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11th Circuit Reinstates Suit Filed by BOP Confidential Informant

11th Circuit Reinstates Suit Filed by BOP Confidential Informant

by Derek Gilna

The 11th Circuit has reinstated a previously-dismissed complaint alleging Eighth Amendment violations by the Bureau of Prisons (BOP) for being deliberately indifferent to the safety of a prisoner who acted as a confidential informant. The plaintiff, who filed suit using a John Doe pseudonym, had assisted the BOP in investigating one of its own officers, which put his personal safety in jeopardy.

While held at USP Atlanta, Doe helped obtain evidence against a BOP guard who had engaged in sexual misconduct. The guard resigned, and in exchange for his assistance Doe “was promised that he would be kept safe and would be transferred to a lower security prison.”

However, the BOP later transferred Doe to a high-security facility and failed to keep confidential his grievance concerning the transfer. As a result, he was placed in a cell with “two known sexual offenders, who severely beat and assaulted him.” Doe was then moved to several other high-security prisons and placed in special housing units; at one point he was sent back to USP Atlanta, where he “was beaten by a BOP officer so badly that he required a trip to the emergency room.” He suffered three other attacks by prisoners that were allegedly linked to his reputation for being an informant, including two after he filed suit in federal court.

Shortly before trial the BOP filed a motion to dismiss, claiming that “it had taken action ... that rendered Mr. Doe’s claims moot,” as it had instructed staff he was not to be transported through USP Atlanta, and had moved him to a Colorado state prison.

The district court dismissed the complaint based on mootness but the Court of Appeals held the lower court had applied an incorrect legal standard. Additionally, the appellate court ruled that the BOP had not met its “formidable” and “heavy” burden of establishing “that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur,” thus the case could not be considered moot.

Prisoners who assist the BOP in its investigations rely on the agency to not move them to a high-security facility, where their absence would be considered “proof” that they had cooperated with prison officials. In this case, the BOP’s past conduct indicated it could not be relied upon to not put Doe in a high-security facility in the future; further, the district court had not applied the proper standard for evaluating “unambiguous termination” of the BOP’s challenged actions.

“The mere fact that the BOP transferred Mr. Doe to the Colorado State Corrections system simply does not show that the BOP has unambiguously terminated its pattern of transferring Mr. Doe to one high-security prison after another,” the Eleventh Circuit wrote. “We note that the BOP has never said Mr. Doe will not be transferred back to a high-security facility.”

Mootness is often a subjective concept in which a court must determine whether or not the conduct complained of will probably be repeated, or could be repeated, if not prohibited by the court. Based upon the facts of this case, the Court of Appeals found that Doe’s claims were not moot, and thus reversed and remanded for further proceedings. See: Doe v. Wooten, 747 F.3d 1317 (11th Cir. 2014).

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Related legal case

Doe v. Wooten