Robertson (ID 76205) v. Biby et al

Filing 158

MEMORANDUM AND ORDER ENTERED: Defendants' motion for summary judgment based on mootness 144 is granted. Plaintiff's motion for leave to file motion for costs 152 is denied. Plaintiff's motion for summary judgment 105 , defendan ts' motion for summary judgment 113 , plaintiff's motion for extension of time 116 , plaintiff's motion for permission for an expert to conduct maintenance 123 , plaintiff's motion for judgment as a matter of law 124 , plainti ff's third motion for summary judgment 128 , defendants' combined motion to strike and motion for sanctions 130 , plaintiff's motion for preliminary injunction 133 , plaintiff's combined motion for relief from order and for def ault judgment 138 , plaintiff's motion for leave to file motion for summary judgment 148 , plaintiff's motion for leave to file motion to strike 149 , plaintiff's motion for leave to file motion for preliminary injunction 155 , and plaintiff's motion for leave to file a motion for preliminary injunctive relief and for a temporary restraining order 157 are denied. Signed by U.S. Senior District Judge Sam A. Crow on 03/28/17. Mailed to pro se party Joshua James Robertson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSHUA JAMES ROBERTSON,
Plaintiff,
v.

CASE NO. 12-3109-SAC

CHAUNCEY BIBY, et al.,
Defendants.

MEMORANDUM AND ORDER
Background
This matter is a civil action filed under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc,
filed by a prisoner in state custody. Plaintiff seeks access to an
audio Bible.
Plaintiff is housed in long-term administrative segregation and
is unable to attend congregational worship services (Doc. #1, p. 3).
The complaint asserts, in relevant part, that plaintiff is “required
to hear the Bible spoken by someone reading the Bible” id., p. 7, and
that the denial of access to an audio Bible has prevented him from
this religious exercise. Id. (“the non-hearing or prevention of
hearing the Bible spoken by someone does not conform with my
understanding of the requirements of Christianity and compels
inaction with respect to studying the Bible.”).
On March 25, 2015, the Court granted defendants’ motion to
dismiss this matter. Plaintiff appealed, and on June 14, 2016, the
U.S. Court of Appeals for the Tenth Circuit reversed the dismissal
of the action and remanded the matter for further proceedings (Doc.
#103).

Since then, plaintiff has presented a different version of the
audio Bible to officials of the Kansas Department of Corrections
(“KDOC”). Finding that the new version of that device does not present
the same security concerns identified with the earlier version of that
device, KDOC officials have allowed him to possess the device,
regardless of his incentive level and disciplinary status, so long
as he abides by facility policies and state and federal law (Doc. #145,
Attach. 1, p. 4, letter describing terms of possession of device).
Several motions are pending before the Court, namely:
Doc. #105 plaintiff’s motion for summary judgment;
Doc. #113 defendants’ motion for summary judgment;
Doc. #116 plaintiff’s motion for an extension of time to
respond to defendants’ motion;
Doc. #123 plaintiff’s motion for permission to allow his
expert to conduct maintenance on the device;
Doc. #124 plaintiff’s motion for judgment as a matter of
law;
Doc. #128 plaintiff’s third motion for summary judgment;
Doc. #130 defendants’ combined motion to strike Docs. #124
and #128 and for sanctions;
Doc. #133 plaintiff’s motion for preliminary injunction;
Doc. # 138 plaintiff’s combined motion for relief from order
and for default judgment;
Doc. # 144 defendants’ motion for summary judgment based
on mootness;
Doc. #148 plaintiff’s motion for leave to file motion for
summary judgment;
Doc. #149 plaintiff’s motion for leave to file motion to
strike defendants’ motion for summary judgment based on
mootness;
Doc. #152 plaintiff’s motion for leave to file motion for
costs;
Doc. #155 plaintiff’s motion for leave to file motion for
preliminary injunction; and
Doc. #157 plaintiff’s combined motion for leave to file
motion for a temporary restraining order and motion for
preliminary injunction.
The motions for summary judgment
Summary judgment is appropriate when the moving party

demonstrates that there is “no genuine dispute” about “any material
fact” and that it is “entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In applying this standard, the Court considers
the evidence and draws inferences in the light most favorable to the
non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th
Cir. 2010).
The moving party has the initial burden of showing the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). If the moving party meets that burden, the burden
shifts to the non-moving party to show that genuine issues remain for
trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). The non-moving party may not rest on its pleadings
but must come forward with specific facts supported by competent
evidence. Nahno-Lopez, 625 F.3d at 1283.
“An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on
the issue.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). The core inquiry is “whether the evidence presents
a sufficient disagreement to require submission to the jury or whether
it is so one-sided that one party must prevail as a matter of law.”
Liberty Lobby, 477 U.S. at 251-52.
Four motions for summary judgment are pending before the Court,
and the Court has examined all of these motions and the responses filed
to them. In light of the change in circumstances that has occurred,
namely, the availability of a new version of the audio Bible that is

compatible with the security requirements of the Kansas Department
of Corrections, and the delivery of that device to the plaintiff, the
Court concludes that defendants’ motion for summary judgment based
on mootness (Doc. #144) must be granted for the following reasons.
“Constitutional mootness doctrine is grounded in the Article III
requirement that federal courts only decide ‘actual, ongoing cases
or controversies.’” Bldg. & Const. Dept. v. Rockwell Int’l Corp., 7
F.3d 1487, 1491 (10th Cir. 1993)(quoting Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 477 (1990)). “A suit becomes moot when the issues
presented are no longer live or the parties lack a legally cognizable
interest in the outcome.” Brown v. Buhman, 822 F.3d 1151, 1165(10th
Cir. 2016)(internal quotations omitted)(quoting Chafin v. Chafin, __
U.S. ___, 133 S.Ct. 1017, 1023 (2013)).
Where an action becomes moot due to intervening changes, a
federal court lacks subject matter jurisdiction. See In re BCD Corp.,
119 F.3d 852, 856 (10th Cir. 1997)(mootness is a threshold inquiry
because without a live case or controversy, the court lacks subject
matter jurisdiction). See also Iron Arrow Honor Soc. v. Heckler, 464
U.S. 67, 70 (1983)(“A case becomes moot when a plaintiff no longer
suffers actual injury that can be redressed by a favorable judicial
decision.”)
Here, the decision to allow plaintiff to have the new version
of the audio Bible in his possession, regardless of his incentive level
or disciplinary status, provides plaintiff with the exact relief he
sought and renders this matter moot.

Plaintiff asserts this matter is not moot due to his desire for
access to a television. See Doc. #146, p. 3, par. 10. The Court rejects
this argument. First, plaintiff has stated both that he sought the
audio Bible, see Doc. #42, p. 8, par. 37:(“the Law that defines the
term “Bible” shall mean the main religious text of the inmate’s
religion … is a very narrow scope which a television, radio, and MP3
music player does not meet because those items do not contain the Audio
text of the Bible”) and id., p. 9, par. 37: (“I am only seeking to
have an audio Bible, either the My-iBible [or] the facility’s
contracted MP3 player”). Likewise, plaintiff has expressly rejected
television as a means to meet his requirement for hearing the Bible
read aloud. See, e.g., Doc. #42, p. 9, par. 41: (“I believe that
Television and Radio have sinful behaviors and languages, to watch
and listen to them would be partaking in those sinful nature that
breaks my fellowship with God”) and Doc. #49, p. 2, par. 5: (“I cannot
trust clergy on television and radio because I have found them to be
inconsistent with the Bible, further television and radio clergy is
not a narrated word of the gospel.”)
The Court therefore grants the motion for summary judgment on
the ground of mootness. Having reached this conclusion, the Court will
deny the remaining motions for summary judgment.
Plaintiff’s motions for costs and injunctive relief
Plaintiff has filed a motion seeking costs (Doc. #152). He
describes these costs as “attorney costs” and “secretarial
assistance” Id., Attach., p. 1; these costs appear to be $13,600.00

for hours he and his mother devoted to his case. Id., p. 4.
Even assuming arguendo that plaintiff is the prevailing party,
as he asserts, it does not follow that he is entitled to the award
of costs that he seeks.

It is settled that a pro se litigant is not

permitted to recover attorney fees under the Civil Rights Fee Awards
Act, 42 U.S.C. § 1988. Kay v. Ehrler, 499 U.S. 432, 435 (1991)(a pro
se party is not entitled to attorney fees under Section 1988,
regardless of whether the party is an attorney). In that decision,
the U.S. Supreme Court reasoned that the term attorney’s fees “assumes
an agency relationship” between an attorney and cline, and that
awarding fees only in that context will encourage “potential
plaintiffs to obtain the assistance of competent counsel in
vindicating their rights.” Id. at 436-37. In contrast, a rule
authorizing the award “of counsel fees to pro se litigants – even if
limited to those who are members of the bar – would create a
disincentive to employ counsel whenever such a plaintiff considered
himself competent to litigate on his own behalf.” Id. at 438.
This Court has found no authority that would allow an award for
legal work conducted by a pro se party or for the unspecified
secretarial work plaintiff claims was performed by his mother.
Accordingly, the Court rejects plaintiff’s request for costs.
Plaintiff also has filed motions for relief that concern the
maintenance and access to specific equipment, Doc. #123, which seeks
permission for “plaintiff’s expert” to conduct maintenance; Doc.
#155, which seeks preliminary injunctive relief to have two pairs of

earbuds, rather than one; and Doc. #157, which challenges the
confiscation of several books due to his possession of a number of
books over the facility limitation.
It is settled that the courts “must accord substantial deference
to the professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of a
corrections system and for determining the most appropriate means to
accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
Accordingly, courts normally defer to decisions of prison officials
made “in managing the daily operations of a prison due to the unique
nature, needs and concerns of the prison environment.” Pinson v.
Pacheco, 424 Fed.Appx. 749, 756 (10th Cir. 2011).
Plaintiff’s requests are within the ordinary management
decisions, and absent error of constitutional dimension, decisions
concerning maintenance and access to the quantity of equipment should
be left to the expertise and discretion of prison officials.
Conclusion
For the reasons set forth, the Court grants the defendants’
motion to dismiss this matter as moot and denies plaintiff’s motions
for costs and for injunctive relief concerning the equipment provided
to him.
IT IS, THEREFORE, BY THE COURT ORDERED defendants’ motion for
summary judgment based on mootness (Doc. #144) is granted.
IT IS FURTHER ORDERED plaintiff’s motion for leave to file motion
for costs (Doc. #152) is denied.

IT IS FURTHER ORDERED plaintiff’s motion for summary judgment
(Doc. #105), defendants’ motion for summary judgment (Doc. #113),
plaintiff’s motion for extension of time (Doc. #116), plaintiff’s
motion for permission for an expert to conduct maintenance (Doc.
#123), plaintiff’s motion for judgment as a matter of law (Doc. #124),
plaintiff’s third motion for summary judgment (Doc. #128),
defendants’ combined motion to strike and motion for sanctions (Doc.
#130), plaintiff’s motion for preliminary injunction (Doc. #133),
plaintiff’s combined motion for relief from order and for default
judgment (Doc. #138), plaintiff’s motion for leave to file motion for
summary judgment (Doc. #148), plaintiff’s motion for leave to file
motion to strike (Doc. #149), plaintiff’s motion for leave to file
motion for preliminary injunction (Doc. #155), and plaintiff’s motion
for leave to file a motion for preliminary injunctive relief and for
a temporary restraining order (Doc. #157) are denied.
IT IS SO ORDERED.
DATED:

This 28th day of March, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge