James Elton Roberts v. Secretary, Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12289
Non-Argument Calendar
____________________
JAMES ELTON ROBERTS,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
M. MILLER,
Chaplain,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 1 of 14

-- 1 of 14 --

2 Opinion of the Court 23-12289
D.C. Docket No. 3:22-cv-00575-MMH-JBT
____________________
Before N EWSOM, BRANCH, and A NDERSON , Circuit Judges.
PER CURIAM:
James Roberts sued the Florida Department of Corrections
(“FDC”) and Chaplain Marcus Miller (collectively, the “FDC
defendants”), alleging that they improperly removed him from the
Religious Diet Program (“RDP”) in violation of his First
Amendment rights and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). The district court
dismissed Roberts’s amended complaint as moot because the FDC
defendants had placed him back in the RDP after he sued. On
appeal, Roberts argues that his claim was not mooted because of
his pending request for costs.
After careful review, we conclude that the district court
erred in dismissing Roberts’s case as moot because an exception to
the mootness doctrine, which arises when a defendant voluntarily
ceases its allegedly illegal conduct, applies to Roberts’s case.
Accordingly, we vacate and remand the district court’s decision.
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 2 of 14

-- 2 of 14 --

23-12289 Opinion of the Court 3
I. Background1
At one point while in the custody of the FDC, Roberts
participated in the RDP and received kosher meals consistent with
his Jewish faith. On July 15, 2021, Roberts received a notice of
violation “for no reason.” He promptly responded to the notice on
July 23, 2021, but received another violation form stating that he
never responded to the initial notice, was withdrawn from the
program, and could reapply on January 23, 2022.
Roberts reapplied on January 23, 2022. He sent a request
two days later asking about his status and received a response
stating, “approval in process[,] allow 10 days.” Roberts then
received a letter on February 2, 2022, explaining that he was denied
participation in the RDP on January 27, 2022, because he did not
properly describe the kosher diet, despite using the same
description from his previously approved application. Roberts
appealed the denial to the Secretary of the FDC and his appeal was
denied.
Roberts, proceeding pro se, sued the FDC defendants on May
25, 2022. On July 11, 2022, he filed his amended complaint alleging
violations of the First Amendment, pursuant to 42 U.S.C. § 1983,
and RLUIPA, 42 U.S.C. § 2000cc-1, by the FDC defendants. He
alleged that the FDC defendants improperly denied him
participation in the RDP for kosher meals. He said that, after
1 We draw the following facts from the allegations in Roberts’s complaint,
“which on a motion to dismiss are accepted as true.” Doe v. Wooten, 747 F.3d
1317, 1320 (11th Cir. 2014).
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 3 of 14

-- 3 of 14 --

4 Opinion of the Court 23-12289
reporting multiple times via formal and informal grievances that
“[his] food was being withheld and tampered with,” Roberts had
been on hunger strikes, reported “psychological emergencies,” and
attempted suicide, which were all “covered up,” presumably by
FDC employees. He also alleged that his property and paperwork
had been stolen, destroyed, or “lost” in an attempt (again,
presumably by FDC employees) to hinder his efforts “in these
proceedings.” For relief, he requested to be placed in the RDP and
that “all court costs be paid by the defendants including filing fees
and whatever other costs that result from [the] case.”
On July 27, 2022, after filing suit, Roberts submitted another
request to participate in the RDP. Miller forwarded the request to
his supervisor, writing, “I would really like your ‘take’ on this
particular application. This is the inmate who is pursuing a lawsuit
against me.” Less than thirty minutes later, his supervisor
responded, “Go ahead and approve it.” Miller then placed Roberts
in the RDP on July 29, 2022. Roberts formally started participating
in the RDP again on August 8, 2022.
In a signed declaration,2 Miller explained that he asked his
supervisor for guidance as “an independent decisionmaker” and
2 While Miller’s declaration is unsworn, it carries the same force as an affidavit
under 28 U.S.C. § 1746 because he signed and dated the document, and
“declare[d] under penalties of perjury that” the facts within “are true and
correct.” See Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 n.2 (11th Cir.
2016) (clarifying that “[a]n affidavit is made under oath,” while “a declaration
is not sworn, but is subject to the penalty of perjury” and that, under § 1746,
“declarations are afforded the same legal weight as affidavits, and are treated
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 4 of 14

-- 4 of 14 --

23-12289 Opinion of the Court 5
that the lawsuit against him did not influence his decision to
include Roberts in the RDP. Miller stated that “there is no intention
to remove [Roberts] from the [RDP],” and that Roberts would only
be removed from the program if he violated the rules.
Then, on September 14, 2022, the FDC defendants moved to
dismiss Roberts’s amended complaint. They argued that Roberts’s
suit had been moot “since August 8, 2022, when he was afforded
the relief he requested in his Amended Complaint due to his being
placed in the RDP.” They added that during a phone call with
opposing counsel on August 15, 2022, Roberts admitted that he was
in the RDP. The FDC defendants asked the district court to dismiss
the case with prejudice.
Roberts responded by arguing that the action was not
moot.3 He attached to his response various grievances and
accordingly” (alteration in original) (quotations omitted)); Roy v. Ivy, 53 F.4th
1338, 1348 (11th Cir. 2022) (“[U]nder § 1746, a declaration executed within the
United States will substitute for a sworn affidavit if the declarant dates and
subscribes the document as true under penalty of perjury in substantially the
following form: ‘I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date). (Signature).’”
(quoting 28 U.S.C. § 1746(2)).
3 Although Roberts argued this point in a motion to show cause, rather than a
response to the FDC defendants’ motion to dismiss, we still take note of his
argument. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys[.]”).
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 5 of 14

-- 5 of 14 --

6 Opinion of the Court 23-12289
responses from 2020 to 2022 showing that his attempts to be placed
in the RDP had been repeatedly rejected.
The district court determined that Roberts’s case was moot
because he had been placed in the RDP. It explained that although
a “narrow” exception to the mootness doctrine applies to injuries
that are capable of repetition yet evade review, that exception did
not apply to Roberts’s case (citing Al Najjar v. Ashcroft, 273 F.3d 1330,
1336 (11th Cir. 2001)). The court therefore concluded that Roberts
“failed to satisfy his burden of demonstrating that jurisdiction
exists” and dismissed his amended complaint without prejudice.4
This appeal followed.
II. Standard of Review
“A [d]istrict [c]ourt’s decision on mootness is a question of
law we review de novo.” Wooten, 747 F.3d at 1321–22 (italics added).
“[B]ecause the question of mootness is jurisdictional in nature,” we
may apply exceptions to the mootness doctrine sua sponte,
“regardless of whether the district court considered it or if the
4 The district court also found that Roberts’s request for punitive damages,
fees, and court costs did not save his case from mootness. It said that, even if
Roberts had properly requested such relief in the amended complaint, he was
“not a prevailing party who may recover court costs” because no “judicial
imprimatur on the change in the legal relationship between the parties”
occurred (quoting Smalbein v. City of Daytona Beach, 353 F.3d 901, 904–05 (11th
Cir. 2003)). Although the FDC defendants make this argument on appeal, we
need not evaluate it because we conclude that Roberts’s case is not moot under
the voluntary-cessation exception.
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 6 of 14

-- 6 of 14 --

23-12289 Opinion of the Court 7
parties briefed the issue.” Nat’l Advert. Co. v. City of Miami, 402 F.3d
1329, 1331–32 (11th Cir. 2005).
III. Discussion
On appeal, Roberts challenges the dismissal of his suit as
moot. After careful review, we conclude that the district court
erred in dismissing Roberts’s case as moot because it falls within
the voluntary-cessation exception to the mootness doctrine.
Article III of the Constitution limits federal courts to
deciding “Cases” and “Controversies.” U.S. Const. art. III § 2.
When an appeal does not present a case or controversy as to which
we can give meaningful relief, the appeal is moot and should be
dismissed. De La Teja v. United States, 321 F.3d 1357, 1362 (11th Cir.
2003). A case becomes moot “when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of
Health & Rehab. Servs., 225 F.3d 1208, 1216 (11th Cir. 2000)
(quotations omitted). A motion to dismiss based on mootness can
challenge jurisdiction in fact, irrespective of the pleadings, and a
district court can consider evidence outside the pleadings to
determine whether it has jurisdiction. Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990).
The district court considered the capable-of-repetition-yet-
evading-review exception to the mootness doctrine when it found
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 7 of 14

-- 7 of 14 --

8 Opinion of the Court 23-12289
that Roberts’s claims were moot.5 But we conclude that a different
exception to the mootness doctrine—the voluntary-cessation
doctrine—applies to Roberts’s case.
The voluntary-cessation exception may apply when a
defendant voluntarily ceases its allegedly illegal conduct. Doe, 747
F.3d at 1322 (“[W]hen a defendant chooses to end a challenged
practice, this choice does not always deprive a federal court of its
power to decide the legality of the practice.”). “A defendant
claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to
recur.” Id. (brackets omitted) (quoting Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)); Rich v.
Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 531 (11th Cir. 2013) (“Since
the defendant is free to return to his old ways, he bears a heavy
5 The Supreme Court and our Court have recognized a narrow exception to
the mootness doctrine where the original injury is “capable of repetition, yet
evading review.” Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170
(2016) (quotations omitted); Al Najjar, 273 F.3d at 1336 (explaining the
exception is a narrow one). To satisfy this standard, a plaintiff must
demonstrate (1) “a reasonable expectation or a demonstrated probability that
the same controversy will recur involving the same complaining party,” and (2)
that “the challenged action [was] in its duration too short to be fully litigated
prior to its cessation or expiration.” Al Najjar, 273 F.3d at 1336 (emphasis in
original) (quotations omitted).
Because we conclude that Roberts’s case is not moot under the voluntary-
cessation exception to mootness, we need not also address whether the
capable-of-repetition-yet-evading-review exception applies.
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 8 of 14

-- 8 of 14 --

23-12289 Opinion of the Court 9
burden of demonstrating that his cessation of the challenged
conduct renders the controversy moot.” (quotations omitted)).
The voluntary-cessation exception applies to cases involving
government actors. Doe, 747 F.3d at 1322. “Because of the unique
characteristics of public defendants, this Court often gives
government actors more leeway than private parties in the
presumption that they are unlikely to resume illegal activities,”
which we have called a “rebuttable presumption” or a “lesser
burden.” Id. (quotations omitted). Under this presumption, the
controversy “will be moot in the absence of some reasonable basis
to believe that the policy will be reinstated if the suit is terminated.”
Id. (quotations omitted). That said, “[a] government actor is
entitled to this presumption only after it has shown unambiguous
termination of the complained of activity.” Id.
We have considered various factors when conducting both
“the initial inquiry” of whether a government actor has shown
unambiguous termination as well as “the following evaluation
about whether there is a reasonable basis the challenged conduct
will recur.” Id. at 1322–23. While not an exhaustive list, we have
considered the following: (1) “whether the termination of the
offending conduct was unambiguous,” (2) “whether the change in
government policy or conduct appears to be the result of
substantial deliberation, or is simply an attempt to manipulate
jurisdiction,” and (3) “whether the government has consistently
applied a new policy or adhered to a new course of conduct[.]” Id.
at 1323 (quotations omitted). “The timing and content of the
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 9 of 14

-- 9 of 14 --

10 Opinion of the Court 23-12289
cessation decision are also relevant in evaluating whether the
defendant’s stopping of the challenged conduct is sufficiently
unambiguous.” Id. And we are “more likely to find a reasonable
expectation of recurrence when the challenged behavior
constituted a continuing practice or was otherwise deliberate.” Id.
We first take the “crucial first step” of asking whether the
FDC defendants, as government actors, unambiguously
terminated the challenged action. See id. If the FDC defendants
unambiguously terminated the challenged action, then there is a
“rebuttable presumption” that “they are unlikely to resume illegal
activities.” Id. at 1322. If they have not unambiguously terminated
the action, then they do not enjoy the “leeway” that “this Court
often gives government actors.” Id. (quotations omitted). Rather,
the FDC defendants would “bear[] the formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior
could not reasonably be expected to recur.” Id. (quotations
omitted).
We first conclude that the FDC defendants did not shoulder
their burden of showing unambiguous termination. We reach this
conclusion by analyzing the three factors considered in a
voluntary-cessation inquiry. Applying the first factor, the FDC
defendants did not show that they unambiguously terminated its
pattern of excluding Roberts from the program. Although they
formally included him on August 8, 2022, a one-time approval of
Roberts’s application, particularly given the persistent rejections
from 2020 to 2022, is not a permanent guarantee that Roberts will
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 10 of 14

-- 10 of 14 --

23-12289 Opinion of the Court 11
not be wrongfully removed again from the RDP. See id. at 1324
(explaining that plaintiff’s request for injunctive relief was not
moot because, despite receiving the requested injunctive relief,
there was no showing of unambiguous termination of the pattern
of allegedly wrongful conduct).
Addressing the second factor in our initial inquiry of
whether the FDC defendants have shown unambiguous
termination, we conclude that the timing and content of the FDC
defendants’ decision to place Roberts in the RDP “appears to
be . . . an attempt to manipulate jurisdiction[.]” Id. at 1323
(quotations omitted). The FDC defendants, after a years-long
pattern of refusing Roberts’s requests to participate in the RDP,
changed position only after Roberts sued. After Miller forwarded
Roberts’s July 27, 2022, request to join the RDP to his supervisor,
explaining that the application came from “the inmate who is
pursuing a lawsuit,” the supervisor told Miller to “[g]o ahead and
approve” the request less than thirty minutes later. Neither Miller
nor his supervisor specified how Roberts’s future requests would
be evaluated or why they approved his participation in the
program after so many years of refusing Roberts kosher meals. See
id. at 1325 (concluding that the timing and substance of the BOP’s
decision did not “indicate an unambiguous termination” because,
after years of misconduct, it “suddenly changed its position days
before [] trial” and without any indication of how it “intends to
hold steady” in its new course). The FDC defendants’ actions thus
do not appear to be “the result of substantial deliberation,” id. at
1322–23 (quotations omitted), nor do they appear to be “well-
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 11 of 14

-- 11 of 14 --

12 Opinion of the Court 23-12289
reasoned and therefore likely to endure.” Id. at 1325 (quotations
omitted). Instead, they appear to be a short-term attempt to avoid
the court’s jurisdiction.
As for the third factor, there is no evidence at all that the
FDC defendants “ha[ve] consistently applied a new policy or
adhered to a new course of conduct,” leading us to the conclusion
that the FDC defendants have not unambiguously terminated the
challenged action. Id. at 1323. And, as noted, there is no evidence
of why Roberts was removed from the RDP in the first place.
Considering the circumstances of Roberts’s case, we thus
conclude that the FDC defendants failed to carry their burden of
demonstrating that they unambiguously stopped their pattern of
excluding Roberts from the RDP. As a result, the FDC defendants
“bear[] the formidable burden of showing that it is absolutely clear
the allegedly wrongful behavior could not reasonably be expected
to recur.” Id. (quotations omitted).
We conclude that the FDC defendants failed to meet this
“formidable burden.” Id. at 1322 (quotations omitted). Miller
merely stated in his declaration that “there is no intention to
remove [Roberts] from the [RDP],” and that Roberts would only
be removed from the program if he violated the rules of the RDP.
But we have said that a non-permanent decision that “could change
for any number of unrelated reasons,” including the plaintiff’s own
behavior, does not alone show that “the allegedly wrongful
behavior could not reasonably be expected to recur.” See id. at
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 12 of 14

-- 12 of 14 --

23-12289 Opinion of the Court 13
1323–24.6 “To the contrary, the fact that [Roberts] has been
[rejected] repeatedly over a period of years supports a finding of
likely recurrence.” Id. at 1324.
Our conclusion is fortified by Rich v. Secretary, Florida
Department of Corrections, 716 F.3d 525 (11th Cir. 2013). Rich also
involved a Florida prisoner who filed a pro se complaint alleging
that the FDC violated his rights by denying him “a strictly kosher
diet.” 716 F.3d at 528. We concluded that the prisoner’s claims
were not moot even though Florida implemented “a plan to
provide kosher meals to qualified inmates.” Id. at 530–32.
Evaluating the timing of the policy change in question, we found
ambiguity where the change “was not made before litigation was
threatened, but was instead late in the game.” Id. at 532 (quotations
omitted). We explained that “Florida announced that it was going
to change its policy only after [the prisoner] filed his counseled brief
to this Court and after the U.S. Department of Justice filed suit
against it,” which “ma[d]e it appear that the change in policy [was]
an attempt to manipulate jurisdiction.” Id. (quotations omitted).
Further, we said that “[t]here [was] nothing to suggest that Florida
6 Indeed, Roberts’s opening brief on appeal says that the allegedly wrongful
conduct did recur because the FDC defendants “suspended [him] again for no
reason” after the district court dismissed his case. Of course, if Roberts’s
assertion is true, then we may easily conclude his case is not moot because
“we look at the events at the present time, not at the time the complaint was
filed or when the federal order on review was issued.” Dow Jones & Co. v. Kaye,
256 F.3d 1251, 1254 (11th Cir. 2001). But we need not investigate the matter
because, as explained in this opinion, this case is not moot due to the
voluntary-cessation doctrine.
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 13 of 14

-- 13 of 14 --

14 Opinion of the Court 23-12289
[would] not simply end the new kosher meal program at some
point in the future,” as it had years earlier. Id. We therefore
concluded that FDC had not unambiguously terminated its policy
that had deprived the prisoner of his meals, and the prisoner’s
claims were not moot. Id. at 532. The same analysis holds here.
In sum, the district court erred by failing to analyze
mootness under the voluntary-cessation doctrine. In doing so, it
improperly placed the burden on Roberts to show jurisdiction
existed, when that burden falls on the shoulders of the FDC
defendants. See Doe, 747 F.3d at 1323 (stating that “[t]he District
Court skipped [the] crucial first step by failing to require the
government to shoulder its initial burden” of showing
unambiguous termination and “therefore improperly shifting the
burden to [the plaintiff]”). Because the FDC defendants failed to
show both that they have unambiguously terminated the
complained of activity and that the complained of activity could
not reasonably be expected to recur, Roberts’s case is not moot.
See id. at 1322.
IV. Conclusion
Because the district court erred in dismissing Roberts’s case
as moot, we vacate and remand.
VACATED AND REMANDED.
USCA11 Case: 23-12289 Document: 23-1 Date Filed: 04/26/2024 Page: 14 of 14

-- 14 of 14 --