USCA11 Case: 23-10910 Document: 23-1 Date Filed: 03/04/2024 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-10910 Non-Argument Calendar ____________________

BRIAN SCOTT CULVER, Plaintiff-Appellant, versus SHANNON WITHERS, et al.,

Defendants,

FEDERAL BUREAU OF PRISONS,

Defendant-Appellee.

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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, GRANT, and TJOFLAT, 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: 3 of 9

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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: 4 of 9

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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: 5 of 9

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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: 6 of 9

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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: 7 of 9

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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: 8 of 9

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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: 9 of 9

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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.