Brown v. Warden, Warden, USP-Florence

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 6, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
B RIA N L. B RO WN ,
Petitioner - A ppellant,
v. No. 06-3154
(D. Kansas)
W ARDEN, W arden, USP-Florence, (D.Ct. No. 06-cv-3069-RDR)
Respondent - Appellee.
____________________________
OR D ER DISM ISSING APPEAL
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Brian L. Brow n is a prisoner incarcerated in the U nited States Penitentiary
in Florence, Colorado. On M arch 6, 2006, he filed a pro se petition seeking a
“W rit of Assistance for [a] W rit of Habeas Corpus A d Testificandum” pursuant to
28 U.S.C. §§ 1651 and 2241 in the United States District Court for the District of
Kansas. He requested a court order requiring federal prison officials to transport
him to appear in Kansas state court on M ay 18-19, 2006, concerning the
termination of Brown’s parental rights. See In interests of Alysa Frakes, Brow n
County District Court, No. 04-JC-6. 1 On M arch 28, 2006, the district court
granted Brown leave to proceed in form a pauperis and dismissed the action
without prejudice. The district court determined he was not entitled to a writ of
habeas corpus ad testificandum or a writ of mandamus concerning any federal
officials in his state civil matter pursuant to §§ 1651 and 2241, and further held
the court’s mandamus authority did not extend to state officials.
Brown then filed a M otion for Reconsideration on April 14, 2006, which
the district court considered under Rule 60(b) of the Federal Rules of Civil
Procedure, reiterating his arguments. 2 The district court denied the motion and
Brown appealed on M ay 22, 2006, and then filed a “M otion for Stay Pending
Review ‘Emergency,’” on M ay 23, 2006. Noting the date of the state hearing had
passed, we issued an order requiring Brown to show cause in writing by July 14,
2006, why his appeal should not be dismissed as moot. W e received his response
on August 21, 2006 but the certificate of service indicated it was placed in the
1
Brown claims his presence was required to argue the transfer of custody should
be to his relatives, but he failed to present any evidence that he utilized the numerous
procedural safeguards afforded by Kansas law to achieve his goals. See K AN. S TAT.
A NN. § 38-1582(d) (appointment of an attorney for any parent who fails to appear), § 38-
1553 (stipulations), § 38-1559 (notice), § 38-1584 (preference for placement with willing
relatives upon termination of parental rights), and § 38-1591 (appeal).
2
A Motion for Reconsideration filed more than ten days after entry of judgment is
generally construed as a motion for relief under Rule 60(b). Weitz v. Lovelace Health
Sys., Inc., 214 F.3d 1175, 1178 (10th Cir. 2000).
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mail system of July 11,2006. The postmark was dated August 15, 2006. W e then
ordered Brown to explain the discrepancy and if he attributed the delay to prison
authorities, to file a grievance and submit copies of the grievance with his
response. Although Brown was ordered to respond by October 27, 2006, we did
not receive his reply until October 31, 2006. Brow n’s submission, however,
contained sufficient justification for the delay in both his initial tardiness and the
lateness of his current filing . Brown also asked for an extension of time to
receive and file the administrative resolution of his grievance. The submission of
the ultimate resolution is not necessary, as we will consider his response to our
initial Order to Show Cause.
“A case is moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.” Hain v. M ullin, 327
F.3d 1177, 1180 (10th Cir. 2003) (quotations omitted). Brown’s reply concedes
the hearing was held on June 6, 2006. Brown’s only argument is that “a motion
for a new hearing is being filed in this matter.” (Response at 2.) Brown does not
allege the motion was actually filed nor does he mention further matters pending
in this case in his later pleading. Under the circumstances presented here, Brown
can no longer benefit from a ruling in his favor. Lewis v. Cont’l Bank Corp., 494
U.S. 472, 477 (1990) (noting that the party seeking relief “must have suffered, or
be threatened with, an actual injury . . . likely to be redressed by a favorable
judicial decision”); Aragon v. Shanks, 144 F.3d 690, 692 (10th Cir. 1998)
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(concluding case was moot because a favorable decision would not shorten
petitioner’s probation period). Brown’s lack of response to our Order to Show
Cause w aives any argument that his claim remains “live” either because an injury
will be redressed by a favorable decision or his case falls within the “‘capable of
repetition, yet evading review’ exception to the mootness doctrine.” Hain, 327
F.3d at 1180 (“[F]or this exception to apply, two prerequisites must be satisfied:
(1) the duration of the challenged action must be too short to be fully litigated
prior to its cessation or expiration; and (2) there must be a reasonable expectation
that the same complaining party will be subjected to the same action again.”).
This action is moot. The appeal is DISM ISSED.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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