from

confinement, the inmate’s parole or supervised release status does not, absent

some exceptional showing, bring that claim under the narrow “capable of

repetition, yet evading review” exception to the mootness doctrine.

While our holding comports with the teachings of Green and White, we are

aware that McKinney, which involved a somewhat similar factual scenario to the

present case, supports a different result. In McKinney, 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 bag[] and to permit the
2Nothing in McKinney indicates whether “pre-parole” status was equivalent

to the “supervised release” status of McAlpine or whether it involved a greater

degree of prison supervision or likelihood of reincarceration. However, four

years after McKinney, we observed that “pre-parole” is a statutory program in

Oklahoma which “releases qualified inmates into society on a conditional basis.” 

Harper v. Young, 64 F.3d 563, 565 (10th Cir. 1995). Typical conditions include

pre-parolee agreement to: random searches or visits from law enforcement

officers; report to probation officer at frequent intervals; travel limitations and

curfews; drug and alcohol prohibitions; random urine 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.

3We have circulated this opinion to the entire court and have received the

concurrence of all its active judges for our holding overruling McKinney to the

extent that McKinney held that the pre-parole, parole, or supervised release status

of a former inmate seeking injunctive relief relating only to prison conditions

saves that claim from dismissal on mootness grounds.

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construction of a sweat lodge at the correctional facility.” 952 F.2d at 351. The

state claimed that McKinney’s case was mooted by his release from prison and his

status as a pre-parolee2

. This court disagreed, holding that McKinney’s injunctive

claims as well as his damages claims survived his change in status from prisoner

to pre-parolee, because “circumstances may result 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.” Id. at 351.

We perceive some tension between McKinney and our subsequent cases of

Green and White, and to the extent that there is a conflict, the en banc court now

overrules McKinney and adopts the rule articulated in Green and White.

3
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A number of factors support departure from McKinney. First, under wellestablished Supreme Court and Tenth Circuit law, when a favorable decision will

not afford plaintiff relief, and plaintiff’s case is not capable of repetition yet

evading review, we have no jurisdiction under Article III. The Tenth Circuit has

said that “Article III’s requirement that federal courts adjudicate only cases and

controversies necessitates that courts decline to exercise 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 of 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 ‘plaintiff cannot maintain a

declaratory or injunctive action unless he or she can demonstrate a good chance of

being likewise injured [by the defendant] in the future.’” Id. at 1349 (quoting

Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991)) (alteration in original); see

also City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (“[T]he capable-ofrepetition doctrine applies only in exceptional situations, and generally only

where the named plaintiff can make a reasonable showing that he will again be

subjected to the alleged illegality.”). 
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As the Supreme Court explained in O’Shea v. Littleton, 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’Shea Court 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 existing 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 exception to the mootness

doctrine applies only “where the following two circumstances [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 original)

(quotations and citations omitted). In a mootness issue similar to the one

presented here, the Spencer Court held: 

Petitioner’s case satisfies neither of these conditions. He has not

shown (and we doubt that he could) that the time between parole

revocation and expiration of sentence is always so short as to evade

review. Nor has he demonstrated a reasonable likelihood that he will

once again be paroled and have that parole revoked.
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Id. Finally, in Honig v. Doe, 484 U.S. 305, 320 (1988), the Court emphasized

that “for purposes of assessing the likelihood that state authorities will reinflict a

given injury, we generally have been unwilling to assume that the party seeking

relief will repeat the type of misconduct that would 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 demonstrates why the

hypothetical possibility that McAlpine, a former inmate on supervised release,

will violate the terms of that supervised release and be returned to the same

prison and same conditions of confinement cannot save an otherwise moot claim

for prospective injunctive relief relating to prison 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 in his present condition provide

the prospective injunctive relief he seeks — i.e., an order compelling Warden

Thompson to provide him with peyote and other Native American Church

ceremonial items. Second, McAlpine has failed to establish 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) if
4At oral argument, counsel for Warden Thompson informed this court that

if McAlpine violated any conditions of his supervised release and was returned to

incarceration it is unlikely that he would be returned to El Reno because that

facility is an honor camp.

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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 peyote,

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 with peyote and other

ceremonial religious items. As such, McAlpine’s case is moot and it does not fall

into the exceptional class of cases capable of repetition, yet evading review. We

believe McAlpine’s situation is typical, and thus we conclude that the controlling

mootness cases counsel against McKinney.
5The Seventh Circuit has issued somewhat conflicting opinions on this

issue. In Morales v. Schmidt, 489 F.2d 1335 (7th Cir. 1974), the Seventh Circuit

held that appellant’s claim for an injunction prohibiting Wisconsin state officials

from restricting correspondence between Morales and his wife’s sister was not

moot even though Morales achieved parole status after filing his suit because: (1)

as a parolee, Morales was still in the custody of the Wisconsin correctional

system and still subject to conditions imposed by the 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 parole 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 release 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 affected Morales’ then-current

parole status. By contrast, here, since McAlpine is no longer incarcerated at El

Reno, no order from this court could presently provide 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, that rationale was necessarily

subsumed in the more immediate relief Morales sought. Seventh Circuit opinions

since Morales have held that inmate claims against prison officials for prospective

injunctive relief are mooted by the inmate’s transfer to another facility in the

absence of a demonstration of the likelihood of retransfer (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.).

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Second, other than (arguably) the Seventh Circuit,5 our research indicates

that every circuit to consider the issue has decided that release to parole moots a

claim regarding prison conditions 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
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released on parole and are no longer confined at WMCC, their claims [for

equitable relief] are moot.” (citing Martin v. Sargent, 780 F.2d 1334, 1337 (8th

Cir. 1985) (ordinarily claim “to improve prison conditions 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 request for preliminary and

permanent injunctive relief is moot.”); Dorman v. Thornburgh, 955 F.2d 57, 58

(D.C. Cir. 1992) (“Dorman has been paroled since noting this appeal. 

Consequently, his plea for injunctive relief is now moot.”); Gillespie v. Crawford,

858 F.2d 1101, 1103 (5th Cir. 1988) (en banc) (“Gillespie 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 moot 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 moot. . . . Because Winsett has

now received a conditional parole, is no longer subject to Delaware’s jurisdiction,

and shows no interest in returning . . . .”); see also 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 concerning prison conditions or

regulations, and is subsequently paroled, the claims are moot.”); McKinnon v.

Talladega County, Ala., 745 F.2d 1360, 1363 (11th Cir. 1984) (“The general rule
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is that a prisoner’s transfer or release from a jail moots his individual claim for

declaratory and injunctive relief.”).

Third, and related to the O’Shea Court’s assumption that citizens “will

conduct their activities within the law and so avoid 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 thereby avoid a return to

segregation status.”) Such speculation would undermine the presumption of

innocence in our criminal justice system, and the rehabilitative 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 with instructions that

the district court DISMISS this case as moot.