Gibson v. Campbell et al
ORDER denying 377 Motion to Dismiss All Remaining Claims on Grounds of Mootness by Judge Wiley Y. Daniel on 02/06/14.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 09-cv-00983-WYD-KLM
WELLMAN E. GIBSON,
ANNA MARIE CAMPBELL,
C. HOLST, AIC,
LT. STEINBECK, and
ORDER ON MOTION TO DISMISS
This matter is before the Court on Defendants’ Motion to Dismiss All Remaining
Claims on Mootness Grounds filed June 5, 2013. Defendants seek to dismiss Plaintiff’s
remaining claims on mootness grounds pursuant to Fed. R. Civ. P. 12(b)(1) because
they contend that this lawsuit concerns Colorado Department of Corrections [“CDOC”]
policies that existed prior to amendments to the Americans with Disabilities Act [“ADA”],
and Plaintiff has received all the relief requested. A response in opposition to the
motion was filed on November 4, 2013, after counsel were appointed for Plaintiff, and a
reply was filed on November 18, 2013.
I note that in July 2012 Defendants filed a motion to dismiss on similar grounds,
arguing that Plaintiff’s claims were moot as he had received all the relief requested.
(ECF No. 319.) Specifically, Defendants argued that Plaintiff’s claims were moot as his
application for participation in the Talking Book program had been approved as of June
25, 2012. Additionally, Defendants asserted that Plaintiff could obtain Jewish Braile
Institute [“JBI”] materials through an inter-library loan pursuant to a request to the talking
book program. Magistrate Judge Mix issued a Recommendation of United States
Magistrate Judge on August 21, 2012 [“August 2012 Recommendation”], that
recommended denying the motion. (ECF No. 332.) On September 25, 2012, I issued
an Order Adopting and Affirming Recommendation of United States Magistrate Judge,
and denied Defendants’ previous motion to dismiss. (ECF No. 339.)
DEFENDANTS’ ARGUMENTS AS TO MOOTNESS
I now turn more specifically to Defendants’ arguments in their current motion to
dismiss, wherein they assert that the CDOC changed its policies concerning requests
for accommodation that Plaintiff challenges in this suit. While their policies pre-ADA
amendment focused on the severity of an inmate’s limitation and required health care
professionals to verify an inmate’s disability, this was based on the courts’ focus on
whether a disability existed. Defendants contend that the amendments shifted the focus
from the alleged disability to the reasonableness of the requested accommodation.
Accordingly, the focus of CDOC’s policy shifted to assessing the reasonableness of the
Thus, the CDOC amended Administrative Regulation (AR) 750-04 (attached to
the motion as Ex. A-3) to reflect that an ADA inmate coordinator approve, deny, or offer
a reasonable alternative upon review and investigation of an inmate’s request for
accommodation, including the offender’s description of his functional abilities. As part of
the investigation, the ADA inmate coordinator would refer the inmate to Clinical Services
for a disability screening and a recommendation on the requested accommodation. On
January 1, 2012, in response to the ADA’s amended implementing regulations, the
CDOC amended AR 750-04 to reduce Clinical Services’ involvement in the review of all
accommodation requests and to focus more on the reasonableness of the request. The
January 2012 version of AR 750-04 is CDOC’s current request-for-accommodation
procedures. Inmates need not submit a detailed explanation of their functional abilities,
and the ADA inmate coordinator no longer refers inmates to Clinical Services for a
screening and recommendation; rather, the ADA inmate coordinator is solely
responsible for reviewing, investigating, and authorizing the ADA-related request.
Plaintiff’s requests for accommodation in this case—that he be provided Talking
Book program materials and be allowed to receive materials from JBI—have been
granted pursuant to the CDOC’s current policies based on a finding of reasonableness,
irrespective of whether Plaintiff has been labeled “disabled”. Thus, Defendants argue
that Plaintiff has received the relief requested and his case is moot.
Finally, Defendants contend that because of the changed legal landscape and
CDOC’s related policy changes, the challenged conduct is unlikely to recur. While
between 2007 and 2009 Plaintiff had inconsistent access to the Talking Book program,
they argue this was based on varying conclusions about the severity of Plaintiff’s
impairments consistent with the courts’ pre-amendment construction of the ADA.
Plaintiff’s remaining claims are, according to Defendants, premised on those pre-ADA
Amendment policies. The conduct complained of by Plaintiff is not likely to reoccur
since CDOC’s policies have now been amended under the law, which amendments are
unrelated to this lawsuit. Thus, unlike the situation presented inVigil v. Colo. Dep’t of
Corrections, No. 09-cv-01676-PAB-KLM, 2012 WL 2919660 (D. Colo. July 17, 2012),
Defendants assert that the CDOC’s policy changes were not in response to any court
orders or an attempt to settle or resolve the dispute or to otherwise “avoid responsibility
for [the plaintiff’s litigation] costs.”1
Where a party moves to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1), the attack can be either a facial attack to the allegations of the
complaint or a factual attack. Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.
1990). “[A] facial attack on the complaint’s allegations as to subject matter jurisdiction
questions the sufficiency of the complaint.” Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). Where there is a facial attack, the court must look to the factual
allegations of the Complaint , Groundhog v. Keller, 442 F.2d 674, 677 (10th Cir. 1971),
and “must accept the allegations in the complaint as true.” Holt, 46 F.3d at 1002. In a
factual attack, as in this case where matters were presented outside the pleadings, the
court may consider these matters without converting the motion to a motion for
summary judgment. Id.
As to mootness, this “doctrine provides that although there may be an actual and
justiciable controversy at the time the litigation is commenced, once that controversy
ceases to exist, the federal court must dismiss the action for want of jurisdiction.’”
Magistrate Judge Mix relied on Vigil in her recommendation to deny Defendants’ previous motion to
dismiss. (See August 2012 Recommendation at 5-6.)
Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (quotation omitted); see also
United States v. Juvenile Male, ___ U.S. ___, 131 S. Ct. 2860, 2864 (2011) (“It is a
basic principle of Article III that a justiciable case or controversy must remain ‘extant at
all stages of review, not merely at the time the complaint is filed.’”) (quotation omitted).
Thus, claims for injunctive relief must be dismissed on grounds of mootness unless the
controversy exists at all stages of the proceedings, “not merely at the time the complaint
is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
“‘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. Bur. of Reclamation , 601 F.3d 1096, 1109 (10th Cir. 2010)
(quotations omitted). “‘Without a live, concrete controversy, [the court] lack[s]
jurisdiction to consider claims no matter how meritorious.’” Id. (quotations and internal
quotation marks omitted). Thus, “[a] federal court has no power to give opinions upon
moot questions or declare principles of law which cannot affect the matter in issue in the
case before it.” S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.
As Magistrate Judge Mix noted in her Recommendation on Defendants’ previous
motion to dismiss, a case will not be dismissed 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.’” (August 2012 Recommendation at 4-5) (quoting Riley v.
INS, 310 F.3d 1253, 1257 (10th Cir. 2002) (internal quotation marks omitted)). I find
after careful analysis of the issue that Defendants’ current motion to dismiss on
mootness grounds should also be denied.
First, I find that all of Plaintiff’s claims have not been resolved and the case is not
moot. As Plaintiff points out in his response brief, he seeks injunctive relief that
Defendants acknowledge he is disabled under the ADA. (See Am. Compl. at 5 and 8,
ECF No. 37.) While Defendants appear to argue that such a finding is unnecessary or
even irrelevant, Plaintiff is entitled to have the issue resolved as it is part of this lawsuit.2
As Plaintiff’s response points out, without a judicial determination that Plaintiff is
disabled and without CDOC’s formal recognition of this disability, Plaintiff could again be
stripped of his access to the Talking Book program or other requested materials. While
Defendants provide reassurances that this will not happen, I am not persuaded given
the fact that a disability is required in order to receive accommodations from the CDOC
under the ADA, even post-amendment. See Phillips v. Tiona, 508 F. App’x 737, 747-48
(10th Cir. 2013) (“Title II of the ADA provides that ‘no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.’. . . An individual is disabled if he has a ‘physical or
mental impairment that substantially limits one or more major life activities.’”) (quoting
42 U.S.C. §§ 12132 and 12102(1)(A)).
Related to the above finding, I note that Defendants voluntarily ceased the
challenged practice, even though purportedly made in connection with the amendments
Even if I were to find the primary injuries have resolved, his request that Defendants be required to
acknowledge his disability is certainly a secondary or collateral injury that has not been resolved.
to the ADA. Further, I find that Defendants have not met their “‘heavy burden’ of
showing that ‘it is absolutely clear that “the allegedly wrongful behavior could not
reasonably be expected to recur.’” Vigil, 2012 WL 2919660, at *1 (quoting Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
Finally, as with the previous motion to dismiss, Defendants do not address
Plaintiff’s likely entitlement to his costs if he is determined to be the prevailing party.
(See August 2012 Recommendation at 6.) As in Vigil, granting Defendants’ motion
would permit them to “avoid responsibility for such costs.” 2012 WL 2919660, at *1.3
Based upon the foregoing, it is
ORDERED that Defendant’s Motion to Dismiss All Remaining Claims on Grounds
of Mootness filed June 5, 2013 (ECF No. 377) is DENIED.
Dated: February 6, 2014
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
Finally, while not a basis for denial of the motion, I agree with Plaintiff that Defendants’ motion to
dismiss is to large extent a repackaged version of their previous motion to dismiss. While new facts are
added to the current motion, the previous motion relied on the fact that Plaintiff was provided access to the
talking book program in July 2012 and that he had access to JBI materials, just as this motion does.
“Generally speaking, it is not unfair to deny a litigant a second bite at the apple. . . .” In Re Corey, 583
F.3d 1249, 1251 (10th Cir. 2009).
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