v. Williams , 2019 COA 118 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 1, 2019
2019COA118
No. 18CA0865, Gandy v. Williams — Civil Procedure —
Amended and Supplemental Pleadings; Administrative Law —
Colorado Department of Corrections — Transfer of Foreign
National Offenders to Treaty Nations; Court and Court
Procedure — Inmate Lawsuits — Exhaustion of Remedies
In this case, an inmate in the custody of the Colorado
Department of Corrections (CDOC) filed an application to be
transferred to Canada to serve the remainder of his sentence. The
CDOC’s Executive Director denied the application, and the inmate
sought judicial review. The district court denied relief, and a
division of the court of appeals now affirms that decision. The
division holds that (1) while the CDOC’s regulation entitles an
inmate to review of a transfer application by the CDOC’s Executive
Director, the decision whether to grant the application lies within
the Executive Director’s discretion; and (2) when exercising that
discretion, the Executive Director may decide that the inmate’s need
for treatment militates against an immediate transfer.
COLORADO COURT OF APPEALS 2019COA118
Court of Appeals No. 18CA0865
El Paso County District Court No. 16CV45
Honorable Eric Bentley, Judge
Robert D. Gandy,
Plaintiff-Appellant,
v.
Dean Williams, Executive Director, Colorado Department of Corrections; and
Travis Trani, Director of Prisons, Colorado Department of Corrections,
Defendants-Appellees.
ORDER AFFIRMED
Division VII
Opinion by JUDGE NAVARRO
Dunn and Berger, JJ., concur
Announced August 1, 2019
Robert D. Gandy, Pro Se
Philip J. Weiser, Attorney General, Nicole S. Gellar, First Assistant Attorney
General, Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, Robert D. Gandy, appeals the district court’s order
denying his motion to amend his complaint against officials of the
Colorado Department of Corrections (CDOC) and closing the case.
His complaint stems from the denial of his application to serve his
prison sentence in Canada, his birthplace. We affirm. In doing so,
we clarify that (1) while the CDOC’s regulation entitles an inmate to
review of a transfer application by the CDOC’s Executive Director,
the decision whether to grant the application lies within the
Executive Director’s discretion; and (2) when exercising that
discretion, the Executive Director may decide that the inmate’s need
for treatment militates against an immediate transfer.
I. Background
¶2 This is not Gandy’s first appeal to this court. Like this one,
his earlier appeals concerned his request to be transferred to the
Canadian penal system. As discussed in Gandy v. Raemisch, 2017
COA 110, ¶ 2 (Gandy IV), Gandy is a Canadian citizen serving a
habitual criminal life sentence in the CDOC’s custody. See also
Gandy v. Colo. Dep’t of Corr., 2012 COA 100 (Gandy III); Gandy v.
Colo. Dep’t of Corr., (Colo. App. No. 07CA2381, Nov. 26, 2008) (not
published pursuant to C.A.R. 35(f)) (Gandy II); Gandy v. Colo. Dep’t
1
of Corr., (Colo. App. No. 03CA1056, June 24, 2004) (not published
pursuant to C.A.R. 35(f)) (Gandy I). He has argued that an
international treaty addressing prisoner exchanges and its
implementing statutes and regulations require CDOC officials to
consent to his transfer to Canada. See Treaty on the Execution of
Penal Sentences, Can.-U.S., Mar. 2, 1977, 30 U.S.T. 6263 (the
Treaty); see also 18 U.S.C. §§ 4100-4102 (2018); § 24-60-2301,
C.R.S. 2018; DOC Admin. Reg. 550-05 (AR 550-05). The CDOC has
denied his applications.
¶3 In this case, Gandy filed a transfer application in September
2015. After it was denied, he filed a complaint in the district court
against CDOC Executive Director and CDOC Director of Prisons
(defendants). Among other claims, Gandy sought mandamus relief
directing defendants to process his prisoner-transfer application
according to CDOC regulation AR 550-05. The court granted
defendants’ motion to dismiss, and Gandy appealed.
¶4 In Gandy IV, a division of this court rejected most of Gandy’s
contentions but held that he had sufficiently stated a mandamus
claim. The division concluded that the CDOC’s regulation required
the Director of Prisons to forward Gandy’s transfer application to
2
the Executive Director, or his or her designee, for final review and
decision. Gandy IV, ¶ 22. Because the Director of Prisons had not
done so, the division reversed the judgment of dismissal on this
issue and remanded to the district court to issue an order directing
the Director of Prisons to forward the transfer application to the
Executive Director. Id. at ¶ 43.
¶5 On remand, the CDOC amended AR 550-05. Applying the
amended regulation, the Executive Director considered and denied
Gandy’s transfer application. 1 Defendants filed this new decision in
the district court as an attachment to a status report. The court
directed the CDOC to provide a written explanation for the new
decision to Gandy. The Executive Director then issued the following
memo to Gandy:
It is the policy of the Colorado Department of
Corrections to return convicted foreign
national offenders to their country of origin
consistent with the interests of the state of
Colorado, the United States Department of
Justice, and the individual offender.
1 This decision was made by Rick Raemisch, the former Executive
Director. His successor, Dean Williams, has been substituted as a
party pursuant to C.A.R. 43(c)(2). The same is true with respect to
the new Director of Prisons, Travis Trani.
3
A review of your criminal history, however,
indicates a pattern of sexually deviant
behaviors that require treatment. Per
Administrative Regulation 700-19, the
Colorado Department of Corrections provides
specialized sex offense-specific treatment to
offenders with identified needs to reduce
recidivism and enhance public safety. While
you are currently identified as ineligible for sex
offender treatment due to not being within four
years of your parole eligibility date, which is
presently July 22, 2022, I expect and
encourage you to participate in treatment
when the opportunity becomes available to
you.
Without treatment, returning you to your
country of origin at this time is inappropriate
and not in the best interest of the state of
Colorado, the United States Department of
Justice or you as an individual offender with
untreated programmatic needs.
¶6 After defendants informed the court of the Executive Director’s
memo and asked for the case to be closed, the court solicited
Gandy’s view as to the further handling of the case. In response, he
filed a status report asking for time to file an amended complaint
challenging the latest denial of this transfer application. Shortly
thereafter, he submitted a motion to amend his complaint.
Defendants opposed his motion, arguing that his suggested
amendments could not withstand a motion to dismiss and were
4
therefore futile under American Civil Liberties Union of Colorado v.
Whitman, 159 P.3d 707, 712 (Colo. App. 2006). Before the court
ruled, Gandy again moved to amend pursuant to “C.R.C.P. Rule
15(a) and (d),” and he attached an amended complaint. In addition
to challenging the denial of his transfer application, his amended
complaint alleged that defendants had unlawfully retaliated against
him by relocating him to a less desirable facility. Defendants again
argued that the proposed claims were futile on the merits.
¶7 The district court denied Gandy’s first motion to amend as
moot in light of his second motion. After receiving briefing on his
second motion and considering his proposed amended complaint,
the court denied it. The court concluded that he had received all
the relief ordered by the Gandy IV division and that “[t]o the extent
Mr. Gandy now wishes to challenge Defendants’ post-remand
decision[,] that is a challenge to a new administrative action that
should be brought in a new lawsuit, after exhausting the
administrative remedies available to him.” In the alternative, the
court denied the motion to amend because the proposed claims
were futile on the merits. The court closed the case, and Gandy
appealed.
5
¶8 Because Gandy appears pro se in this court, we liberally
construe his filings while applying the same law and procedural
rules applicable to a party represented by counsel. See People v.
Bergerud, 223 P.3d 686, 696 (Colo. 2010); People v. Wunder, 2016
COA 46, ¶ 16 n.3.
II. Law Applicable to a Motion to Amend
¶9 Gandy first contends that the district court erred because he
had a right to amend his complaint as a matter of course under
C.R.C.P. 15(a). We disagree.
¶ 10 Gandy is correct that C.R.C.P. 15(a) permits a party to amend
a pleading “once as a matter of course at any time before a
responsive pleading is filed.” He is also right that a motion to
dismiss is not normally considered a responsive pleading for
purposes of this rule. See, e.g., Grear v. Mulvihill, 207 P.3d 918,
922 (Colo. App. 2009). Thus, defendants’ original motion to dismiss
in this case (prior to the appeal in Gandy IV) did not terminate his
right to amend. The district court’s grant of that motion and its
judgment of dismissal, however, did so. A division of this court has
explained the pertinent principle:
6
Read literally, C.R.C.P. 15(a) gives the plaintiff
an unlimited right to amend once as a matter
of course before an answer is filed. However,
when final judgment is entered before a
responsive pleading is filed, the liberal
approach of C.R.C.P. 15 must be balanced
against the value of preserving the integrity of
final judgments. Therefore, if final judgment is
entered before a responsive pleading has been
served, the absolute right to amend the
complaint as a matter of course is lost.
Wilcox v. Reconditioned Office Sys. of Colo., Inc., 881 P.2d 398, 400
(Colo. App. 1994) (emphasis added) (citations omitted); see also
Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985) (“A motion to
dismiss is treated like a responsive pleading when final judgment is
entered before plaintiff files an amended complaint. The final
judgment precludes plaintiff from amending his complaint as of
right pursuant to [a former version of Fed. R. Civ. P. 15(a), which
was similar to C.R.C.P. 15(a)].”) (citations omitted).
¶ 11 Consequently, Gandy’s ability to amend his complaint after
the district court entered final judgment and after remand from this
court was subject to the district court’s discretion. See Civil Serv.
Comm’n v. Carney, 97 P.3d 961, 966 (Colo. 2004) (“This court has
long recognized that trial courts may permit parties to amend
pleadings in proceedings conducted after an appellate court’s order
7
of remand.”). More precisely, the district court retained discretion
to grant Gandy leave to amend the pleadings following remand from
this court unless the amendment would contravene a mandate that
expressly or by necessary implication precluded such amendment.
Nelson v. Elway, 971 P.2d 245, 248 (Colo. App. 1998).
¶ 12 Defendants have never contended that the mandate in
Gandy IV precluded Gandy’s proposed amendments, and the
district court did not so rule. Rather, defendants acknowledge that
the court had the discretion to grant Gandy’s motion to amend. In
particular, they point to C.R.C.P. 15(d), which authorizes a court to
permit “a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the
pleading sought to be supplemented.” C.R.C.P. 15(d).
¶ 13 “Exercise of the trial court’s discretion under Rules 15(a) and
15(d) is substantially similar and should be governed by the same
considerations.” Eagle River Mobile Home Park, Ltd. v. Dist. Court,
647 P.2d 660, 662 n.4 (Colo. 1982). “In deciding whether to grant a
motion to amend, the trial court must consider the totality of the
circumstances, balancing the policy favoring amendment against
8
the burden the amendment imposes on the other party.” Carney,
97 P.3d at 966.
¶ 14 Appellate review of the trial court’s denial of a motion to
amend is generally limited to determining whether the court abused
its discretion. Id. Where, however, a court denies leave to amend
on grounds that the amendment would be futile because it cannot
survive a motion to dismiss, we review that legal question de novo.
Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002).
III. Exhaustion of Administrative Remedies
¶ 15 The district court’s first reason for denying Gandy’s request to
amend his complaint was that he still had to exhaust his
administrative remedies challenging the Executive Director’s post-
remand decision.2
¶ 16 “No inmate shall bring a civil action based upon prison
conditions under any statute or constitutional provision until all
available administrative remedies have been exhausted in a timely
2In their principal briefs, no party substantively addressed this
ruling of the district court. Thus, we ordered supplemental briefing
on the exhaustion issue. We thank the parties for their
supplemental briefs.
9
fashion . . . .” § 13-17.5-102.3(1), C.R.S. 2018. “Failure to allege in
the civil action that all available administrative remedies have been
exhausted in accordance with this subsection (1) shall result in
dismissal of the civil action.” Id.
¶ 17 In his first motion to amend his complaint filed in December
2017, Gandy said that he was still pursuing administrative
remedies and he expected exhaustion to be completed in January
2018.3 He thus asked for more time in which to file an amended
complaint. (As mentioned, the court ultimately denied this first
motion as moot.) In February 2018, he filed an amended complaint
as an attachment to his second motion to amend. In his amended
complaint, he expressly alleged that he had exhausted
administrative remedies as to his new claims by then, and he gave
details of his exhaustion efforts.
¶ 18 Accepting Gandy’s factual allegations as true, we conclude
that he stated enough to survive a motion to dismiss. See § 13-
17.5-102.3(1) (providing that “[f]ailure to allege” that administrative
remedies have been exhausted shall result in dismissal) (emphasis
3His motion actually stated January “2017,” but he clearly meant
January “2018” given that he filed the motion in December 2017.
10
added); see also Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256,
1259 (Colo. 2000) (when considering a motion to dismiss, a court
accepts as true the plaintiff’s allegations of material historical fact).
This conclusion is especially apt given that defendants, in their
opposition to his amended complaint, did not deny that Gandy had
exhausted administrative remedies as to his new claims. Likewise,
in their answer brief in this court, defendants do not deny that he
did so.
¶ 19 In their supplemental brief, however, defendants argue that
Gandy did not exhaust administrative remedies. Relying mainly on
federal cases, they point out that a prisoner must exhaust
administrative remedies before filing a court claim challenging
prison conditions, as opposed to filing a claim and then seeking a
stay to complete the exhaustion process. See, e.g., McKinney v.
Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). Completing the
exhaustion process before filing the claim is required because
“corrective action taken in response to an inmate’s grievance might
improve prison administration and satisfy the inmate, thereby
obviating the need for litigation.” Porter v. Nussle, 534 U.S. 516,
525 (2002). But, according to Gandy’s allegations in his amended
11
complaint, he had exhausted all administrative remedies prior to
filing his amended complaint.
¶ 20 Even so, defendants maintain that he could not have
exhausted administrative remedies as to the amended complaint
because he was required to do so before he filed this action in 2016.
Of course, it was impossible for him to do so because his amended
complaint addresses acts that took place in 2017. And no one
disputes that he exhausted administrative remedies as to the
claims in his original complaint filed in 2016. The question here is
whether Gandy also exhausted administrative remedies as to the
new claims in his amended complaint. Cf. Graham v. Maketa, 227
P.3d 516, 519 (Colo. App. 2010) (recognizing that inmate may have
exhausted administrative remedies as to one claim but not others).
As explained, he alleged enough to show exhaustion at this stage of
the litigation.
¶ 21 Hence, the district court erred by denying his motion to amend
on the ground that he had not exhausted administrative remedies.
IV. Were the Proposed Amendments Futile?
¶ 22 We now turn to the district court’s alternative rationale for
denying the motion to amend — Gandy’s proposed amendments
12
were futile on the merits. An amendment is futile if it “merely
restates the same facts as the original complaint in different terms,
reasserts a claim on which the court previously ruled, fails to state
a legal theory, or could not withstand a motion to dismiss.”
Whitman, 159 P.3d at 712. While a court accepts as true all
allegations of material historical fact when assessing a motion to
dismiss for failure to state a claim, the complaint must “state a
claim for relief that is plausible on its face.” Warne v. Hall, 2016
CO 50, ¶¶ 1-2 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
¶ 23 As the district court noted, Gandy sought to amend his
complaint to assert five claims: (1) a request for mandamus relief
under C.R.C.P. 106(a); (2) an Administrative Procedure Act
violation; (3) an equal protection violation; (4) a claim alleging that
the CDOC Executive Director violated his fiduciary duty; and (5) a
claim alleging that Gandy’s transfer to a less desirable prison
violated the First Amendment.
A. C.R.C.P. 106(a)
1. Mandamus under C.R.C.P. 106(a)(2)
¶ 24 Under C.R.C.P. 106(a)(2), relief may be obtained “[w]here the
relief sought is to compel a lower judicial body, governmental body,
13
corporation, board, officer or person to perform an act which the
law specially enjoins as a duty resulting from an office, trust, or
station.” Mandamus lies to compel the performance of purely
ministerial duties involving no discretionary rights and no exercise
of judgment. Bd. of Cty. Comm’rs v. Cty. Road Users Ass’n, 11 P.3d
432, 437 (Colo. 2000). It is appropriate only if (1) the plaintiff has a
clear right to the relief sought; (2) the defendant has a clear duty to
perform the act requested; and (3) no other remedy is available.
Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo. 1983).
Furthermore, mandamus is not appropriate unless all alternative
forms of relief have been exhausted. Id.
¶ 25 Gandy asserts that, under the CDOC’s regulation, he is
entitled to be transferred to Canada as long as he has met the
written eligibility criteria. He maintains that “the plain language of
the regulation permitting transfer is mandatory.” He is mistaken.
¶ 26 As pertinent here, AR 550-05 provides as follows:
The DOC is delegated the authority by the
governor of Colorado to approve the transfer of
eligible foreign national offenders, pursuant to
the conditions of current treaties which
provide for such transfer, and the approval of
the Department of Justice and the affected
foreign country. Such transfer is a privilege
14
and not a right. The governor of Colorado or
the executive director, at their sole discretion,
may approve or deny the transfer of an
offender.
....
The director of Prisons will review the transfer
application and accompanying
recommendations and forward them with a
recommendation to the executive director for
final review and decision. If the executive
director denies the offender’s application,
he/she will be ineligible for reconsideration for
a period of two years. The offender will receive
written notice of the denial. Exceptions to the
two-year period may exist if temporary
conditions preventing transfers have been
satisfied.
AR 550-05(IV)(B), (IV)(D)(6). In the section addressing the
“Eligibility Criteria for Transfer Consideration,” the regulation lists
seven conditions as well as a catch-all category: “An offender must
meet any additional qualification criteria which treaty nations may
require.” AR 550-05(IV)(C).
¶ 27 AR 550-05 thus entitled Gandy to have his transfer
application processed, reviewed, and decided by the Executive
Director and to receive written notice if the application was denied.
Because those procedures were followed here, the CDOC fulfilled its
obligations under the regulation.
15
¶ 28 Still, Gandy contends that the denial of his application
violated AR 550-05’s stated policy, which is to
return convicted foreign national offenders to
their country of origin consistent with the
interests of the state of Colorado, the United
States Department of Justice, and the
individual offender. The DOC shall house
offenders consistent with their individual
custody and program needs and may reduce
the number of offenders incarcerated in state
correctional facilities.
AR 550-05(I) (emphasis added). This policy, however, does not
create a clear right to be transferred. It requires the CDOC to weigh
the public interest and the offender’s interests when deciding
whether to consent to a transfer. And the regulation does not
impose a clear duty to grant a transfer request. In fact, it plainly
states that “transfer is a privilege and not a right” and the decision
to approve or deny a transfer falls within the “sole discretion” of the
Governor or the Executive Director. AR 550-05(IV)(B).
¶ 29 AR 550-05 comports with the CDOC’s broad discretion over
the interests of Colorado’s correctional system, individual offenders
incarcerated there, and their custody and program needs. See, e.g.,
Reeves v. Colo. Dep’t of Corr., 155 P.3d 648, 651 (Colo. App. 2007)
(the CDOC has “broad discretion” over “the management of
16
prisons”); People v. Watson, 892 P.2d 388, 390 (Colo. App. 1994)
(“[T]ransfer and placement decisions are purely administrative in
nature and are ‘left to the broad discretion of prison
administrators.’” (quoting White v. People, 866 P.2d 1371, 1373
(Colo. 1994))).
¶ 30 Finally, Gandy does not point to any language in either the
Treaty or Colorado’s implementing statute that requires the CDOC,
or Colorado generally, to consent to his transfer. Therefore, the
district court properly concluded that his proposed mandamus
claim was futile.
2. Abuse of Discretion under C.R.C.P. 106(a)(4)
¶ 31 Gandy also alleged that the denial of his transfer application
was “arbitrary and capricious,” and an abuse of discretion.
Construing his allegations liberally, he asserted a claim under
C.R.C.P. 106(a)(4). Under that provision, we may review “whether
the [governmental] body or officer has exceeded its jurisdiction or
abused its discretion, based on the evidence in the record before the
defendant body or officer.” C.R.C.P. 106(a)(4)(I).
¶ 32 Prison officials abuse their discretion if they misinterpret
governing law. Brooks v. Raemisch, 2016 COA 32, ¶ 32. Absent
17
such a misinterpretation, a reviewing court must uphold a decision
by prison officials if it has some support in the record. Buenabenta
v. Neet, 160 P.3d 290, 296 (Colo. App. 2007). “The scope of judicial
review in this type of case is very limited,” id. (citation omitted), and
we sit in the same position as the district court. Brooks, ¶ 33.
¶ 33 To the extent Gandy contends that defendants violated the
regulation, applicable statutes, and the Treaty itself, we disagree.
Under the Treaty, any transfer depends on the consent of the
authorities that have custody of the offender. See Treaty, art. I(a),
art. III, ¶ 3 (“If the authority of the Sending State approves, it will
transmit the application . . . to the authority of the Receiving
State.”); id. at art. III, ¶ 5 (“If the Offender was sentenced by the
courts pursuant to the laws of a state or province of one of the
Parties, the approval of the authorities of that state or province, as
well as that of the federal authority, shall be required.”); Gandy IV,
¶ 8. Under 18 U.S.C. § 4102(6) (2018), the United States Attorney
General is authorized “to make arrangements by agreement with
the States for the transfer of offenders in their custody . . . .”
Section 24-60-2301 provides that “the governor may, on behalf of
the state and subject to the terms of the treaty, authorize the
18
executive director of the [CDOC] to consent to the transfer or
exchange of offenders . . . .” See Gandy IV, ¶¶ 11-12. These
authorities recognize that state prison officials have discretion to
either grant or deny a transfer application.
¶ 34 Gandy contends that denial of his application due to his
“untreated programmatic needs” violates the state statute and the
Treaty because neither requires an offender to be “program
compliant.” But simply because those authorities do not expressly
mention such a requirement does not prohibit prison officials from
imposing it if they deem it consistent with the interests of the state
and the offender. And AR 550-05(I) declares expressly that the
CDOC shall consider an individual offender’s “custody and program
needs.” So, Gandy has not shown that defendants misinterpreted
the governing law.
¶ 35 Moreover, Gandy does not argue that the Executive Director’s
rationale lacks support in the record. That is, he does not deny
that his criminal history indicates a pattern of sexually deviant
behavior that requires specialized sex offense-specific treatment to
reduce recidivism and enhance public safety. We have no basis to
second-guess this determination.
19
¶ 36 To the extent Gandy contends that the Executive Director’s
rationale is manifestly arbitrary or unreasonable, we are not
persuaded. Gandy appears to argue that, because he will leave
Colorado if his transfer request is granted, Colorado officials have
no interest in rehabilitating him. But this argument overlooks his
own interest in rehabilitation, which the CDOC officials must
consider. Furthermore, given that Gandy could be released from
prison as early as 2022, it was not unreasonable for the Executive
Director to conclude that it is in the public interest to treat him
before he is transferred out of the CDOC’s custody.
¶ 37 True, Gandy was not yet eligible for the treatment program at
the time his application was denied. But, as defendants explain,
Gandy would be eligible soon thereafter (beginning in July or
August 2018). Thus, requiring him to participate in a treatment
program before he could be moved to Canada was not an impossible
or unrealistic condition.
¶ 38 Accordingly, even assuming the truth of Gandy’s factual
allegations, we cannot conclude that the Executive Director abused
his discretion when denying Gandy’s transfer application.
20
Therefore, his amended complaint was futile to the extent it raised a
claim under C.R.C.P. 106(a)(4).4
B. Administrative Procedure Act Claim
¶ 39 AR 550-05 outlines the process under which the CDOC
Executive Director ultimately considered and denied Gandy’s
transfer application. Gandy contends that, when promulgating AR
550-05, the CDOC failed to comply with the rulemaking procedures
of section 24-4-103, C.R.S. 2018, of the State Administrative
Procedure Act (APA), §§ 24-4-101 to -108, C.R.S. 2018. As a result,
he concludes that “the regulation must be deemed void in its
entirety.” Once again, he is mistaken.
¶ 40 Section 17-1-103(1), C.R.S. 2018, provides that the Executive
Director has the duty to “manage, supervise, and control the
correctional institutions operated and supported by the state” and
“[t]o develop policies and procedures governing the operation of the
[CDOC].” See Dunlap v. Dep’t of Corr., 2013 COA 63, ¶ 13. “These
4In his proposed amended complaint, Gandy alleged that the
Executive Director had violated section 24-18-103, C.R.S. 2018,
which imposes a fiduciary duty on public officials. Because he does
not discuss this claim on appeal, however, we deem it abandoned.
See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).
21
duties are undeniably broad . . . .” Id.; cf. § 17-1-105(1)(a), C.R.S.
2018 (Executive Director has power to transfer inmates). Section
17-1-111, C.R.S. 2018, states that the provisions of title 17
“relating to the placement, assignment, management, discipline,
and classification of inmates shall not be subject to section 24-4-
103, 24-4-105, or 24-4-106” of the APA.
¶ 41 Gandy says this exemption from compliance with the APA does
not apply to AR 550-05 because it does not concern placement,
assignment, management, discipline, or classification. We agree
with defendants, however, that the transfer of an inmate from the
CDOC’s custody to a foreign nation’s custody involves the
placement or management of an inmate. Therefore, the plain
language of section 17-1-111 includes AR 550-05. See Wisdom
Works Counseling Servs., P.C. v. Colo. Dep’t of Corr., 2015 COA 118,
¶¶ 42, 49-50 (recognizing that “management” has broad meaning in
section 17-1-111). We are not persuaded otherwise by the fact that
the Executive Director’s authority to consent to an inmate’s serving
a sentence in a foreign nation derives in part from section 24-60-
2301. See Dunlap, ¶ 11 (“[T]itle 17 includes broad and extensive
provisions concerning the authority of the Executive Director . . . to
22
administer sentences imposed by the courts. Thus, the fact that
the source of the authority to carry out a death sentence is found in
section 18-1.3-1204 is not dispositive of whether the regulation
relates to a matter within title 17.”) (citations omitted).
¶ 42 In sum, because Gandy’s APA claim would not withstand a
motion to dismiss, the district court correctly denied his proposed
amendment as futile.
C. Equal Protection Claim
¶ 43 According to Gandy, denying his transfer application on the
basis that he has not yet completed a sex offense-specific treatment
program violates his equal protection rights because he “is being
treated more harshly than a person convicted of a violent offense.”
He says that a violent offender would be eligible for transfer before
him because such an offender would not be required to complete a
sex offense-specific treatment program (and thus could be eligible
for transfer earlier than four years before his or her parole eligibility
date).
¶ 44 We agree with defendants, however, that Gandy failed to state
a claim upon which relief could be granted because he is not
similarly situated with a non-sex offender. “[A] defendant is only
23
similarly situated with defendants who commit the same or similar
acts[.]” People v. Fritschler, 87 P.3d 186, 188 (Colo. App. 2003).
Therefore, the Equal Protection Clause did not prohibit the CDOC
from deciding that Gandy has different programmatic needs than
an offender without a history of sexually deviant behavior. The
district court properly concluded that Gandy’s equal protection
claim was futile.
D. First Amendment Claim Based on Retaliation
¶ 45 Gandy contends that defendants unlawfully retaliated against
him for his continued filing of legal actions. Specifically, he argues
his transfer from the Colorado State Penitentiary (CSP) to the
Colorado Territorial Correctional Facility (CTCF) was in retaliation
for his constitutionally protected activity.
¶ 46 A viable claim of retaliation in violation of the First
Amendment must plausibly allege three elements: (1) the plaintiff
engaged in constitutionally protected activity; (2) the defendant’s
actions caused the plaintiff to suffer an injury that would chill a
person of ordinary firmness from continuing to engage in that
activity; and (3) the adverse actions were substantially motivated by
24
the plaintiff’s exercise of constitutionally protected activity. Shero v.
City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
¶ 47 Defendants do not contest that Gandy satisfied the first
element. So, we turn to the others.
1. An Injury that Would Chill a Person of Ordinary Firmness from
Continuing to Engage in Protected Activity?
¶ 48 The question of a chilling effect on a person of ordinary
firmness is an objective inquiry that a court may decide as a matter
of law. Id.
¶ 49 Gandy maintains that the move to the CTCF would have such
a chilling effect because it is a “less desirable facility” than the CSP.
Taking his allegations as true, the transfer to the CTCF resulted in
his losing some privileges and economic opportunities. At the CSP,
Gandy crocheted items that he sold to staff members or donated to
charity. Because the CTCF does not offer “a program where an
offender can legitimately sell hobby products to staff members,” he
“had to send out multiple skeins of yarn intended to be used in
future projects, as well as various unfinished projects,” resulting in
a loss of over $100. In addition, Gandy, age sixty-three, is now
assigned to the top bunk of a two-man cell on a third floor without
25
elevator access. He has “slipped twice attempting to descend from
the top bunk.”
¶ 50 “[L]awful incarceration brings about the necessary withdrawal
or limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system.” Green v. Nadeau,
70 P.3d 574, 577 (Colo. App. 2003) (citation omitted). Thus, “[t]he
supervision and management of the internal procedures of
correctional institutions are within the discretion of institutional
officials and not subject to judicial scrutiny absent exceptional
circumstances.” Id.; see also Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998) (“[I]t is not the role of the federal judiciary to
scrutinize and interfere with the daily operations of a state prison,
and our retaliation jurisprudence does not change this role.”).
¶ 51 Generally, limiting an inmate’s privileges is not deemed a
sufficiently serious consequence to chill a person of ordinary
firmness from continuing to engage in protected conduct. For
instance, in Rocha v. Zavaras, 443 F. App’x 316, 317 (10th Cir.
2011), an inmate alleged that, in retaliation for complaints, he was
placed on “restricted privileges” status that limited his access to
recreational activities, caused him to be assigned to segregated
26
housing, delayed his calls to the cafeteria, restricted his canteen
purchases, prevented him from contacting other inmates, and
required him to wear distinct identifying clothing. Id. Then, “due to
the prohibition on communication, he was injured during a work
project, requiring eight stitches and additional bandages.” Id. Yet,
the court ruled that he had “failed to allege facts necessary to
support the element that any defendant’s actions ‘would chill a
person of ordinary firmness from continuing to’ file grievances or
exercise a constitutional right.” Id. at 319 (citation omitted).
¶ 52 Similarly, verbal harassment and name calling, while
unprofessional and unpleasant, do not constitute adverse action
sufficient to support a retaliation claim. See Requena v. Roberts,
893 F.3d 1195, 1211 (10th Cir. 2018).
¶ 53 On the other hand, “common sense leads to the conclusion
that being taken out of the general population and placed in
twenty-three-hour-per-day confinement in retaliation” for
constitutionally protected activity “would deter a reasonable inmate
from exercising that First Amendment right in the future.” Montoya
v. Bd. of Cty. Comm’rs, 506 F. Supp. 2d 434, 448 (D. Colo. 2007);
see also Allen v. Avance, 491 F. App’x 1, 6 (10th Cir. 2012) (“The
27
prospect of punishment severe enough to satisfy the Eighth
Amendment is sufficient to ‘chill a person of ordinary firmness’ from
exercising his constitutional rights.”).
¶ 54 Considering the circumstances, we conclude that Gandy’s
allegations — that he lost some privileges and income due to his
transfer and must sleep on the top bunk in a third-floor cell — do
not assert adverse action sufficient to support a retaliation claim.
¶ 55 Even assuming, however, that his transfer to the CTCF was an
act that would chill a person of ordinary firmness from continuing
to petition the courts for relief, we conclude that he failed to satisfy
the third element of a retaliation claim. We turn to that issue next.
2. Was The Transfer Substantially Motivated as a Response to
Gandy’s Exercise of Constitutionally Protected Conduct?
¶ 56 An inmate “is not inoculated from the normal conditions of
confinement experienced by convicted felons serving time in prison
merely because he has engaged in protected activity.” Peterson, 149
F.3d at 1144. Therefore, the inmate “must prove that ‘but for’ the
retaliatory motive, the incidents to which he refers . . . would not
have taken place.” Id. (citation omitted).
28
¶ 57 Gandy contends that the timing of his transfer reveals
retaliation. He asserts that the CDOC transferred him about two
months after the Gandy IV division ruled in his favor in part. But,
while Gandy alleges that the transfer was retaliatory, he also says
that the CDOC claimed to transfer him “for programming purposes”
(i.e., to allow him to participate in a treatment program). He claims
that this stated reason for his transfer was not enough to justify the
move because CDOC officials “admit that he was not eligible for the
programming he was ostensibly being transferred for.”
¶ 58 As discussed, however, Gandy was due to become eligible for
the treatment program shortly after the transfer. And it makes
sense that prison officials would transfer him ahead of his eligibility
date so that he could begin the program as soon as possible when
he became eligible. Given this treatment-related reason for his
transfer, Gandy did not plausibly allege that, but for the alleged
retaliatory motive, he would not have been relocated to the CTCF. 5
5 Indeed, this treatment-related reason for the relocation is more
consistent with the timing of the transfer than any alleged
retaliatory motive. Although Gandy has filed many legal actions
against the CDOC over several years, he was not transferred until
shortly before he became eligible for the treatment program.
29
¶ 59 To sum up, we conclude that the district court correctly
decided that Gandy’s proposed amendment adding a First
Amendment retaliation claim was futile.
V. Conclusion
¶ 60 The order is affirmed.
JUDGE DUNN and JUDGE BERGER concur.
30