Glenn C. Smith v. Secretary, Department of COrrections ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13848
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-00590-RH-GRJ
GLENN C. SMITH,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(February 12, 2015)
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Glenn Smith, a prisoner proceeding pro se, appeals the dismissal of his civil
rights lawsuit brought under 42 U.S.C. § 1983, after the district court concluded
that Smith did not have standing. On appeal, he argues that the district court
conflated the doctrines of standing and mootness, that he showed sufficient
evidence of future injury to confer standing, and that the district court should have
required the Secretary of the Florida Department of Corrections to show that it
would not continue its allegedly wrongful behavior.
I. BACKGROUND
Smith brought this § 1983 action against Kenneth Tucker, then Secretary of
the Florida Department of Corrections (“FDC”), in his official and individual
capacities, alleging that part of the FDC’s dental policy violated the Eighth
Amendment. 1 Smith alleged that part of his molar (“tooth #18”) broke while
eating in the prison dining hall in June 2012. The prison dentist, Dr. Kubik, x-
rayed the tooth and informed Smith that the remaining portion would have to be
extracted. Dr. Kubik told Smith that the tooth could be fixed with a crown, but that
such a procedure was unavailable in the prison. Smith refused to have the tooth
pulled. Instead, he filed suit.
In his complaint, Smith alleged that he needed, immediately, a crown for
tooth #18 to prevent the tooth from deteriorating to the point that it would have to
1
The district court later substituted Michael Crews, who had replaced Tucker as
Secretary, as defendant in his official capacity under Fed. R. Civ. P. 25(d).
2
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be extracted, rather than repaired, which would potentially cause him pain. Smith
further alleged that he had previously received an amalgam restoration on another
tooth at the prison and was now concerned that he might be forced to have that
tooth pulled, rather than repaired, should any future problems arise. The proper
treatment of these dental health needs, Smith alleged, was compromised by an
FDC policy or custom that denied the serious medical need for dental crowns. He
suspected, but was not certain, that it was a written policy. Smith alleged that the
repair of teeth with dental crowns was the standard within modern medical
practice, and that the policy denying that treatment violated his rights under the
Eighth Amendment. Smith’s complaint sought injunctive relief to compel the
prison to repair his tooth with a crown, declaratory relief that his civil rights had
been violated, costs of litigation, and nominal, compensatory, and punitive
damages.
In July 2013, the Secretary of the FDC moved to dismiss under Fed. R. Civ.
P. 12(b)(6), arguing that the FDC policy does permit crowns in certain situations,
but that Smith’s condition did not meet the policy’s requirements, and denying that
the FDC had acted with deliberate indifference toward Smith’s medical needs. 2
The district court dismissed the individual-capacity claim on qualified immunity
2
The FDC regulations provide: “Fixed prosthetics (crowns and bridges) are not to be
done except in unusual circumstances and only when an adequate restoration cannot be placed.”
Fla. Admin. Code r. 33-402.101(7)(d)(3).
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grounds and dismissed the official-capacity claim for damages on Eleventh
Amendment grounds. This left pending Smith’s claim for prospective injunctive
relief against Crews in his official capacity.
In January 2014, both parties moved for summary judgment. Smith alleged
that the FDC policy still denied crowns when they were needed. Notably, Smith’s
motion also stated significant new facts: namely, that he had been offered and had
consented to a restoration of tooth #18 by means of a filling, and that the
restoration “appears satisfactory at the present time.” Smith nonetheless
maintained that prospective injunctive relief was still necessary “for [his] future
medical needs for which a cast crown should be provided for any tooth where a
tooth might be saved from extraction by the placement of a crown . . . and [to]
preserve plaintiff’s previous dental work to achieve a correct bite[.]”
In his motion for summary judgment, the Secretary argued first that Smith’s
complaint was moot because he had received satisfactory treatment for tooth #18.
The Secretary next argued that Smith lacked standing for two reasons. First, Smith
lacked standing because tooth #18 had been fixed and there was no other injury in
fact that was attributable to the FDC’s dental crown policy. Second, Smith lacked
standing to pursue a claim premised on a possible future injury, because his claim,
based only on the possibility that he might damage another tooth that would then
require a crown, was speculative. The Secretary also argued that Smith had not
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properly exhausted his available administrative remedies because prior to filing his
action, he did not file a petition to initiate rulemaking to alter the FDC official rule
on crowns. Finally, the Secretary argued that Smith had failed to state a valid
claim under the Eighth Amendment because he had not demonstrated either that he
had a sufficiently serious medical need or that the FDC had acted with deliberate
indifference.
The district court dismissed Smith’s claim for lack of standing. Assuming
for purposes of the motion that the FDC had a custom or policy to extract teeth that
could otherwise be crowned, that the policy was unconstitutional, and that, in an
appropriate case, an injunction could be issued to correct the violation, the district
court held that there was no reason to believe that Smith had suffered any injury or
would suffer injury in the future as a result of the policy. The district court denied
all other pending motions.
Smith filed a motion to alter or amend the judgment, citing a statement from
another prison dentist, Dr. Greenberg, that the tooth that had been repaired prior to
the incident involving tooth #18 would fail at some future point and thus that there
was a threat of future injury. Smith further argued that the district court had
conflated the doctrines of standing and mootness and that he had not lost standing
just because tooth #18 had been repaired. The district court denied the motion,
concluding that it had dismissed the case as moot and for lack of standing because
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Smith’s claim of future injury did not demonstrate a sufficient likelihood that
Smith would suffer the same mistreatment in the future. 3 Smith appealed.
II. ARGUMENTS ON APPEAL
On appeal, Smith repeats his argument that the district court conflated the
doctrines of standing and mootness. He contends that standing was not lost by the
satisfactory repair of tooth #18 because he still had a valid claim for injunctive
relief based on the likelihood of future injury. Smith also argues that his case was
not moot because the Secretary could not moot the case simply by ceasing the
conduct at issue, and the district court never required the Secretary to prove that
the allegedly wrongful behavior could not reasonably be expected to recur.
In response, the Secretary argues, as he did below, that Smith’s allegation
that the FDC’s dental crown policy violated the Eighth Amendment was mooted
once tooth #18 was repaired. He also argues that, because Smith’s claim for
prospective injunctive relief is speculative—Smith cannot say with certainty if or
when he will require future dental work—it cannot confer standing. Finally, the
Secretary argues that Smith had not exhausted the available administrative
remedies in seeking to have the FDC’s rule altered, as required by 42 U.S.C. §
1997e(a).
3
The original order stated the grounds for dismissal as lack of standing. This is
reiterated in the order denying the motion to alter the judgment, but there is also the statement,
perhaps mistaken, that the case had been dismissed as moot.
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In reply, Smith repeats that Dr. Greenberg had stated that the previously
repaired tooth would likely require future work, and therefore the district court
could provide meaningful relief. Smith further argues that he had satisfied the
exhaustion requirement by complying with prison grievance procedures. Finally,
he argues that the Secretary had waived the argument by not raising it earlier, and
that the relief he sought could be granted to him without amending the FDC dental
rule.
III. LEGAL STANDARDS
We review de novo questions concerning subject-matter jurisdiction,
including mootness, standing, and ripeness. Elend v. Basham, 471 F.3d 1199,
1204 (11th Cir. 2006); Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d
1320, 1328 (11th Cir. 2004).
An issue is moot when it no longer presents a live controversy with respect
to which the court can give meaningful relief. Stated another way, when events
subsequent to the commencement of a lawsuit create a situation in which the court
can no longer give the plaintiff meaningful relief, the case is moot and must be
dismissed. Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab.
Servs., 225 F.3d 1208, 1217 (11th Cir. 2000). While a defendant cannot moot a
case simply by voluntarily ending the challenged practice, we often give
government actors more leeway than private parties in the presumption that they
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are unlikely to resume illegal activities, but only after the government actor has
shown unambiguous termination of the complained-of activity. Doe v. Wooten,
747 F.3d 1317, 1322 (11th Cir. 2014).
Standing requires the plaintiff to show injury in fact, causation, and
redressability. Elend, 471 F.3d at 1205. In order to satisfy the injury-in-fact
requirement of standing, a plaintiff need not wait for an injury to occur, “so long as
the alleged injury is imminent or real and immediate and not merely conjectural or
hypothetical. An injury is imminent if it is likely to occur, and likely to do so
immediately.” 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003)
(quotations and citations omitted). Immediacy requires that the anticipated injury
occur within some fixed period of time in the future. Fla. State Conference of
N.A.A.C.P. v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008).
Even if the plaintiff shows immediacy, there still must be a substantial
likelihood of future injury, meaning that the threatened future injury must pose a
realistic danger and cannot be merely hypothetical or conjectural. Id. Where
future injury depends on either the random or unauthorized acts of a third party, the
plaintiff’s claim is too speculative to satisfy standing requirements. 31 Foster
Children, 329 F.3d at 1266. However, when the threatened acts are authorized or
part of a policy, it is significantly more likely that the injury will occur again. Id.
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The party invoking federal jurisdiction bears the burden of establishing these
elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the
pleading stage, general factual allegations may suffice; at the summary judgment
stage, the plaintiff must set forth specific facts supported by affidavit or other
evidence. Id. at 561.
The doctrine of standing tends to converge with the doctrine of ripeness
where a plaintiff seeks pre-enforcement review, since such claims involve the
possibility of wholly prospective future injury. Elend, 471 F.3d at 1205, 1210–11.
The ripeness inquiry requires determining (1) the fitness of the issues for judicial
decision and (2) the hardship to the parties of withholding court consideration.
Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (per
curiam). A plaintiff’s challenge to a governmental act will only be ripe for judicial
review if the plaintiff shows that he has sustained, or is in immediate danger of
sustaining, a direct injury as a result of that act. Id. In the context of the Eighth
Amendment, claims are generally not ripe until the imposition, or immediately
impending imposition, of a challenged punishment. Cheffer v. Reno, 55 F.3d 1517,
1523–24 (11th Cir. 1995).
IV. APPLICATION AND DISCUSSION
Smith concedes that tooth #18 seems to have been satisfactorily repaired.
There is therefore no live controversy involving tooth #18, and the issue is moot.
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Fla. Ass’n of Rehab. Facilities, 225 F.3d at 1217. Although Smith argues that the
district court should have required the Secretary to prove that the allegedly
wrongful behavior could not reasonably be expected to return, he never contended
that the FDC would resume its extraction policy toward tooth #18, nor that the
FDC had taken harmful action toward any of his other teeth.
The district court also determined that Smith lacked standing to bring a
claim based on possible future injuries to other teeth. The record supports the
district court’s conclusion. Smith alleged that although Dr. Greenberg had told
him at the time it was done that the amalgam restoration was not expected to work,
the restoration has so far not failed. Smith believed that this comment meant that
the restoration could be expected to fail “at any time.” Smith, however, provided
no evidence to support his belief that the restoration would fail within some fixed
period of time. Indeed, Smith’s complaint makes clear that this was merely
Smith’s conjecture. 4 Because Smith’s alleged future harm is indeterminate, rather
than immediate, the district court correctly held that he lacked standing. See Fla.
State Conference of N.A.A.C.P., 522 F.3d at 1161.
4
“Fortunately, the amalgam restoration that Dr. Greenberg provided at that time saved
plaintiff’s tooth at issue to date, but that tooth, too, is at issue in this complaint for that repair was
not given an expectation by the dentist to even work at that time and plaintiff believes that it is a
tribute to Dr. Greenberg’s skill that it has held to date, but that a crown should be provided by
the FDC when this amalgam restoration finally does fail as it is expected to do at any time.” Dr.
Greenberg’s skepticism about the initial likelihood of success of the repair does not imply an
opinion that it is likely to fail in the future.
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Smith’s complaint did allege a written policy or custom of the FDC under
which the FDC extracted teeth that could otherwise be saved. Smith later
acknowledged that he had been made aware of the FDC regulation allowing use of
a crown if an adequate restoration could not be done, but he still maintained that
the FDC unnecessarily extracts repairable teeth. An allegation of a policy or
custom does make it more likely that a future injury will occur. 31 Foster
Children, 329 F.3d at 1266. However, Smith’s claim is too conjectural to confer
standing, because the future injury he apprehends would only arise if (1) Smith’s
tooth restoration would fail, despite having worked for years without problems; (2)
the FDC would order the prison dentists to extract teeth unnecessarily, in
contradiction to the FDC regulation; (3) the dentist would extract the tooth, rather
than repairing it; and (4) the extraction would be unnecessary under the
circumstances. Cf. Fla. State Conference of N.A.A.C.P., 522 F.3d at 1162. This
makes Smith’s claim too speculative to confer standing. See id.; see also City of
Los Angeles v. Lyons, 461 U.S. 95, 97–98, 111 (1983) (plaintiff who had been
placed in a chokehold during a traffic stop by police lacked standing to seek
injunctive relief to prevent future chokeholds because “there is no showing of any
real or immediate threat that the plaintiff will be wronged again . . .”); Malowney v.
Fed. Collection Deposit Grp., 193 F.3d 1342, 1347 (11th Cir. 1999) (plaintiffs
denied declaratory relief because they could not show that their bank account funds
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would likely be subject to garnishment in the future under allegedly
unconstitutional garnishment statute).
For these same reasons, Smith has no ripe claims. His teeth have not been
pulled, nor have his restorations failed. Even if the FDC’s policy were contrary to
the Eighth Amendment, Smith has sustained no injury from it and faces no
immediate danger of injury from it. As Smith has no teeth in immediate danger of
being extracted, he faces no hardship in the withholding of consideration of his
claim, and his claims are therefore unripe. See Nat’l Adver. Co., 402 F.3d at 1339.
V. CONCLUSION
Here, Smith’s claim that he required placement of a crown on his molar was
moot once the tooth was fixed. Fla. Ass’n of Rehab. Facilities, 225 F.3d at 1217.
His prospective claims for future medical needs were not sufficient to confer
standing for they were not immediate and remained too speculative. See Fla. State
Conference of N.A.A.C.P., 522 F.3d at 1161. For the same reason, Smith has not
sustained an injury that is ripe for review. Nat’l Adver. Co., 402 F.3d at 1339.
Accordingly, we affirm.
AFFIRMED.
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