Gandy v. Zavaras et al

Filing 122

ORDER AFFIRMS and ADOPTS the Magistrate Judges 120 Report and Recommendations; Granting 112 Motion to Dismiss for Lack of Jurisdiction; Plaintiffs remaining claims are moot and this case is DISMISSED for lack of subject matter jurisdiction, by Judge Christine M. Arguello on 10/13/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 09-cv-00205-CMA-KMT
ROBERT D. GANDY,
Plaintiff,
v.
JULIE RUSSELL, and
STEVE HARTLEY,
Defendants.

ORDER ADOPTING AND AFFIRMING SEPTEMBER 19, 2011
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This case was referred to United States Magistrate Judge Kathleen M. Tafoya
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. On September 19, 2011, the
Magistrate Judge issued a Recommendation, concerning Defendants’ Motion to Dimiss
[sic] for Lack of Jurisdiction and Motion to Vacate Final Pretrial Conference (Doc.
# 112). The Magistrate Judge recommended that Defendants’ Motion be granted
and the remaining claims be dismissed for lack of subject matter jurisdiction.1
On September 28, 2011, Plaintiff Robert E. Gandy, proceeding pro se,2 filed timely
objections to the Recommendation. (Doc. # 121.)
1

By Minute Order (Doc. # 114), the Magistrate Judge granted Defendants’ Motion to
Vacate the Final Pretrial Conference.
2

Because Plaintiff is proceeding pro se, the Court “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines
v. Kerner, 404 U.S. 519, 520 (1972)).

I. BACKGROUND
The factual and procedural background of this matter is set out at length in
Magistrate Judge Tafoya's Recommendation, and the Court incorporates that recitation
herein. Thus, the Court provides only a brief overview of the facts and procedural
history and will expand on them, when necessary, within the analysis.
Plaintiff is a state prisoner in the custody of the Colorado Department of
Correction (“CDOC”), currently incarcerated at the Arkansas Valley Correctional Facility
(“AVCF”). In his Complaint, filed on February 3, 2009, Plaintiff alleged that Defendants’
failure to provide him with alternative drug testing methods as an accommodation for his
benign prostatic hyperplasia (“BPH”) condition violates the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12131, et seq. Plaintiff seeks injunctive relief, namely an order
requiring the CDOC to evaluate him under the ADA guidelines and requiring the CDOC
to allow him to submit to drug testing by means other than urine testing. (Doc. # 3 at 9.)
On January 19, 2011, less than two weeks after the Magistrate Judge
recommended that Defendants’ Motion for Summary Judgement be denied (Doc.
# 102), Defendant Russell, the CDOC ADA Inmate Coordinator, issued a new ADA
Accommodation Resolution for Plaintiff that confirmed his BHP condition and provided
him with the following accommodation:
Alternative testing procedures in accordance with Administrative Regulation 300-20. If the offender is unable to provide a sample after additional
water and time have been provided (AR 300-20.C.1.), alternative testing
procedures will be utilized to include, but not limited to urine, saliva, hair
or other methods as determined necessary.

2

(Doc. # 112-1) (Emphasis added.) Accommodation resolutions serve as notice to all
CDOC employees, contract workers, and volunteers that a prisoner has an approved
accommodation.3 (See Doc. # 119-3, Administrative Regulation (“AR”) 750-04.IV.D.9.)
If, for any reason, an accommodation cannot be implemented or allowed, the ADA
Inmate Coordinator is to be immediately contacted. (Id.)
After this Court affirmed the Magistrate Judge’s Recommendation on May 23,
2011 (Doc. # 110), Defendants filed the instant Motion to Dismiss for Lack of
Jurisdiction, arguing that Plaintiff’s claims were mooted by the January 19, 2011
Accommodation Resolution. In response, Plaintiff contends that his claims are not
moot because the Accommodation Resolution is not a reasonable accommodation
that adequately resolves his claims. In her Recommendation, the Magistrate Judge
concluded that Plaintiff’s remaining claims were moot and the case should be
dismissed.
II. STANDARDS OF REVIEW
A.

RECOMMENDATION OF MAGISTRATE JUDGE
When a magistrate judge issues a recommendation on a dispositive matter,

Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” Fed. R. Civ. R. 72(b)(3). In conducting its review, “[t]he district court judge

3

A court may take judicial notice of agency rules and regulations. Ray v. Aztec Well
Serv. Co., 748 F.2d 888, 889 (10th Cir. 1984).

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may accept, reject, or modify the recommendation; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id.
B.

MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate

if the Court lacks subject matter jurisdiction over claims for relief asserted in the
complaint. “The burden of establishing subject matter jurisdiction is on the party
asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189
(10th Cir. 2008). Rule 12(b)(1) challenges are generally presented in one of two forms:
“[t]he moving party may (1) facially attack the complaint's allegations as to the existence
of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint
by presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003));
see Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
III. ANALYSIS
Article III of the United States Constitution limits a federal court’s jurisdiction to
“cases and controversies.” U.S. Const. art III, § 2, cl. 1. “Mootness is a threshold issue
because the existence of a live case or controversy is a constitutional prerequisite to
federal court jurisdiction.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601
F.3d 1096, 1109 (10th Cir. 2010) (quoting Disability Law Ctr. v. Millcreek Health Ctr.,
428 F.3d 992, 996 (10th Cir. 2005)). “Mootness is implicated when a case or controversy, originally present, ceases to exist.” Smallwood v. Scibana, 227 F. App’x 747, 748
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(10th Cir. 2007). A case or controversy ceases to exist “when it is impossible to grant
any effectual relief.” Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884,
891 (10th Cir. 2008). When a plaintiff seeks injunctive relief, “[p]ast exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive relief
. . . if unaccompanied by any continuing, present adverse effects.” Id. (quoting Beattie
v. United States, 949 F.2d 1092, 1094 (10th Cir. 1991)); see also S. Utah Wilderness
Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) (“If an event occurs while a case is
pending that heals the injury and only prospective relief has been sought, the case must
be dismissed.”).
In his objections, Plaintiff asserts that the January 19, 2011 Accommodation
Resolution does not moot this case because it is “an accommodation in name only” and
Defendant Russell “still refuses to recognize Plaintiff’s disability and provide him with an
accommodation which is reasonable and meaningful.”4 (Doc. # 121 at 2.) By issuing
the Accommodation Resolution, which confirms Plaintiff’s BPH condition, Defendant
Russell has recognized both that Plaintiff has a disability and that the disability entitles
him to an accommodation. The issue that warrants more thorough analysis is whether
the Accommodation Resolution provides Plaintiff with a reasonable accommodation.

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Plaintiff also contends that the Accommodation Resolution is discriminatory in its
application because he is only to be provided with alternative testing after waiting for two hours,
whereas non-disabled offenders are generally able to comply within fifteen minutes to a half
hour. The Court will not entertain this argument because Plaintiff never raised this issue prior to
his objections. “Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Dillard v. Bank of New York, No. 09-cv-03008, 2011
WL 2714118, at *7 (D. Colo. July 13, 2011) (quoting Marshall v. Chater, 75 F.3d 1421, 1426
(10th Cir. 1996).

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The Accommodation Resolution states that Plaintiff is entitled to alternative
testing procedures in accordance with AR 300-20. Plaintiff argues that this is a
meaningless accommodation because AR 300-20 is the “regulation o[n] which Plaintiff
based his complaint on to begin with.” (Doc. # 1212 at 2.)
AR 300-20 governs drug testing procedures for inmates in the custody of the
CDOC. (See Doc. # 29-1.) AR 300-20 provides that inmates “will have one and onehalf hours to produce the required urine sample from the time they are ordered to do so”
and “will be allowed to consume up to 16 oz. of water to help produce the urine sample.”
(Id., AR 300-20.IV.B.3.) In the event that an inmate is unable to provide a urine sample
within this time, he will be offered “an additional time of 30 minutes and an additional
8 oz of water.” (Id., AR 300-20.IV.C.1.) Although AR 300-20 provides that “any other
method testing approved by the Inmate Drug Reduction Program (IDRP”)” may be used,
there is nothing in the regulation that mandates alternative methods be used in lieu
of additional time and water for non-disabled offenders. The January 19, 2011
Accommodation Resolution, however, specifically states that “alternative testing
procedures will be utilized” if Plaintiff is unable to provide a sample after additional time
and water were provided. (Doc. # 112-1.) Thus, the Accommodation Resolution
provides for an accommodation that is not provided to non-disabled prisoners (and
was not provided to Plaintiff at the commencement of this action).
Plaintiff next argues that the Accommodation Resolution does not provide
meaningful accommodation under the ADA because it does not state that his medical
condition interferes with his ability to produce a urine sample, nor does it mandate that
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a particular alternative testing method be utilized. (See Doc. # 112-1.) Although the
Accommodation Resolution does not explicitly state that Plaintiff’s condition interferes
with his ability to produce a urine sample, it does confirm his BPH condition and
provides for alternative testing methods, which is sufficient to alert any testing officer
that Plaintiff has difficulty urinating. Plaintiff’s concern that the testing officer is given
too much discretion to determine which alternative testing method should be utilized
is also unfounded. In his Complaint, Plaintiff claims that, due to his BPH condition,
additional time and water caused him “pain and suffering” and did not ameliorate his
difficulty in providing the required sample. (Doc. # 3 at 6.) Thus, additional time and
water would not be a reasonable accommodation under the ADA. However, the
Accommodation Resolution provides that the testing officer must provide “alternative
testing procedures” to additional time and water if Plaintiff is unable to provide a urine
sample.5 Mr. Steinbeck attests that Plaintiff will receive alternative testing procedures,
such as saliva, hair, or other methods (Doc. # 112-2), and Plaintiff has no interest in
which of these alternative testing procedures will be utilized. See Selenke v. Med.
Imaging of Colo., 248 F.3d 1249, 1263 (10th Cir. 2001) (the ADA only requires a
reasonable accommodation be provided, not the accommodation that a plaintiff prefers).

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Notably, there is nothing in AR 300-20 that requires Plaintiff to consume additional
water. AR 300-20 provides only that Plaintiff, if he is unable to urinate when called for a random
drug test, will be “allowed to consume up to 16 oz. of water,” and if he is still unable to urinate,
he will be offered an additional eight ounces of water. (See Doc. # 29-1, AR 300-20.IV.B.3; AR
300-20.IV.C.1.) (Emphasis added.) By affidavit, Robert Steinbeck, who oversees the Offender
Drug Screening Program at AVCF, confirms that Plaintiff would not be forced to consume
additional water. (Doc. # 112-2, ¶¶ 2, 6.)

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Plaintiff concedes that Mr. Steinbeck’s position as stated in his affidavit “offer[s]
some protection.” Nevertheless, Plaintiff contends that he is only protected insofar as
Mr. Steinbeck remains at AVCF and retains his position. First and foremost, the Court
disagrees with Plaintiff that the Accommodation Resolution is not facially sufficient as
there is nothing in AR 300-20 or in the Accommodation Resolution that requires Plaintiff
to consume additional water; indeed, it mandates that alternative testing procedures be
utilized. Moreover, Plaintiff’s concern that Mr. Steinbeck will leave AVCF or change
positions is wholly speculative. See Jordan v. Sosa, --- F. 3d ---, 2011 WL 2854139,
at *14-15 (10th Cir. July 20, 2011) (rejecting prisoner’s argument that his claims were
not mooted by transfer to new prison when it was “entirely speculative” that the prisoner
might be transferred back to his former facility); Armstrong World Indus., Inc. v. Adams,
961 F.2d 405, 411-12 (3d Cir. 1992) (“Where the plaintiff's action is based on a
contingency, it is unlikely that the parties' interests will be sufficiently adverse to give
rise to a case or controversy within the meaning of Article III.”). Thus, the Court finds
that the Accommodation Resolution resolves Plaintiff’s claims and this Court cannot
“grant any effectual relief.” Chihuahuan Grasslands Alliance, 545 F.3d at 891.
Plaintiff’s claims are, therefore, moot.
In his response to Defendants’ Motion to Dismiss, Plaintiff contends that his
claims are saved from a determination of mootness because they are “capable of
repetition, yet evade review.” (Doc. # 115 at 1.) The capable-of-repetition exception to
mootness is a “special circumstance[] whereby an action will not be dismissed as moot
even though the party seeking relief is no longer affected by the action complained of.”
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Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 434 (10th Cir. 1978). This exception
is a narrow one that is only used in rare circumstances. Chihuahuan Grasslands
Alliance, 545 F.3d at 892. Outside of the class-action context, the
doctrine has been limited to the situation where two elements combine:
(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.
Sosa, 2011 WL 2854139, at *17 (quoting Weinstein v. Bradford, 423 U.S. 147, 149
(1975) (per curium)). Plaintiff bears the burden of establish both prongs of this two-part
test. Id.
Although it so happened that this case was not fully adjudicated before
Plaintiff’s claims became moot, Plaintiff has provided absolutely no evidence that this
type of action is necessarily of short duration. See id.; Finberg v. Sullivan, 634 F.2d 50,
55 (3d Cir. 1980) (stating that a plaintiff “must show that the activity is ‘by its very nature’
short in duration, ‘so that it could not, or probably would not, be able to be adjudicated
while fully live.’”) (quoting Dow Chemical Co. v. EPA, 605 F.2d 673, 678 n.12 (3d Cir.
1979)). Plaintiff has also failed to provide any evidence showing that there exists a
reasonable expectation that he will not be provided with a meaningful accommodation
for his BPH condition. In the absence of such evidence, Plaintiff cannot meet either
prong of the two-part test, and his claim should not be excepted from a mootness
determination.

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IV. CONCLUSION
Based on the foregoing, the Court concludes that the Magistrate Judge’s
Recommendation is correct. Therefore, Plaintiff’s Objections (Doc. # 121) are
OVERRULED, and the Court AFFIRMS and ADOPTS the Magistrate Judge’s
Recommendation as the findings and conclusions of this Court.
Accordingly, it is ORDERED that Defendants’ Motion to Dimiss [sic] for Lack of
Jurisdiction (Doc. # 112) be GRANTED. Plaintiff’s remaining claims are moot and this
case is DISMISSED for lack of subject matter jurisdiction.
DATED: October

13

, 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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