Saunders v. Jacobson et al

Filing 80

ORDER by Magistrate Judge Craig B. Shaffer on 8/3/17 GRANTING 76 Defendant's Third Motion to Dismiss. Because Plaintiffs claim is moot, the court lacks subject matter jurisdiction. Plaintiffs claim is DISMISSED WITHOUT PREJUDICE. Each party shall bear its own costs. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LINDSAY A. SAUNDERS,1
Plaintiff,

Civ. 15-2201-CBS

vs.
ANDERS JACOBSON, in his official capacity as Interim Director of the Colorado Division of
Youth Corrections; and
ERIN JACOBS, in her official capacity as Director of Platte Valley Youth Services Center,
Defendants.
ORDER ON DEFENDANTS’ THIRD MOTION TO DISMISS
Magistrate Judge Craig B. Shaffer
Plaintiff Lindsay A. Saunders sued Defendants Anders Jacobson and Erin Jacobs, in their
official capacities for respectively the Colorado Department of Human Services, Division of
Youth Corrections (“DYC”) and the DYC’s Platte Valley Youth Services Center (“Platte Valley)
for not permitting her to access local news while she was in Platte Valley’s custody. She seeks
prospective injunctive relief in the form of requiring Platte Valley to permit her personal
subscription to the Denver Post, subject to the facility’s existing screening policies. Defendants
move to dismiss the action as moot because Plaintiff is no longer in DYC custody and is not
expected to return to DYC. For the reasons that follow, the court grants the motion and
dismisses this action without prejudice.

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When Plaintiff filed this action she was a minor, and the case was sealed to maintain
confidentiality of her name. Fed. R. Civ. P. 5.2. Plaintiff has since become an adult and does not
assert that her name or other information in the docket should be restricted from public access.
Accordingly, on October 25, 2016 the case was unsealed. Doc. 44. The clerk of court shall
amend the caption to reflect the above.
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BACKGROUND
Plaintiff filed her complaint pro se on October 2, 2015. Doc. 1. On October 7, 2015,
Magistrate Judge Gordon P. Gallagher granted Plaintiff’s request to proceed in forma pauperis
and ordered appointment of a guardian ad litem. Doc. 4. Attorney Megan Anne Baker accepted
the appointment as guardian ad litem on a pro bono basis. Doc. 5.2
Later the same month, Plaintiff sought appointment of a pro bono lawyer. On November
17, 2015, Judge Gallagher granted Plaintiff’s request and placed her on the list seeking pro bono
representation under the court’s Civil Pro Bono Panel, D.C.COLO.LAttyR 15. Doc. 9. Pro bono
counsel Chuan “CiCi” Chen and Douglas L. Abbott accepted the appointment and entered
appearances in respectively March 2016 and November 2016. Docs. 13, 47. Pursuant to initial
review procedures for in forma pauperis complaints, Judge Gallagher required Plaintiff to amend
her complaint. Doc. 18. Through counsel, Plaintiff did so on June 30, 2016. Doc. 19.
On July 1, 2016, the case was redrawn to Judge William J. Martínez, who referred the
case to this magistrate judge for nondispositive proceedings. Docs. 20–22. On September 1,
2016, the parties consented to this magistrate judge’s jurisdiction to hear the case under 28
U.S.C. § 636(c). Doc. 34. Judge Martínez then referred the case to the undersigned for all
purposes. Doc. 36. After Defendants moved to dismiss, the parties agreed that Plaintiff could
file a second amended complaint. Plaintiff’s second amended complaint brought two claims
under 42 U.S.C. § 1983: violation of her First Amendment rights of freedom of speech and
association (first claim), and retaliation for her exercising the right to petition (second claim).
Doc. 39 (“SAC”). Plaintiff subsequently dismissed the retaliation claim. Doc. 52.

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On April 27, 2017, the court granted the guardian ad litem’s motion to withdraw. Doc. 75.
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Plaintiff alleges inter alia that
At all relevant times during Ms. Saunders’s commitment at Platte
Valley, Platte Valley has maintained a stated policy prohibiting its
youth residents from accessing “local media[,] including
newspapers and TV news.” * * * Ms. Saunders has a First
Amendment right to freedom of speech and association that has
been violated by Defendants’ policy to categorically ban access to
local news media.
The policy as established, maintained, and enforced by
Defendants prevents youth residents and detainees from receiving
local news media, whose access is important to the rehabilitative
nature of the youths’ commitment or detention at Platte Valley.
Such a policy, both facially and as applied to Ms. Saunders,
violates the free speech and association rights guaranteed by the
First and Fourteenth Amendments to the United States
Constitution. * * * Accommodating Ms. Saunders’s First
Amendment right to free speech and association through access to
local news would not place on Platte Valley or other DYC
detention centers an undue burden with respect to their guards or
staff members, their other youth residents or adjudicated
delinquent juveniles, or their allocation of resources.
Doc. 39, SAC ¶¶ 14, 79–81, 86. Plaintiff requests “[a]ppropriate prospective injunctive relief
against Defendants prohibiting further violations of Ms. Saunders’s First Amendment rights.”
Id. at p. 15.
On October 25, 2016, the court set a final pretrial conference in February 2017 and a two
day bench trial in March 2017. Docs. 44, 45. On January 24, 2017, the parties jointly moved to
continue the final pretrial conference because Plaintiff had a
sentencing hearing on an unrelated criminal charge scheduled for
February 17, 2017.… Depending on the sentence she receives, she
may be transferred to the Colorado Department of Corrections
before the trial in this action. … If she is moved, Ms. Saunders
may no longer be subject to the Division of Youth Corrections
policies she challenges in this lawsuit.
Doc. 57 at pp. 1–2. At Plaintiff’s February 17 sentencing, she “was sentenced to probation … on
an adult charge. … [S]he returned to Platte Valley to carry out adult probation concomitantly

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with [her] juvenile commitments.” Doc. 76 at p. 2. During the trial, Plaintiff was in DYC’s
custody, and she remained so when each side proposed findings of fact and conclusions of law
on April 5, 2017. Docs. 70, 71.
However, on April 21, 2017, Plaintiff
was arrested and taken to the Weld County jail for alleged
violations of her probation terms. On May 15, 2017, she stipulated
to the revocation of her adult probation and a three-year sentence
in the Department of Corrections [“DOC”]. … Defendants are
currently seeking release of mittimus from the juvenile courts on
her remaining commitments.
Doc. 76, motion to dismiss, at pp. 2-3. Plaintiff does not dispute these facts. It is also
undisputed that Plaintiff is over 18 years but less than 21 years of age, and that the upper limit
for DYC jurisdiction is 21 years of age.
ANALYSIS
Defendants argue that their “present and future lack of custody of Ms. Saunders renders
this case moot, because the only redress the Court could fashion for her complaint would be
prospective,” and “there is no future conduct to enjoin.” Doc. 76 at p. 3.3 As Plaintiff notes,
mootness is an issue of subject matter jurisdiction that may be raised at any stage of the
proceedings. Kennedy v. Lubar, 273 F.3d 1293, 1301–02 (10th Cir. 2001). Defendants raise the
issue via Federal Rule of Civil Procedure 12(b)(1). The court is to “appl[y] a rigorous standard
of review when presented with a motion” to dismiss for lack of subject matter jurisdiction.
Raccoon Recovery, LLC v. Navoi Mining & Metallurgical Kombinat, 244 F. Supp. 2d 1130,
1136 (D. Colo. 2002). “Once subject matter jurisdiction is challenged, the party claiming
jurisdiction bears the burden of proving it by a preponderance of the evidence.” EEOC v.
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A claim against state officials in their official capacities for relief other than prospective
injunctive relief would be subject to Eleventh Amendment state sovereign immunity. See, e.g.,
Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1259–60 (10th Cir. 2002) (discussing
exception to immunity under Ex Parte Young, 209 U.S. 123 (1908)).
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CollegeAmerica Denver, Inc., 75 F. Supp. 3d 1294, 1298 (D. Colo. 2014), recon. den’d, 2015
WL 6437863 (D. Colo. Oct 23, 2015) (citing United States ex rel. Hafter v. Spectrum Emergency
Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999)).
Mootness can be either constitutional or prudential. Defendants argue that Plaintiff’s
case is moot under the constitution’s requirement that “an actual controversy … be extant at all
stages of review.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). “A case
becomes moot only when it is impossible for a court to grant any effectual relief whatever to
the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 308 (2012)
(internal quotation marks and citations omitted). “Mootness is found when events outside the
litigation make relief impossible. … Events may supersede the occasion for relief, particularly
when the requested relief is limited.” Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011)
(quoting 13C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3533.3.1, at 56, 59–60 (3d ed. 2008) (footnotes omitted)). Plaintiff concedes that
she is no longer in DYC’s custody because she is serving a three year sentence in DOC. Since
she is no longer subject to the DYC policy that is the subject of Plaintiff’s lawsuit, it is not
possible for the court to enter any prospective injunctive relief for her against Defendants.
However, Plaintiff argues that her case is not moot because it is “capable of repetition
yet evading review.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). This
exception is a “narrow” one, to be applied only in “exceptional” circumstances. Jordan, 654
F.3d at 1035.
[O]utside 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.
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Jordan, 654 F.3d at 1035 (quoting Weinstein, 423 U.S. at 149). Plaintiff bears the burden of
proving both elements. Id. See also Ind v. Colo. Dep't of Corr., 801 F.3d 1209, 1216 (10th Cir.
2015) (applying Jordan, prisoner’s challenge of a policy in administrative segregation unit was
mooted by his transfer to the general prison population).
In this case, the court need not address the first element because Plaintiff has not shown
the second. A reasonable expectation that the same complaining party will be subjected to the
same action or policy again requires showing present facts that make future application of the
same policy to the plaintiff reasonably plausible. See, e.g., Davis v. Fed. Bureau of Prisons, No.
15-CV-0884-WJM-MJW, 2016 WL 1156755, at *3 (D. Colo. Mar. 24, 2016) (“Defendant
previously implemented the CRs after Plaintiff's SAMs had expired. … Thus, Defendant has
previously imposed restrictions after others were no longer in effect and may do so again.
Furthermore, no additional conduct by the Plaintiff would be required to reimplement the
restrictions.”). If the court must assume that the plaintiff will engage in additional conduct, this
does not suffice. See, e.g., Ind, 801 F.3d at 1216 (“we decline to assume [t]he [plaintiff] will
repeat the misconduct that previously got him sent to administrative segregation”).
Plaintiff has not shown a reasonable expectation that she will be subjected to the DYC’s
policy again. Plaintiff does not dispute Defendants’ assertion that she is serving a three year
sentence in DOC, at the end of which she will be 21 years of age and thus beyond DYC’s
jurisdiction. Plaintiff suggests that nothing bars DOC from returning her to DYC before she has
completed her sentence at DOC, but Plaintiff does not cite any law, DOC regulations, or facts
that suggest DOC might actually do so. To the contrary, Plaintiff is in DOC custody only as a
result of violating her parole on the adult charge while she remained in DYC custody. Plaintiff

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also does not dispute Defendants’ assertion that they have requested the mittimuses ordering her
commitment to DYC be vacated.
Plaintiff argues that she need not show that she is likely to be subject to DYC’s policy
again so long as other youths will still be subject to the same policy. Doc. 77 at pp. 6–7.
Plaintiff cites cases from a handful of courts outside of the Tenth Circuit, but only the cases from
the Ninth Circuit directly support this legal principle. See United States v. Sanchez-Gomez, 859
F.3d 649, 655 (9th Cir. 2017); Buzancic v. Kane, No. CV-09-1943, 2011 WL 336395, at *2 (D.
Ariz. Jan. 31, 2011). Plaintiff’s other cases found claims were still live, but based on different
facts. In Adams v. Duncan, 179 F. Supp. 3d 632, 646 (S.D. W.Va. 2016), the plaintiff brought a
putative class action,4 and the court could still award part of the relief that the named plaintiff
requested. In Ukrainian-American Bar Association, Inc. v. Baker, 893 F.2d 1374, 1377 (D.C.
Cir. 1990), an association asked the immigration agency to inform detained aliens from Eastern
Europe that the association would represent them pro bono in asylum requests. The agency
declined to do so and would allegedly continue to do so. Thus, the association’s claim regarded
not just the specific alien whose situation had catalyzed the association’s complaint (and who
had long since left the country) but rather the policy that the agency continued to apply to the
association as to aliens detained in the future.
Assuming that the Tenth Circuit would recognize the same modification of Ex Parte
Young as the Ninth Circuit, it would not apply here. Plaintiff notes that this doctrine “applies
with full force where plaintiff seeks to represent interests broader than plaintiff’s own interests.”
Doc. 77, Response brief at p. 7. See, e.g., Sanchez-Gomez, 859 F.3d at 655 (“Defendants seek
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“[I]n the context of class actions … the Supreme Court has applied a more ‘flexible’ approach
to the mootness doctrine. …The burden of establishing that a claim is moot is heavy and it
belongs to the party asserting mootness.” Adams, 179 F. Supp. 3d at 645 (citing U.S. Parole
Comm'n v. Geraghty, 445 U.S. 388, 400 (1980)).
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relief not merely for themselves, but for all in-custody defendants in the district. Thus,
defendants are making class-like claims and asking for class-like relief.”). Plaintiff has not
sought to represent interests broader than her own. To the contrary, Plaintiff recognized that to
prove her claim, she had to show that accommodating her First Amendment right would not
impact prison resources. Doc. 71, Plaintiff’s proposed findings and conclusions, at p. 14 (citing
the third factor of Turner v. Safley, 482 U.S. 78, 89–90 (1987)). Plaintiff specifically argued that
the injunctive relief that she requested – for Platte Valley to screen her personal subscription to
the Denver Post – would not be burdensome to Defendants because they would have to screen
only the single copy for Plaintiff. Doc. 39, SAC ¶ 86 and request for relief at p. 15; Doc. 71,
proposed findings and conclusions at pp. 9, 15; Doc. 72, transcript of trial, March 21, 2017 at pp.
6-7, 34-35.
Plaintiff’s proposed final order does refer to “screen[ing] personal subscriptions to local
print news,” and proposes that “Defendants must develop a policy or practice consistent with this
Order.” Doc. 71, proposed findings and conclusions at p. 16 (emphasis added). But Plaintiff
simultaneously points out that Platte Valley had no record of anyone else making such a request:
Although witnesses for Defendants testified that it would take “[a]
tremendous amount of staff time” to provide local print news,
Saunders has not made a request that Defendants provide The
Denver Post for all youth residents, such that multiple copies may
need to be screened at one facility or across facilities. Rather,
Defendants did not demonstrate a tremendous burden on resources
or staff allocation to screen the only requested subscription for a
local newspaper they have received. And Defendants did not
identify other youth residents across the DYC facilities who had
made a similar request for a local newspaper in the many years the
policy has been in place. Tr. at 168:4-10.
Id. at p. 9 ¶ 43 (emphasis added).
Saunders does not seek to require that Defendants themselves
provide local news to all residents. Rather, Saunders proposes to
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accommodate her right to access news by screening her requested
personal subscription to The Denver Post.
The burden to conduct this type of screening is extremely
low on Defendants’ resources where evidence indicated that no
other requests for personal subscriptions to local newspapers have
occurred in the history of DYC’s ban, and where testimony
consistently revealed that the time required to screen—and
remove, if necessary—any objectionable material would be less
than fifteen minutes. * * * [S]creening of Saunders’s requested
personal subscription is one ready alternative that would impose
little cost to Defendants.
Doc. 71, proposed findings and conclusions at p. 15 ¶¶ 25-26, 29 (emphasis original).
DYC has argued (among other things) that if Plaintiff is granted her request, DYC would
have to change its policy across the board (doc. 72, transcript of trial, March 21, 2017 at p. 12),
and other youths would likely make the same request. Doc. 73, transcript of trial, March 22,
2017 at pp. 434-35. But regardless of what DYC believed the future impact would be of
Plaintiff’s request, Plaintiff limited her requested relief to her own subscription to the Denver
Post. Plaintiff cannot now recharacterize her claim and the relief she seeks in order to avoid the
second element of the Ex Parte Young exception to mootness. See, e.g., Buzancic v. Kane, No.
CV-09-1943, 2011 WL 336395, at *2 (D. Ariz. Jan. 31, 2011) (“Petitioner, who only sought
relief for himself in his habeas petition, cannot properly forestall a mootness dismissal under the
‘capable of repetition’ exception by recharacterizing his petition as a generic challenge to ICE’s
§ 1159 detention policy,” internal quotation marks omitted).
In short, Plaintiff was faced with a strategy choice. If she requested that all similarlysituated youths in Platte Valley should be permitted personal subscriptions to local news (or a
sufficient number of such subscriptions to be shared), this would likely avoid the mootness issue
that would arise if Plaintiff was moved. But it would also make proof of the third Turner factor
more difficult because Plaintiff would have to show that screening multiple copies of local

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newspapers would not impact prison resources. If Plaintiff instead restricted her claim to only
her personal subscription request, this made the third Turner factor less difficult but left the
possibility of mootness if she were moved. Plaintiff’s pro bono counsel ably represented her in
making the strategy choice, and Plaintiff cannot reverse course at this late phase. Accordingly,
the case is now moot.
CONCLUSION
Because Plaintiff’s claim is moot, the court lacks subject matter jurisdiction. Plaintiff’s
claim is DISMISSED WITHOUT PREJUDICE. Each party shall bear its own costs.

DATED this 3rd day of August 2017.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge

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