The opinion of the court was delivered by: GEORGE MAROVICH, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Luther Jones ("Jones") filed a two-count amended
complaint against defendants Roger E. Walker, Jr., Jorge Montes,
Eric W. Althoff, Nancy L. Bridges-Mickelson, James Donahue,
Robert L. Dunne, Craig Findley, Andrew Fox, David Frier, Barbara
M. Hubbard, Thomas L. Johnson, Jesse Madison, Milton Maxwell,
John Stenson, Norman M. Sula, Geraldyne Tyler and Joseph Burke.
In both Counts, plaintiff brings suit pursuant to
42 U.S.C. § 1983 to challenge policies he believes violate his due process
rights. Jones brings Count I on his own behalf and Count II on
behalf of a purported class. Defendants have moved to dismiss
both counts. I. Background
From approximately January 2004 to early September 2004, Jones
was on parole from the Illinois Department of Corrections. At
some point in September 2004, plaintiff was arrested for an
alleged parole violation. In his complaint, Jones alleges that
his constitutional right to due process of law was violated
because he did not receive a preliminary parole revocation
hearing within ten days of his arrest and because he did not
receive the hearing at or near the site of the alleged violation.
Instead, Jones was transferred from the Cook County Jail to the
Stateville Correctional Center. In addition, as of the time Jones
filed his amended complaint, he had been in custody for more than
sixteen days and still had not received a parole revocation
hearing. Jones's amended complaint makes clear that he seeks to
bring his suit as a class action, but Jones has not yet filed a
motion for class certification.
Defendants moved to dismiss plaintiff's complaint on the
grounds that the conduct alleged to have violated the
constitution had been explicitly allowed by a consent decree
entered by the Court in the case of Duran v. Sheahan, 74 C
2949.*fn1 For several months, plaintiff failed to respond to defendants' motion to dismiss. The Court, because it
was concerned that plaintiff's claims had been mooted by events
that had occurred since plaintiff filed his complaint and upon
its own motion, granted Jones additional time to respond to
defendants' motion to dismiss and requested that plaintiff
explain whether his case was moot. Similarly, the Court granted
defendants time to file a reply in support of their motion to
dismiss and to explain whether the case was now moot. Defendants
provided evidence that plaintiff was released from custody in May
2005 because he had completed the sentence that was the subject
of his parole from January to September 2004. Plaintiff has not
disputed this fact.
Before the Court considers defendants' motion to dismiss, it
must satisfy itself that it has jurisdiction over the case.
Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 (7th
Cir. 2001). The exercise of the Court's judicial power under
Article III of the Constitution "depends on the existence of a case or controversy." United
States National Bank of Oregon v. Independent Ins. Agents of
Amer., Inc., 508 U.S. 439, 446 (1993). Federal courts do not
have the power to render advisory opinions. Id. Among other
things required for a case or controversy, the plaintiff must
have suffered an injury that is "actual or imminent, not
`conjectural' or `hypothetical.'" Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Throughout the course of a
lawsuit, the parties must continue to have a "personal stake in
the outcome." Lewis v. Continental Bank Corp., 494 U.S. 472,
478 (1990). Otherwise, the case has become moot and must be
dismissed for want of jurisdiction. Holstein v. City of Chi.,
29 F.3d 1145, 1147 (7th Cir. 1994).
Plaintiff argues that his case is not moot because he presented
a live case or controversy when he filed his amended complaint
and because he filed his suit on behalf of a class of persons.
While exceptions to the mootness doctrine exist (either for
situations capable of repetition yet evading review or for
certain situations involving class actions), no exception saves
plaintiff's case from being moot.
First, under certain circumstances, class action cases will not
be considered moot just because the named plaintiff's case is
moot. In Sosna v. Iowa, 429 U.S. 393 (1975), the Supreme Court
held that a class action did not become moot solely because the
named plaintiff's claim had become moot. Rather, so long as the
controversy "remain[ed] very much alive for the class of persons
[plaintiff] ha[d] been certified to represent[,]" the case was
not moot. Id. at 401. The Supreme Court, however, noted that:
[o]ur conclusion that this case is not moot in no way
detracts from the firmly established requirement that
the judicial power of Art. III courts extends only to
`cases and controversies' specified in that Article.
There must not only be a named plaintiff who has such
a case or controversy at the time the complaint is
filed, and at the time the class action is certified
by the District Court pursuant to Rule 23, but there
must be a live controversy at the time this Court
reviews the case. Sosna, 419 U.S. at 402. The named plaintiff in Sosna had been
a member of the class with a live controversy at the time the
class was certified. The fact that her claim (though not the
claims of the rest of the class) had since become moot affected
not whether the entire case was moot but rather whether the named
plaintiff was an appropriate class representative for purposes of
Rule 23 of the Federal Rules of Civil Procedure. Sosna,
419 U.S. at 403. What this means is that "once a class is properly
certified, statutory Article III standing requirements must be
assessed with reference to the class as a whole, not simply with
reference to the individual named plaintiffs." Payton v. County
of Kane, 308 F.3d 673, 680 (7th 2002).
In United States Parole Comm'n v. Geraghty, 445 U.S. 388
(1980), the Supreme Court considered whether a named plaintiff
whose motion for class certification had been denied before his
claim became moot had standing to challenge on appeal the denial
of class certification. The Court concluded that he could appeal
the denial of class certification and explained:
His injury continued up to and beyond the time the
District Court denied class certification. We merely
hold that when a District Court erroneously denies a
procedural motion, which, if correctly decided, would
have prevented the action from becoming moot, an
appeal lies from the denial and the corrected ruling
"relates back" to the date of the original denial. . . .
If the named plaintiff has no personal stake in
the outcome at the time class certification is
denied, relation back of appellate reversal still
would not prevent mootness of the action.
Geraghty, 445 U.S. 404 n. 11. The Supreme Court has also held
that where a named plaintiff's claim becomes moot after he files
a motion for class certification but before the court has ruled
on the motion, the case will not be considered moot if the named
plaintiff's claim is "so inherently transitory that the trial
court will not have even enough time to rule on a motion for
class certification before the proposed representative's
individual interest expires." County of Riverside v.
McLaughlin, 500 U.S. 44
, 52 (1991) (citing Geraghty,
445 U.S. at 399). But the plaintiff points to no case that has gone so far as to
say that a named plaintiff can avoid mootness merely by alleging
in his complaint that the case is appropriate for class
treatment. To the contrary, in Holstein v. City of Chi.,
29 F.3d 1145
, the Seventh Circuit rejected the idea that a named
plaintiff whose personal claim was moot could avail himself of
the class action exception to the mootness doctrine where he had
never even filed a motion for class certification. Id. at 1147.
Like the plaintiff in Holstein and unlike the plaintiff in
McLaughlin, Jones did not file a motion for class certification
before his claim became moot. The class action exception to the
mootness doctrine does not save Jones's case.
Another exception to the mootness doctrine exists. A claim is
not moot where it is capable of repetition, yet evades review.
See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). The
doctrine "applies only in exceptional situations, and generally
only where the named plaintiff can make a reasonable showing that
he will again be subjected to the alleged illegality." Lyons,
461 U.S. at 109. Thus, a case is not moot when "(1) the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there was
a reasonable expectation that the same complaining party would be
subjected to the same action again." Belda v. O'Marshall,
___ F.3d ___, ___, 2005 WL 1743791 at * 2 (7th Cir. July 26, 2005)
(internal citation omitted). Thus, the "capable of repetition"
portion considers whether the particular controversy is likely to
occur again with respect to the parties in the case not whether
other individuals may face the conduct. See Buckley v.
Archers-Daniels-Midland Co., 111 F.3d 524, 527 (7th Cir. 1997)
("Even assuming her claim is inherently transitory, `there is no
reasonable expectation, much less a demonstrated probability,
that the same controversy will recur' between Buckley and ADM")
(internal citation omitted); Hedges v. Wauconda Comm'ty Unit School Dist. # 118, 9 F.3d 1295, 1297 (7th Cir. 1993)
("the `capable of repetition' aspect of the doctrine also is not
satisfied because these parties will not again come into conflict
over these questions.").
The exception does not apply here. First, the Court does not
consider Jones's claim to be transitory (despite the fact that he
claimed a right to receive a parole revocation hearing within ten
days) given that his case was not moot until he was released from
custody in May 2005, more than six months after his
incarceration. See Banks v. NCAA, 977 F.2d 1081, 1086 (7th Cir.
1992) (claim not transitory where 120 days passed between
actionable event and the date claim became moot). Second, there
is no reasonable expectation that Jones will again need a parole
revocation hearing from these defendants. Although he is
currently charged with crimes, it is too speculative to assume he
will a) be convicted; b) be paroled; and c) again be incarcerated
for a parole violation. Accordingly, Jones cannot avail himself
of the "capable of repetition yet evading review" exception to
the mootness doctrine.
Jones's case is moot. Accordingly, the Court lacks jurisdiction
over this case and hereby dismisses the case without prejudice. III. Conclusion
For the reasons set forth above, the Court dismisses the case
without prejudice. All pending ...