Robert D. Gandy, Plaintiff-Appellant,
Rick Raemisch, Executive Director, Colorado Department of Corrections; and Steve Hager, Director of Prisons, Colorado Department of Corrections, Defendants-Appellees.
County District Court No. 16CV45 Honorable Edward S. Colt,
Gibson, Dunn & Crutcher LLP, Timothy M. Zimmerman, Reid
F. Rector, John D.W. Partridge, Denver, Colorado, for
Cynthia H. Coffman, Attorney General, Kathryn A. Starnella,
Assistant Attorney General, Denver, Colorado, for
1 Plaintiff, Robert D. Gandy, appeals the district
court's judgment dismissing his complaint under C.R.C.P.
106 against defendants, Rick Raemisch, Executive Director of
the Colorado Department of Corrections (Executive Director),
and Steve Hager, Director of Prisons of the Colorado
Department of Corrections (Director). We affirm in part,
reverse in part, and remand with directions for further
Facts and Procedural Background
2 Gandy is a Canadian citizen serving a habitual criminal
life sentence in the custody of the Colorado Department
of Corrections (DOC). Gandy has applied numerous times to the
DOC to be transferred to serve the remainder of his sentence
in the Canadian penal system. See Gandy v. Colo.
Dep't of Corr., 2012 COA 100 (Gandy III);
Gandy v. Colo. Dep't of Corr., (Colo.App. No.
07CA2381, Nov. 26, 2008) (not published pursuant to C.A.R.
35(f)) (Gandy II); Gandy v. Colo. Dep't of
Corr., (Colo.App. No. 03CA1056, June 24, 2004) (not
published pursuant to C.A.R. 35(f)) (Gandy I). His
applications have been denied.
3 At issue is Gandy's September 3, 2015, application for
transfer. On February 8, 2016, the Director denied
Gandy's application in writing, referencing the Canadian
Minister of Public Safety's 2012 denial of Gandy's
most recent application. The Canadian application was denied
based on Gandy's length of time abroad; the infrequency
of his visits; his insufficient personal support or ties to
Canada; the lack of evidence the transfer would promote
public safety in Canada; and lack of evidence that any of
these factors had changed since Gandy's previous
applications for transfer. The Director said that, under DOC
Administrative Regulation 550-05, Gandy would be eligible to
reapply in two years. He suggested that Gandy use the interim
period to "provide documentation that would support
those reasons for denial having changed." But the
Director did not forward Gandy's application to the
4 Gandy filed a complaint in the district court seeking
mandamus relief. He asked the court to direct the DOC to
"process and submit" his application for transfer
to the United States Department of Justice. He also asked for
"a nominal amount for punitive damages" for alleged
violations of his constitutional rights. The court granted
defendants' motion to dismiss Gandy's complaint
pursuant to C.R.C.P. 12(b)(5) for failure to state a claim on
which relief can be granted.
5 Gandy appeals the district court's dismissal of his
complaint, contending that he stated a claim for mandamus
relief under C.R.C.P. 106. He argues that, under the
applicable state statute and DOC administrative regulation,
he was entitled to final review of and decision on his
transfer application by the Executive Director rather than
the Director. He also asserts that the Director improperly
imposed a two-year waiting period and "change of
circumstances" requirements for any future transfer
applications. Finally, Gandy alleges several constitutional
6 Before we address Gandy's arguments, we first describe
the framework of international treaty, state statute, and DOC
administrative regulation that governs the transfer of a
Canadian offender to serve his remaining sentence in Canada.
Laws Governing Transfer of Offenders to Canada
7 In 1978, the United States and Canada entered into a treaty
"to enable [o]ffenders, with their consent, to serve
sentences of imprisonment or parole or supervision in the
country of which they are citizens, thereby facilitating
their successful reintegration into society." Treaty on
the Execution of Penal Sentences, Can.-U.S., Mar. 2, 1977, 30
U.S.T. 6263 (the Treaty).
8 Under certain conditions, an offender may apply for a
transfer from the country in which he or she is incarcerated,
known as the "Sending State." Id. at art.
I(a); art. III, ¶ 3. Upon approval of the federal
authorities, and, if the offender is a state prisoner, the
state authorities, the offender's country of citizenship,
known as the "Receiving State, " must also approve
the transfer. Id. at art. I(b); art. III, ¶ 3.
9 The Treaty provides that
Offender shall be transferred unless:
(a) he is under a sentence of imprisonment for life; or
(b) the sentence which he is serving states a definite
termination date, or the authorities authorized to fix such a
date have so acted; or
(c) he is subject to confinement, custody or supervision
under the laws of the Sending State respecting juvenile
(d) he is subject to indefinite confinement as a dangerous or
Id. at art. III, ¶ 7.
10 "After a transfer is complete, the receiving country
is responsible for the cost of incarceration and may not
challenge, set aside, or otherwise modify the terms of the