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SH

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

Plaintiff Kenneth Daniel Tiedemann, Sr., who is currently confined in the Federal 

Correctional Institution (FCI) in Herlong, California, brought this civil rights action

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 

U.S. 388 (1971). Defendants have filed a Motion to Dismiss for lack of jurisdiction. (Doc. 

52). Plaintiff was informed of his rights and obligations to respond (Doc. 53), and he 

opposes the Motion. (Doc. 55.) Also before the Court are Plaintiff’s Motion for Leave to 

File Excess Pages (Doc. 54), Motion for Preliminary Injunction (Doc. 56), and Motion for 

Status Update (Doc. 60). 

I. Background

On April 9, 2019, Plaintiff, who was then confined in the United States Penitentiary 

(USP)-Tucson, filed a six-count First Amended Complaint (Doc. 10), asserting claims 

under the Fifth Amendment’s Due Process and Equal Protection Clauses. In a July 26, 

2018 Order (Doc. 12), the Court dismissed the First Amended Complaint and this action 

for failure to state a claim. Plaintiff sought review in the Ninth Circuit Court of Appeals, 
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and in a September 23, 2019 memorandum disposition, the Ninth Circuit affirmed the 

dismissal of Plaintiff’s equal protection claim for injunctive relief but vacated the dismissal 

of his due process claim for injunctive relief and remanded the case to this Court for further 

proceedings. See Tiedemann v. Mitchell, No. 18-17112, Doc. 12 (9th Cir. Sept. 23, 2019). 

The Ninth Circuit stated that, “[o]n remand, the district court may also wish to consider 

whether, liberally construing the operative complaint, Tiedemann alleged a First 

Amendment freedom of association claim.” Id., Doc. 12 at 2-3.

On remand, the Court determined that Plaintiff stated First Amendment freedom of 

association and Fifth Amendment substantive due process claims for equitable relief

against Defendants Federal Bureau of Prisons (BOP) Regional Director Mary M. Mitchell, 

USP-Tucson Warden J.T. Shartle, and FCI-Mendota Warden Rafael Zuniga in their official 

capacities based on their alleged failure to increase his telephone minutes so that he could 

communicate with his sons. (Doc. 28 at 7; Doc. 38 at 2.) The Court ordered these 

Defendants to respond to the First Amended Complaint. (Doc. 28 at 7.) Subsequently, 

BOP Regional Director Gene Beasley was substituted for Defendant Mitchell, USPTucson Warden B. von Blanckensee was substituted for Defendant Shartle, and FCIMendota Warden Scott Young was substituted for Defendant Zuniga. (Doc. 45.)

Defendants now move to dismiss the First Amended Complaint pursuant to Federal 

Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 52.)

II. Federal Rule of Civil Procedure 12(b)(1)

Rule 12(b)(1) allows a defendant to raise the defense that the court lacks jurisdiction 

over the subject matter of an entire action or of specific claims alleged in the action. When 

considering a motion to dismiss for lack of subject matter jurisdiction, the Court takes as 

true the allegations outlined in the complaint. Whisnant v. United States, 400 F.3d 1177, 

1179 (9th Cir. 2005). But the Court is not restricted to the face of the pleadings; it may 

consider affidavits to resolve any factual disputes concerning the existence of jurisdiction. 

McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). If a defendant files a Rule 

12(b)(1) motion attacking the existence of subject-matter jurisdiction, the plaintiff bears 
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the burden of proving that jurisdiction exists. Thornhill Publ’g Co. v. Gen. Tel. & Elecs. 

Corp., 594 F.2d 730, 733 (9th Cir. 1979).

Under Article III of the Constitution, the jurisdiction of a federal court depends on 

the existence of a “case or controversy.” GTE Cal., Inc. v. Fed. Commc’ns Comm’n, 

39 F.3d 940, 945 (9th Cir. 1994). “[A] case becomes moot when the issues presented are 

not longer live or the parties lack a legally cognizable interest in the outcome.” Pub. Utils. 

Comm’n of State of Cal. v. F.E.R.C., 100 F.3d 1451, 1458 (9th Cir. 1996) (internal 

quotation marks and citation omitted). When a question before the court has been mooted 

by changes in circumstances after the complaint is filed, there is no justiciable controversy. 

Flast v. Cohen, 392 U.S. 83, 95 (1968). 

Questions of mootness regarding injunctions are viewed “in light of the present 

circumstances.” Mitchell, 75 F.3d at 528. “[A] suit for injunctive relief is normally moot 

upon the termination of the conduct at issue.” Demery v. Arpaio, 378 F.3d 1020, 1025-

1026 (9th Cir. 2004). Thus, if a prisoner is no longer subjected to prison officials’ allegedly 

unlawful activity, the complaint for injunctive relief becomes moot. Wiggins v. Rushen, 

760 F.2d 1009, 1011 (9th Cir. 1985). A party seeking dismissal on mootness grounds bears 

a heavy burden. Coral Constr. Co. v. King Cnty., 941 F.2d 910, 927-28 (9th Cir. 1991). 

A case becomes moot only “if subsequent events make it absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. 

v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (emphasis added). 

Because a mootness defense equates to a lack of subject-matter jurisdiction defense 

under Federal Rule 12(b)(1), when considering a motion to dismiss on mootness grounds, 

the Court is “free to weigh the evidence and satisfy itself as to the existence of its power to 

hear the case” so long as the evidence it considers does not implicate the merits of the 

underlying claim. Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003).

III. Discussion

Defendants argue that Plaintiff lacks standing because the injunctive relief he seeks 

cannot be granted by the named Defendants. (Doc. 52 at 7–8.) To have Article III standing, 
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the following elements must be met: (1) the alleged injury must be “actual or imminent, 

not conjectural or hypothetical,” (2) there must be a causal connection between the alleged 

injury and the conduct complained of, and (3) it must be “likely, as opposed to speculative, 

that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). Defendants 

challenge the third element.

According to BOP policy, prisoners get 300 minutes of telephone time per month, 

but the Warden of each BOP facility has discretion to grant additional telephone time to 

prisoners at that Warden’s particular facility, if the Warden determines that there is good 

cause. (See Doc. 10 at 7, ¶ 14.)1 As previously mentioned, Plaintiff is currently confined 

at FCI-Herlong. The FCI-Herlong Warden is not a party to this action, and Defendants are 

not employed at FCI-Herlong. BOP policy makes it clear that only the FCI-Herlong 

Warden is authorized to increase Plaintiff’s telephone minutes at that facility. Thus, it does 

not appear that Defendants can grant the requested injunctive relief. See Hartmann v. Ca. 

Dep’t of Corrections, 707 F.3d 1114, 1127 (9th Cir. 2013) (stating that a plaintiff seeking 

injunctive relief must “identify the law or policy challenged as a constitutional violation 

and name the official within the entity who can appropriately respond to injunctive relief”). 

In his response, Plaintiff seems to concede that Defendants von Blanckensee and 

Young cannot grant the requested injunctive relief, but Plaintiff argues that “[i]t seems 

plain as day that the Regional Director has authority to take action.” (Doc. 55 at 16.)2 But, 

this is purely speculative. The policy clearly states that Plaintiff’s current Warden is 

responsible for granting additional telephone minutes. Nowhere in the policy does it 

1 See BOP Program Statement 5264.08 at p. 9, https://www.bop.gov/policy/

progstat/5264_008.pdf (“Inmates . . . are limited to 300 minutes per calendar month. . . . 

Inmates who exhaust their 300 minute limitation may be provided additional minutes, at 

the Warden’s discretion, for good cause.”) (last visited Oct. 13, 2020).

2 To the extent Plaintiff seeks leave to file an amended complaint to add the BOP 

and/or the FCI-Herlong Warden as Defendants (see Doc. 55 at 18–19), this request is 

denied. This action has been pending for nearly 3 years. Plaintiff has had ample time to 

file an amended complaint and to add parties. Amending the complaint at this late stage 

of the proceedings would cause undue delay. 
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authorize Defendant Beasley as Regional Director to make such a decision, and Plaintiff 

has not shown otherwise. Accordingly, Plaintiff has failed to satisfy the redressability 

element to show standing, and the Court will dismiss the First Amended Complaint 

pursuant to Rule 12(b)(1).3

IT IS ORDERED:

(1) Plaintiff’s Motion for Leave to File Excess Pages (Doc. 54) is 

GRANTED, and the Clerk of Court must file Plaintiff’s Lodged Proposed 

Response (Doc. 55).

(2) Defendants’ Motion to Dismiss (Doc. 52) is GRANTED, and this 

action and the First Amended Complaint (Doc. 10) are DISMISSED under

Rule 12(b)(1) as discussed herein.

(3) Plaintiff’s Motion for Preliminary Injunction (Doc. 56) is DENIED 

AS MOOT. 

(4) Plaintiff’s Motion for Status Update (Doc. 60) is GRANTED to the 

extent this Order informs Plaintiff of the status of this case.

(5) The Clerk of Court shall enter judgment accordingly.

Dated this 14th day of October, 2020.

3 The Court will not address Defendants’ Rule 12(b)(6) argument.