Brian Scott Culver v. Federal Bureau of Prisons

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10910
Non-Argument Calendar
____________________
BRIAN SCOTT CULVER,
Plaintiff-Appellant,
versus
SHANNON WITHERS, et al.,
Defendants,
FEDERAL BUREAU OF PRISONS,
Defendant-Appellee.
____________________
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 1 of 9

-- 1 of 9 --

2 Opinion of the Court 23-10910
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:18-cv-00160-TKW-HTC
____________________
Before ROSENBAUM, G RANT, and T JOFLAT, Circuit Judges.
PER CURIAM:
Brian Culver, a federal prisoner currently incarcerated at
Federal Correctional Institution (FCI) Marianna, appeals the Dis-
trict Court’s dismissal for mootness of his pro se amended com-
plaint, which alleged that FCI Marianna prison staff confiscated
from Culver certain family photographs. He also challenges the
District Court’s denial of his motion to amend this complaint and
motion for summary judgment. For the reasons below, we affirm.
I. Background
Brian Culver is serving a 720-month sentence at FCI Mari-
anna for producing child pornography. See United States v. Culver,
598 F.3d 740, 746 (11th Cir. 2010). In July 2018, he filed an amended
complaint against the Federal Bureau of Prisons (BOP). Culver al-
leged that Marianna’s Sex Offender Management Program imple-
mented an unconstitutional policy that banned sex offender in-
mates from possessing photos of children unless the images de-
picted the inmate’s biological or adopted child. In 2017, pursuant
to this policy, Marianna allegedly confiscated from Culver family
vacation photographs containing images of Culver’s minor neph-
ews.
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 2 of 9

-- 2 of 9 --

23-10910 Opinion of the Court 3
The District Court dismissed Culver’s pro se amended com-
plaint, and Culver appealed to this Court. We reversed in part the
dismissal, holding that the amended complaint stated a plausible
as-applied First Amendment challenge to the policy, which, if suc-
cessful, would merit injunctive relief. See Culver v. Withers, No. 19-
15160, 2022 WL 2972835, *2 (11th Cir. July 27, 2022) (per curiam).
After remanding the case for further proceedings, the BOP
voluntarily terminated and replaced the policy Culver complained
was unconstitutional with a new policy. The new policy, signed
into effect in October 2022, allowed inmates to “possess photo-
graphs of juveniles who are identified as a family member, and who
are not identified as a victim, per their [presentence investigation
report] or other available legal documentation.” Consequently, the
BOP moved to dismiss Culver’s claim for mootness.
Culver opposed the BOP’s motion, asserting that the case
was not moot because the newly revised policy still imposed what
he characterized as a “blanket ban” on photographs. He contended
that the requirements of Article III were met because this dispute
was capable of repetition, yet evading review and he anticipated a
likelihood of violating the policy again. Additionally, Culver ar-
gued that under the doctrine of voluntary cessation, the BOP’s vol-
untary removal of the policy did not deprive the District Court of
its jurisdiction to hear the case. Subsequently, Culver sought per-
mission to supplement the amended complaint, citing the BOP’s
“unforeseen actions,” and also moved for summary judgment.
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 3 of 9

-- 3 of 9 --

4 Opinion of the Court 23-10910
A magistrate judge issued a report and recommendation
that the case be dismissed without prejudice as moot. The magis-
trate judge clarified that the feature of the initial policy that Culver
challenged—the prohibition on photos of minor relatives beyond
children and grandchildren—had been “substantially altered” by
the new policy. Furthermore, the magistrate judge determined
that the “capable of repetition, yet evading review” exception to
mootness did not apply, as there was no reasonable expectation that
the same controversy would reoccur. Emphasizing that Culver’s
sole claim before the District Court pertained to being denied ac-
cess to family photos, the magistrate judge asserted that this claim
had been rendered moot by the BOP’s policy revisions. According
to the magistrate judge, Culver now argued a different, hypothet-
ical controversy related to his inability to possess photos of nonfa-
milial minors. Additionally, the magistrate judge recommended
denying Culver’s request to amend his complaint to include claims
related to the new policy because he had not administratively ex-
hausted his challenges to the new policy.
Over Culver’s objections, the District Court adopted the
magistrate judge’s report and recommendation and found that
Culver had obtained the relief he sought through the new policy,
rendering his claim moot. The District Court explained that chal-
lenging the new policy would require Culver to exhaust his admin-
istrative remedies and then file a new suit. Accordingly, the District
Court dismissed the case as moot and denied all pending motions.
Culver timely appealed to this Court.
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 4 of 9

-- 4 of 9 --

23-10910 Opinion of the Court 5
II. Discussion
On appeal, Culver argues that the termination of the first
policy did not moot his case because two legal issues remain con-
cerning the new policy: first, whether the new policy violates his
constitutional right to communicate with his family and friends;
and second, whether the new policy is supported by a valid peno-
logical interest. Likewise, Culver contends that he is likely to suffer
the same injury again because the new policy still bans a majority
of his photographs of family and friends. Finally, Culver argues
that the BOP’s issuance of the new policy was merely a tactic to
avoid litigation and that there is a reasonable expectation that the
BOP will reenact the first policy.
“Whether a case is moot is a question of law that we review
de novo.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182
(11th Cir. 2007). As a federal court, Article III of the U.S. Constitu-
tion limits our jurisdiction to “cases” and “controversies.” Christian
Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011).
“[T]here are ‘three strands of justiciability doctrine—standing,
ripeness, and mootness—that go to the heart of the Article III case
or controversy requirement.’” Id. (quoting Harrel v. The Fla. Bar,
608 F.3d 1241, 1247 (11th Cir. 2010)). Concerning the third strand,
the Supreme Court has explicitly stated that “a federal court has no
authority ‘to give opinions upon moot questions or abstract prop-
ositions, or to declare principles or rules of law which cannot affect
the matter in issue in the case before it.’” Church of Scientology of
Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green,
159 U.S. 651, 653 (1895)). An issue is considered moot when it no
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 5 of 9

-- 5 of 9 --

6 Opinion of the Court 23-10910
longer presents a live controversy for which the court can provide
meaningful relief. Christian Coal. of Fla., Inc., 662 F.3d at 1189.
An exception to mootness is the doctrine of voluntary ces-
sation. Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340, 1351
(11th Cir. 2011). A defendant’s voluntary cessation of a challenged
practice does not moot a case when there is a reasonable expecta-
tion that the defendant will resume the conduct after the suit is dis-
missed. Id. The party asserting mootness generally must show that
the challenged conduct cannot be reasonably expected to restart.
Id. Government actors, however, receive a rebuttable presumption
that their challenged behavior will not recur. Id. To avoid dismissal
as moot in those cases, the plaintiff must show some reasonable
basis to believe that the policy will be reinstated if the suit is termi-
nated. Id. at 1351–52.
Another exception to the mootness doctrine applies to cases
that are “capable of repetition, yet evading review.” S. Pac. Terminal
Co. v. Interstate Com. Comm’n, 219 U.S. 498, 515 (1911). Such a case
exists when “(1) the challenged action [i]s in its duration too short
to be fully litigated prior to its cessation or expiration, and (2) there
[i]s a reasonable expectation that the same complaining party w[ill]
be subjected to the same action again.” Weinstein v. Bradford,
423 U.S. 147, 149 (1975) (per curiam). “The remote possibility that
an event might recur is not enough to overcome mootness, and
even a likely recurrence is insufficient if there would be ample op-
portunity for review at that time.” Al Najjar v. Ashcroft,
273 F.3d 1330, 1336 (11th Cir. 2001) (per curiam).
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 6 of 9

-- 6 of 9 --

23-10910 Opinion of the Court 7
Culver’s case is now moot, and no exceptions apply. In his
operative complaint, Culver alleged that he suffered harm through
the confiscation of photos of his nephews. This alleged injury was
remedied upon the BOP’s termination of the first Policy and im-
plementation of the new policy, which allowed him to regain pos-
session of the confiscated photos. Consequently, there is no ongo-
ing case or controversy for the District Court to adjudicate, and any
decision about the first policy would constitute an unconstitutional
advisory opinion.
Furthermore, the voluntary cessation exception to moot-
ness is inapplicable. Culver has not rebutted the presumption that
the BOP’s challenge will not recur, as he has failed to provide a rea-
sonable basis for believing that the first policy would be reinstated
after the conclusion of the lawsuit. This is also not a case that is
“capable of repetition, yet evading review.” With the implementa-
tion of the new policy, Culver can now possess the photos that
were previously confiscated, and there is no reasonable expectation
the same controversy will recur. Any challenge to the new policy
would be grounded in a distinct and separate controversy.
Culver also asserts that the District Court erred by denying
his request to amend his complaint. He argues that amendment is
justified in light of the BOP’s “unforeseen actions,” presumably re-
ferring to the removal of the first policy. Our review of a District
Court’s denial of a motion to amend a complaint is for abuse of
discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir.
1999).
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 7 of 9

-- 7 of 9 --

8 Opinion of the Court 23-10910
Pursuant to Federal Rule of Civil Procedure 15(a)(2), if a re-
sponsive pleading has been filed, a party may amend its complaint
only with leave of court or with written consent of the adverse
party. Leave to amend should be liberally granted when necessary
in the interest of justice, but futility is a valid basis for denying such
a request. Burger King, 169 F.3d at 1319; Fed. R. Civ. P. 15(a)(2). The
denial of leave to amend is deemed justified by futility when the
amended complaint remains subject to dismissal. Burger King,
169 F.3d at 1320.
Here, we agree with the District Court’s decision to reject
Culver’s request for leave to amend his complaint. According to
42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to
prison conditions under . . . Federal law, by a prisoner confined in
any jail, prison, or other correction facility until such administrative
remedies as are available are exhausted.” As Culver did not fulfill
this requirement, the denial of his attempt to introduce a claim re-
lated to the new policy was appropriately characterized as futile.1
1 In the District Court, Culver contended that Marianna had made its admin-
istrative procedures unavailable to him. Prisoners do not have to exhaust
grievance procedures that are not capable of use. Ross v. Blake, 578 U.S. 632,
642 (2016). Moreover, while this Court reads briefs filed by pro se litigants
liberally, any issues not briefed on appeal are abandoned. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam). An issue is not con-
sidered briefed on appeal when it is not specifically and clearly identified by a
party in its opening brief. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004). Even with a generous and liberal interpretation of Cul-
ver’s opening brief, he has not asserted the argument that administrative
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 8 of 9

-- 8 of 9 --

23-10910 Opinion of the Court 9
Finally, Culver argues that the District Court should have
granted him summary judgment, despite the termination of the
first policy, because the new policy still imposed a “blanket ban” on
photographs and lacked a connection to any penological interest.
He has also moved to expand the record. In light of our determi-
nation that Culver’s case is moot, we affirm the denial of his mo-
tion for summary judgment and deny his motion to expand the rec-
ord.
AFFIRMED.
procedures were unavailable to him, and therefore he has abandoned that par-
ticular argument.
USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 9 of 9

-- 9 of 9 --