1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kenneth Daniel Tiedemann, Sr.,

Plaintiff,

v. 

Mary M Mitchell, et al.,

Defendants.

No. CV-17-00597-TUC-CKJ

ORDER 

On October 16, 2020, this Court granted Defendants Motion to Dismiss and entered 

Judgment for Defendants. The Court denied reconsideration, and Plaintiff appealed. On 

July 3, 2023, the United States Court of Appeals for the Ninth Circuit issued an Opinion 

affirming in part and reversing in part this Court’s decisions. The Mandate issued on 

August 25, 2023. Accordingly, the case is returned to the Court’s active docket. 

Plaintiff challenged a Bureau of Prisons (BOP) policy that places a 300-minute-permonth cap on phone calls. According to the appellate court, Plaintiff plausibly alleged 

claims under the First and Fifth Amendment interests in free association with family and 

others that survived the pleading stage. The appellate court affirmed this Court’s dismissal 

of Plaintiff’s claims for injunctive relief brought against two Defendants, former wardens,

as moot because Plaintiff was transferred to another facility. It reversed dismissal of the 

action against the Regional Director because Plaintiff challenged a regionally applicable 

policy. Most importantly, the appellate court explained the Court erred by dismissing the 

action without granting Plaintiff leave to amend to add his current warden as a coCase 4:17-cv-00597-CKJ Document 75 Filed 09/13/23 Page 1 of 5
- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

defendant. Pursuant to the appellate court’s directives on remand, the Plaintiff should be 

allowed to file a Second Amended Complaint to add the warden of the facility where he is 

now incarcerated, and the Warden and Regional Director should file an Answer.

On September 5, 2023, Plaintiff filed a Notice of Change of Address which reflects 

that he is no longer incarcerated; he was released on August 7, 2023. This short circuits the 

Court’s ability to follow the directives of the appellate court on remand. “A case becomes 

moot ‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable 

interest in the outcome.’” Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003) (quoting Clark 

v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir.2001)). The Court considers sua sponte 

whether Plaintiff’s release extinguishes his legal interest in an injunction because it would 

have no effect on him. See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir. 

2004) (citing Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.2002)). 

An inmate's release from prison while his claims are pending generally will moot 

any claims for injunctive relief relating to prison policies unless the suit is a class action. 

Preiser v. Newkirk, 422 U.S. 395, 402–03 (1975); Johnson v. Moore, 948 F.2d 517, 519 

(9th Cir.1991); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Plaintiff proceeds 

here for injunctive relief only. His damage claims under Bivens v. Six Unknown Named 

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), were dismissed pursuant to 

Ziglar v. Abbasi, 582 U.S. 120 (2017), because they arose in a new Bivens context and that 

there were special factors counseling hesitation in the expansion of Bivens. (Order (Doc. 

12) at 5; Order (Doc. 28) at 1 n.1), affirmed, Tiedemann v. Von Blanckensee, 72 F.4th 1001, 

1015 (9th Cir. 2023).

The Court is mindful of the appellate court’s admonition to not take a “whack-amole” approach to mootness. (Decision (Doc. 72-1) at 14.) As the appellate court did, this 

Court is guided by Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 2001). In Dilley, the court 

considered whether the case is “capable of repetition, yet evading review.” Roe v. Wade, 

410 U.S. 113, 125 (1973). This exception to the mootness doctrine applies when (1) the 

challenged action is too short in duration to be fully litigated prior to its expiration and (2) 

Case 4:17-cv-00597-CKJ Document 75 Filed 09/13/23 Page 2 of 5
- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

there is a reasonable expectation that the injury will occur again. Weinstein v. Bradford, 

423 U.S. 147, 149 (1975) (per curiam). Dilley's claim fell short because a claim of 

inadequate access to legal materials is not of short duration and, as the mirid of cases 

challenging access to prison law libraries demonstrated, these claims do not escape review. 

Dilley, 64 F.3d at 1368–69. The same can be said for Plaintiff’s First and Fifth Amendment 

claims challenging BOP’s 300-minute-per-month cap on phone calls. 

First, the duration of this challenged action is limited only by the length of 

incarceration. For example, Plaintiff’s action was filed in 2017 and dismissed on October 

16, 2020. There was ample time to resolve the claims, which remain pending only because 

Plaintiff successfully appealed the dismissal. The challenged act, the 300-minute-permonth cap on phone calls, is not short in duration. 

Second, like Dilley, the Plaintiff cannot demonstrate a reasonable expectation that 

he will be subjected again to the challenged policy. When Dilley was subjected to the 

challenged prison law library policy, he was classified at the highest level of risk but then 

transferred to a lower-level security institution. He would be reclassified to high risk and 

correspondingly subject to the challenged policy only if he were to commit a serious 

violation of prison rules. This was “too speculative” to prevent mootness. Id. at 1369 (citing 

Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985); see also Reimers v. Oregon, 863 

F.2d 630, 632 & n. 4 (9th Cir.1988) (plaintiff who had been released from prison had no 

reasonable expectation of return because such return would occur only if the plaintiff 

committed additional criminal acts). Plaintiff has no reasonable expectation of returning 

and being subjected to the 300-minute-per-month cap for phone calls because this would 

only occur if he committed additional criminal acts.

When Plaintiff brought this action, an injunction would have afforded him relief but 

now an injunction would not provide any effectual relief to him whatsoever. “The 

underlying concern is that, when the challenged conduct ceases such that there is no 

reasonable expectation that the wrong will be repeated, then it becomes impossible for the 

court to grant any effectual relief whatever to the prevailing party.” City of Erie v. Pap's 

Case 4:17-cv-00597-CKJ Document 75 Filed 09/13/23 Page 3 of 5
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A.M., 529 U.S. 277, 287 (2000) (internal citations and quotations omitted). If the parties 

cannot obtain any effective relief, any opinion about the legality of a challenged action is 

advisory. Id. An issue becomes moot “when the issues presented are no longer live or the 

parties lack a legally cognizable interest in the outcome.” Id., see also Arizonans for 

Official English v. Arizona, 520 U.S. 43, 68 n. 22 (1997) (explaining “requisite personal 

interest that must exist at the commencement of the litigation (standing) must continue 

throughout its existence (mootness)”) (internal citation and quotation omitted).

“The party asserting mootness has a heavy burden to establish that there is no 

effective relief remaining for a court to provide.” In re Palmdale Hills Property, LLC, 654 

F.3d 868, 874 (9th Cir.2011). If a case becomes technically moot, it may nevertheless be 

judiciable if one of three exceptions to the mootness doctrine applies: (1) where a plaintiff 

“would suffer collateral legal consequences if the actions being appealed were allowed to 

stand”; (2) where defendant voluntarily ceased the challenged practice; or (3) for “wrongs 

capable of repetition yet evading review.” Ctr. for Biological Diversity v. Lohn, 511 F.3d 

960, 964–66 (9th Cir.2007).

The Court calls for full briefing by the parties on whether the release of Plaintiff has 

rendered this action moot.

Accordingly,

IT IS ORDERED that the Clerk of the Court shall return this case to the Court’s 

active docket.

IT IS FURTHER ORDERED that within 21 days of the filing date of this Order, 

the Defendants shall file an opening brief addressing mootness.

/////

/////

/////

/////

/////

/////

Case 4:17-cv-00597-CKJ Document 75 Filed 09/13/23 Page 4 of 5
- 5 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IT IS FURTHER ORDERED within 21 days of Defendants’ filing their brief, the 

Plaintiff shall file a Response. Defendants may file a Reply within seven days of the filing 

date of the Response.

Dated this 12th day of September, 2023.

Case 4:17-cv-00597-CKJ Document 75 Filed 09/13/23 Page 5 of 5