          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  October 7, 2009
                                No. 08-41022
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

JON MICHAEL WITHROW,

                                           Plaintiff-Appellant,

v.

ELIZABETH ANN MILLER; JOHN DOE; JANE DOE,

                                           Defendants-Appellees.


                  Appeal from the United States District Court
                for the Eastern District of Texas, Tyler Division
                            USDC No. 6:07-CV-455


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Jon Michael Withrow, Texas prisoner # 675379, appeals the magistrate
judge’s grant of defendant Elizabeth Ann Miller’s motion for summary judgment
on the ground that Withrow’s 42 U.S.C. § 1983 action was moot. Withrow
alleged that Miller confiscated mail and refused to allow him to receive mail
concerning other prisoners’ litigation which he was assisting.         The Texas
Department of Criminal Justice Director’s Review Committee initially upheld



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-41022

Miller’s actions, but reversed its position after Withrow filed his § 1983 action
in court.
      Miller filed a motion for summary judgment in which she asserted that
Withrow would henceforth be allowed to receive mail concerning other prisoners’
litigation, as he requested. Miller also asserted, without a sworn attestation,
that documents attached to her motion were the documents she had confiscated
and that they were being returned to Withrow with the motion. She thus argued
that the case was moot because there was no longer a case or controversy. In his
motion to alter judgment, Withrow contended that Miller’s unauthenticated
documents were not competent summary judgment evidence.
      The magistrate judge, deciding the case by consent of the parties, granted
Miller’s motion for summary judgment and dismissed Withrow’s complaint,
reasoning that the case was moot. In response to Withrow’s timely motion under
Fed. R. Civ. P. 59, the court took “judicial notice” that the documents filed by
Miller were “public records.” Although the magistrate judge’s grant of summary
judgment was improper, we agree that the case was moot, and we affirm the
dismissal of the cause for lack of subject matter jurisdiction.1
                                        I.
      On appeal, Withrow contends that summary judgment was improper
because Miller’s documents were not authenticated and because the court
improperly decided a contested factual issue. Miller did not authenticate her
documents with a sworn statement that they were the same documents
confiscated from Withrow. Unsworn documents generally cannot support a
summary judgment motion. See Eguia v. Tompkins, 756 F.2d 1130, 1136 (5th




      1
       This court “will not reverse a judgment of the district court if it can be
affirmed on any ground regardless of whether the district court articulated the
ground.” Hager v. NationsBank N.A., 167 F.3d 245, 247 (5th Cir. 1999) (internal
quotation marks and citations omitted).

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                                  No. 08-41022

Cir. 1985) (finding that any error was harmless where a summary judgment
motion was “supported by unauthenticated documents”).
      Although the magistrate judge improperly characterized the rejection of
Withrow’s claim for injunctive relief as a grant of Miller’s summary judgment
motion, it is clear that the basis of the magistrate judge’s opinion was actually
a lack of subject matter jurisdiction because Withrow’s claim was moot. This
court is “not bound by the label a trial court puts on its opinion where underlying
facts or the opinion as a whole indicate that a different action was in fact
intended.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1037 (5th
Cir. 1981); see also Tuley v. Heyd, 482 F.2d 590, 593 (5th Cir. 1973) (“It is a
familiar principle that the label a district court puts on its disposition of a case
is not binding on a court of appeals.”).
      Because the magistrate judge’s decision was based on the jurisdictional
issue of mootness, the magistrate judge was not limited by the procedural
restrictions that govern a motion for summary judgment. At issue in this case
“is the trial court’s jurisdiction — its very power to hear the case.” Williamson
v. Tucker, 645 F.2d 404, 412–13 (5th Cir. 1981). Therefore, “there is substantial
authority that the trial court is free to weigh the evidence and satisfy itself as
to the existence of its power to hear the case.” Id. at 413. Even in the face of a
factual dispute, the magistrate judge had authority to dismiss the action based
on “the complaint supplemented by undisputed facts plus the court’s resolution
of disputed facts.” Id. Where the court has relied “on its own determination of
disputed factual issues, we must then review those findings as we would any
other district court resolution of factual disputes — we must accept the district
court's findings unless they are ‘clearly erroneous.’” Id. (citations omitted).
      Withrow challenges only the technical correctness of summary judgment
and does not advert to any evidence contradicting the magistrate judge’s finding
that Miller returned the confiscated documents. He concedes that he does not
know what documents were actually mailed and that Miller does. In addition,

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a website user identification number present in Miller’s documents was the same
one used by Withrow’s friend to gain access to the documents. Withrow offers
only speculation that Miller reprinted the documents herself after destroying the
confiscated ones.
      Withrow also contends that the magistrate judge erred by taking judicial
notice of “the documents” confiscated, which were filed by Miller on the grounds
that they were “public records” and determining that they were “the actual
documents that were confiscated.” This action was in error as judicial notice
may be taken only of a fact that “is ‘not subject to reasonable dispute in that it
is either (1) generally known within the territorial jurisdiction of the trial court
or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot be questioned.’” Taylor v. Charter Medical Corp., 162 F.3d 827,
829 (5th Cir. 1998) (quoting Fed R. Evid. 201). Even if the documents presented
by Miller were properly characterized as “public records,” that characterization
is not probative of whether the documents were the same documents that were
mailed to Withrow. Because it was subject to reasonable dispute whether the
filed documents were the confiscated documents, the issue was not susceptible
to judicial notice. See Fed R. Evid. 201(b). The error was harmless, however,
because the court was permitted to make factual findings concerning its
jurisdiction, and its finding that the confiscated documents were returned to
Withrow was not clearly erroneous.
      Withrow also argues that the magistrate judge erred by considering
Miller’s documents because they were “disclosed” after the deadline set forth for
disclosures in the magistrate judge’s scheduling order.        This contention is
frivolous because a challenge to the court’s jurisdiction may be made at any time.
Carr v. Saucier, 582 F.2d 14, 16 (5th Cir. 1978).
      Ultimately, Withrow fails to show that there was any continuing case or
controversy which provided the magistrate judge with jurisdiction to hear the
case. Withrow has not proven that the magistrate judge committed clear error

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in finding that the confiscated documents were returned, and he acknowledged
in his motion for summary judgment that as “the Defendants are now allowing
him to receive [mail concerning other prisoners’ litigation], he has obtained all
the relief requested and it appears to him that an order from the Court is no
longer necessary.” Because the case was moot, dismissal for lack of jurisdiction
is proper. See Rocky v. King, 900 F.2d 864, 867 (5th Cir. 1990).
                                       II.
      We also affirm the magistrate judge’s determination that Withrow is not
entitled to costs. To recover costs of litigation in a § 1983 action, the party
seeking recovery must be a “prevailing party.” Withrow is not a prevailing party
under 42 U.S.C. § 1988(b) where his lawsuit was the catalyst for a voluntary
change in the defendant’s behavior in absence of “a judicially sanctioned change
in the legal relationship of the parties” bearing the necessary “judicial
imprimatur,” such as a court judgment or consent decree. Buchannon Bd. &
Care Home, Inc. v. W. Va. Dept. of Health and Human Res., 532 U.S. 598, 605
(2001); see Dearmore v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008). As
no such judgment has been entered, Withrow is not entitled to recover his
litigation costs.
      The judgment of the magistrate judge dismissing the complaint is
AFFIRMED.




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