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Date: 09-11-2015

Case Style: Jacob Ind v. Colorado Department of Corrections

Case Number: 14-1168

Judge: Seymour

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Carrie Claiborne of Husch Blackwell LLP, Denver, Colorado (Sudee Mirsafian Wright and Barbara Grandjean of Husch Blackwell LLP, Denver, Colorado; and
Michael T. Raupp of Husch Blackweell LLP Kansas City, Missouri, with her on
the briefs) for Plaintiff-Appellee.

Defendant's Attorney: Jacob D. Massee, Assistant Attorney General (John W. Suthers, Attorney General,
and Kristin A. Lockwood, Assistant Attorney General, with him on the briefs)
Office of the Attorney General, State of Colorado, Denver, Colorado, for
Defendant-Appellant.

Description: Appellee Jacob Ind has been incarcerated in Colorado state prisons since
1992. At the time he filed this lawsuit on March 13, 2009, he was in
administrative segregation at the Colorado State Penitentiary (“CSP”) subject to
a limit of two personal books imposed by the Colorado Department of Corrections
(“CDOC”). Mr. Ind filed this action pursuant to 42 U.S.C. § 1983, claiming the
book limit was a substantial burden on his sincerely-held religious beliefs in
violation of his constitutional rights and the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq.1
On June 27, 2011, Mr. Ind was transferred out of administrative segregation
and into the general population, where he is now allowed 15 personal books. The
CDOC moved to dismiss the case as moot. Although the magistrate judge
recommended the motion be granted, the district court concluded Mr. Ind would
likely be returned to segregation in the future and denied the motion. Following a
bench trial, the court held CDOC’s two-book policy violated Mr. Ind’s rights
1RLUIPA provides in relevant part:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . .
unless the government demonstrates that imposition of the burden on
that person–
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a).
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under RLUIPA and directed that, in the event plaintiff returns to administrative
segregation at CSP, CDOC would be enjoined from enforcing the policy against
him. CDOC appeals, arguing, inter alia, that the case is moot. We hold that Mr.
Ind’s transfer from administrative segregation to the general population moots his
claim, thereby depriving us of jurisdiction.
I
CSP is a Level V security correctional institution; it houses the most
violent and dangerous offenders in what is known as “administrative
segregation.” Aplt. App. at 961, 963. Administrative segregation is designed to
be a temporary placement with the goal of “facilitat[ing] change in offender
behavior and progress[ing] them back to a general population permanent facility.”
Id. at 962.
Offenses that can lead to placement in administrative segregation include
murder, rape, escape or attempted escape, inciting to riot, engaging in a riot,
possession of dangerous contraband or security threat group activity such as
recruiting for a gang.2 Id. at 963-64. Offenders are only assigned to
2The Colorado Department of Corrections Administrative Regulation
defined “Security Threat Group” during the relevant time period as follows:
A group of three or more individuals with a common interest, bond
or activity characterized by criminal or delinquent conduct, engaged
in either collectively or individually, with the potential to create a
security threat to DOC facilities or offices and or functions within
DOC. This shall include, but not be limited to, gangs, and disruptive
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administrative segregation after they have had a due process hearing, although
inmates can be placed in administrative segregation prior to the hearing on what
is known as “removal from population status.” Id. at 964.
When Mr. Ind was in administrative segregation at CSP, there were four
levels. Level 1 was reserved for offenders who acted out or compromised
security in the facility. Ordinarily, however, when an offender was assigned to
administrative segregation, he was placed at Level 2. After 90 days, he would be
reviewed for progression to Level 3. After 90 days at Level 3, he would be
reviewed again for progression either to Level 4A or 4B. After completing the
program at Level 4, the offender progressed to a general population facility. In
all, administrative segregation was intended to take a minimum of nine months to
complete, although it could take longer depending on the severity of the offense
and the inmate’s behavior. Each level of administrative segregation at CSP had
certain restrictions, including property restrictions. Pertinent to this dispute,
Level 2 and 3 offenders were restricted to two personal books.
Mr. Ind was assigned to administrative segregation from September 1995 to
April 2003, when he was transferred to the general population at Limon
Correctional Facility (“Limon”). On September 17, 2007, he was removed from
Limon to CSP on “removal from population” status and charged with violating the
and deviant groups.
Aplt. App. at 285.
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Code of Penal Discipline by (1) attempting to incite a riot and (2) verbal abuse.3
He was convicted of the charges at his disciplinary hearing, and subsequently was
served with a notice of an administrative segregation hearing. At the conclusion
of the hearing, he was assigned to administrative segregation at CSP.
Mr. Ind was held in administrative segregation at CSP until December 3,
2009, when he was transferred from CSP to Centennial Correctional Facility
(“CCF”), a prison with both Level IV and Level V units where inmates are housed
in either close custody or administrative segregation. There, he was subject to a
limitation of five personal books. Id. at 99-114. On June 27, 2011, he was
transferred from CCF back to Limon, a Level IV facility, where he is housed in
the general population. He has remained at Limon since then.
Mr. Ind filed his original Complaint against CDOC, prison officials, and
employees while he was still at CSP. After submitting several amended
pleadings, he filed his final Amended Complaint on October 25, 2010. He
primarily challenged the facility level policies at CSP, which he alleged interfered
with the practice of his religion.4 Among his complaints, Mr. Ind contended that
3According to the Notice of Charge, a guard working the evening
medication line heard Mr. Ind say to fellow inmates in the line, “. . . think they’re
beginning to realize how vulnerable they are, we could rush them and take their
guns . . . fucking cowards.” Id. at 1091.
4Mr. Ind is a follower of “Christian Separatism,” a subgroup of the
“Christian Identity Faith” which has been described as “rest[ing] upon White
Supremacy principles, teaching that all other races and religions are inferior.”
Ind v. Wright, 52 Fed. Appx. 434, 436 (10th Cir. 2002) (unpublished decision).
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the policy limit of two personal books per inmate in administrative segregation–as
opposed to a 15-book limit for inmates in the general population–was a
substantial burden on his sincerely-held religious beliefs. He asserted claims for
violation of federal and state constitutional rights as well as RLUIPA, and sought
declaratory and injunctive relief and damages. Id. at 198-200. Before trial, Mr.
Ind dismissed four of his five claims. Ultimately the case proceeded to trial only
against CDOC and only with respect to the two personal books limitation. Id. at
1272.
On January 20, 2012, defendants filed a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(1), contending Mr. Ind’s transfer to Limon rendered his
remaining claims moot because he was no longer subject to the restrictions giving
rise to his suit. They also asserted the claims were barred by Eleventh
Amendment sovereign immunity. The magistrate judge entered a
recommendation that the motion be granted based on mootness. The district court
declined to adopt the recommendation, however, finding there was a reasonable
likelihood Mr. Ind would be returned to administrative segregation at some point
in the future and therefore his claim was not moot. Id. at 330-39, 342. The court
also rejected defendants’ sovereign immunity claim. Id. at 341-42.
At the conclusion of a two-day bench trial, the district court entered Final
Findings of Fact and Conclusions of Law, holding that CSP’s book policy, as
applied to Mr. Ind, violated RLUIPA. Id. at 1272-1314. The court did not
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invalidate the policy as to all CSP inmates but stated, “[S]hould Plaintiff return to
administrative segregation at CSP, Defendant is enjoined from enforcing against
him its current book limitation policy, set forth in I/A 850-06.” Id. at 1315-16.
The court also concluded that Mr. Ind was entitled to recover reasonable attorney
fees. Id.
II
Before reaching the merits of this case, we must consider the jurisdictional
question of mootness. The doctrine of mootness is grounded in Article III’s
limitation on the jurisdiction of federal courts to “cases and controversies.” See
U.S. Const. art. III, § 2, cl. 1. At the start of litigation, a plaintiff must show
standing under Article III by demonstrating: “(1) an injury in fact; (2) a causal
connection between the injury and the challenged action; and (3) a likelihood that
a favorable decision will redress the injury.” Jordan v. Sosa, 654 F.3d 1012,
1019 (10th Cir. 2011) (emphasis added) (citing Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000)).
“Mootness is a threshold issue because the existence of a live case or
controversy is a constitutional prerequisite to federal court jurisdiction.”
McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (citation
omitted). Moreover, “[t]his requirement exists at all stages of federal judicial
proceedings, and it is therefore not enough that the dispute was alive when the
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suit was filed; the parties must continue to have a personal stake in the outcome.”
Id.
“In deciding whether a case is moot, the crucial question is whether
granting a present determination of the issues offered will have some effect in the
real world. When it becomes impossible for a court to grant effective relief, a
live controversy ceases to exist, and the case becomes moot.” Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (citation and quotation marks
omitted). Put another way, a case becomes moot “when a plaintiff no longer
suffers ‘actual injury that can be redressed by a favorable judicial decision.’”
Rhodes v. Judiscak, 676 F.3d 931, 933 (10th Cir. 2012) (quoting Iron Arrow
Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)). Because mootness is an issue
of subject matter jurisdiction, it can be raised at any stage of the proceedings.
See Kennedy v. Lubar, 273 F.3d 1293, 1301-02 (10th Cir. 2001).
But a court will not dismiss a case as moot if: “(1) secondary or ‘collateral’
injuries survive after resolution of the primary injury; (2) the issue is deemed a
wrong capable of repetition yet evading review; (3) the defendant voluntarily
ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is
a properly certified class action suit.” Riley v. INS, 310 F.3d 1253, 1257 (10th
Cir. 2002) (citations omitted). The second and third exceptions are at issue in this
case.
The district court found the voluntary cessation exception applied. In so
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doing, the court noted Mr. Ind had at that time been incarcerated at CSP and/or
CCF in administrative segregation for more than 11 of his 17 years in prison and
“is a member of a Security Threat Group who is, by his own admission, actively
recruiting members to his group.” Aplt. App. at 340. Accordingly, the court
found “there is a reasonable likelihood that Plaintiff will be returned to CSP at
some point in the future.” Id. at 341. The court did not address applicability of
the “capable of repetition, yet evading review” exception. Id. at 341 n.7. On
appeal, however, Mr. Ind contends both exceptions apply.
A. Voluntary Cessation
A plaintiff’s claim is not rendered moot by the voluntary cessation of a
challenged practice which the defendant is free to resume at any time.
Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 892 (10th Cir.
2008). This exception to mootness “exists to counteract the possibility of a
defendant ceasing illegal action long enough to render a lawsuit moot and then
resuming the illegal conduct.” Id.
Voluntary cessation may moot litigation, however, if two conditions are
satisfied: “‘(1) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur, and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged violation.”
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th
Cir. 2010) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
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The defendant “bears the ‘heavy burden of persua[ding]’ the court that the
challenged conduct cannot reasonably be expected to start up again.” Id. at 1116
(quoting Friends of the Earth, Inc., 528 U.S. at 189). Moreover, “[v]oluntary
cessation of offensive conduct will only moot litigation if it is clear that the
defendant has not changed course simply to deprive the court of jurisdiction.” Id.
at 1115 (quotation marks and citation omitted).
The record in this case is devoid of evidence that Mr. Ind’s return to the
general population was a ploy by CDOC to deprive the court of jurisdiction.
Instead, the record establishes that he was placed in the general population after
he successfully completed the required phases of the administrative segregation
program.
Mr. Ind nevertheless asserts, and the district court agreed, that his transfer
out of administrative segregation did not render his claim moot because his
history of having spent more than half of his prison sentence in administrative
segregation demonstrates a reasonable probability he will return there. But this
position ignores the well-established principle that “for purposes of assessing the
likelihood that state authorities will reinflict a given injury, we generally have
been unwilling to assume that the party seeking relief will repeat the type of
misconduct that would once again place him or her at risk of that injury.” Honig
v. Doe, 484 U.S. 305, 320 (1988); McAlpine v. Thompson, 187 F.3d 1213, 1217
(10th Cir. 1999) (quoting Honig).
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Moreover, Mr. Ind has remained in the general population for more than
four years since his last release from administrative segregation, and for three
years since the district court entered its order finding a reasonable likelihood that
CDOC would send Mr. Ind back to administrative segregation. Furthermore,
while the CDOC considered Mr. Ind a member of a white supremacist Security
Threat Group for some period of time, it removed that affiliation from his profile
prior to trial after he submitted the proper request form. Given these
circumstances and our precedent, we will not assume Mr. Ind will commit future
violations that will land him in administrative segregation once again.
It is undisputed that Mr. Ind’s release from administrative segregation has
put an end to the alleged violation of his rights. Mr. Ind remains in the general
population, and we conclude that CDOC has carried its burden of showing the
challenged conduct cannot reasonably be expected to resume. Accordingly, the
voluntary cessation exception does not rescue Mr. Ind’s claim from mootness.
B. Capable of Repetition
Mr. Ind. also relies on another exception to mootness, whether the issue is a
wrong capable of repetition which will evade review. In contrast to the voluntary
cessation exception, which places the burden of proof on the defendant, the
plaintiff bears the burden of establishing the issue is a wrong capable of repetition
yet evading review. Jordan, 654 F.3d at 1035. The exception is “narrow,”
McAlpine, 187 F.3d at 1216, and “is only to be used in exceptional situations,”
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Jordan, 654 F.3d at 1035 (citations and quotation marks omitted).
To avail himself of the exception, a plaintiff must establish two
requirements: “(1) the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be subjected to the same action
again.” Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
curium)). The Supreme Court further amplified this standard in Murphy v. Hunt,
455 U.S. 478 (1982) (per curium), stating:
The Court has never held that a mere physical or theoretical
possibility was sufficient to satisfy the test stated in Weinstein. If
this were true, virtually any matter of short duration would be
reviewable. Rather we have said that there must be a “reasonable
expectation” or a “demonstrated probability” that the same
controversy will recur involving the same complaining party.
Id. at 482 (quoting Weinstein, 423 U.S. at 149).
Our case of McAlpine v. Thompson, 187 F.3d 1213 (10th Cir. 1999), is
illustrative. There, an inmate member of the Native American Church filed a
petition for mandamus seeking an order requiring the prison warden to provide
peyote and other ceremonial items for church ceremonies in his prison. Id. at
1214. The district court dismissed the claim on its merits, and McAlpine
appealed. While the appeal was pending, McAlpine completed his term of
incarceration and was released on parole. Id. at 1214-15. The warden contended
the inmate’s release rendered his claim moot, but the former inmate argued that
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the acts he complained of were “capable of repetition, yet evading review”
because he was subject to revocation of his parole and reincarceration. Id. at
1215.
We held that McAlpine failed to establish either of the two required
elements for the exception. With respect to the first element, he had not shown
that there would be insufficient time for him to obtain review of his claim in
federal court in the event he found himself in prison again and raised the same
issue. Id. at 1217. And with respect to the second element, we declined to
assume he would repeat the misconduct that previously landed him in prison,
citing Honig. Id. at 1218.
We need not decide in this case whether Mr. Ind has established that there
would be insufficient time to challenge the two-book limitation if he were ever
returned to administrative segregation because he has not met the second prong of
the “capable of repetition” exception to the mootness doctrine. As discussed
above, Mr. Ind has not shown a reasonable likelihood he will be subjected to the
same treatment again because, pursuant to our precedent, we decline to assume he
will repeat the misconduct that previously got him sent to administrative
segregation. See Honig and McAlpine, supra.
The Fourth Circuit reached the same conclusion in Incumaa v. Ozmint, 507
F.3d 281 (4th Cir. 2007). There, Kenyatta Incumaa, an inmate serving a life
sentence in South Carolina state prison, brought a § 1983 action against the
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South Carolina Department of Corrections (“SCDC”), alleging its policy barring
inmates in the Maximum Security Unit (“MSU”) from receiving publications via
the mail violated his First Amendment rights. He sought declaratory relief and an
injunction against enforcement of the ban. Id. at 284. The district court granted
summary judgment in favor of the SCDC on the merits, finding the ban did not
violate Incumaa’s constitutional rights. Id. Shortly after Incumaa filed his
opening appellate brief, he was released from maximum security. Id. at 285.
Ultimately, the SCDC moved to dismiss the appeal as moot, arguing Incumaa was
no longer housed in the maximum security unit and there was no indication he
would ever be subjected to the challenged policy again, absent some sufficiently
recalcitrant behavior on his part. Id. As here, Incumaa invoked both the
voluntary cessation and “capable of repetition” exceptions. Id. at 288-89.
With respect to the voluntary cessation exception, the court found no
indication in the record that the SCDC removed Incumaa from maximum security
in an effort to avoid judicial review of the challenged policy, or that the release
was “anything but normal operation of the review procedures used in making the
determination to move an inmate out of the MSU.” Id. at 288. It further stated:
[W]e must assume, from the lack of any evidence to the contrary, that
the SCDC promoted Incumaa to the SMU because he ceased his bad
behavior. Clearly, this is not the kind of “voluntary cessation” that the
exception covers. More to the point, it is clear that if Incumaa is ever
returned to the MSU, it will be of his own doing, and not because the
SCDC believes that the specter of litigation has passed.
-14-
Id. (emphasis in original).
The court also rejected Incumaa’s argument that the issue was one which,
although moot, was capable of repetition yet evading review. It held that Incumaa
had not carried his burden of establishing there was a reasonable expectation he
would be subject to the publications ban again in the future because “assignment
to the MSU is directly tied to an inmate’s bad behavior, so Incumaa thus ‘holds the
keys’ to his remaining free from the unit.” Id. at 289. The court concluded that
“[b]ecause Incumaa will only find himself in the MSU again if he bucks prison
policy, and because we presume that he will abide by those policies, . . . the
‘capable of repetition, yet evading review’ exception to mootness does not apply
in this case.” Id.
Here, as in Incumaa, Mr. Ind has failed to carry his burden of establishing
the “capable of repetition” exception to the mootness doctrine.

5We deny as moot the CDOC’s motion for leave to file a Second
Supplemental Appendix.
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Outcome: As the Fourth Circuit recognized, “[T]he Constitution forbids us from
pontificating about abstractions in the law or merely giving advice about the
potential legal deficiencies of law or policy when no ongoing controversy exists
with respect to that law or policy.” Id. Mr. Ind’s claim is moot because he is no
longer in administrative segregation.
Accordingly, we REVERSE the decision of the district court and REMAND
with instructions to dismiss the case as moot.5

Plaintiff's Experts:

Defendant's Experts:

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