Robert D. Gandy, Plaintiff-Appellant,
Dean Williams, Executive Director, Colorado Department of Corrections;and Travis Trani, Director of Prisons, Colorado Department of Corrections, Defendants-Appellees.
Paso County District Court No. 16CV45 Honorable Eric Bentley,
Announced August 1, 2019 Robert D. Gandy, Pro Se
J. Weiser, Attorney General, Nicole S. Gellar, First
Assistant Attorney General, Denver, Colorado, for
1 Plaintiff, Robert D. Gandy, appeals the district
court's order denying his motion to amend his complaint
against officials of the Colorado Department of Corrections
(CDOC) and closing the case. His complaint stems from the
denial of his application to serve his prison sentence in
Canada, his birthplace. We affirm. In doing so, we clarify
that (1) while the CDOC's regulation entitles an inmate
to review of a transfer application by the CDOC's
Executive Director, the decision whether to grant the
application lies within the Executive Director's
discretion; and (2) when exercising that discretion, the
Executive Director may decide that the inmate's need for
treatment militates against an immediate transfer.
2 This is not Gandy's first appeal to this court. Like
this one, his earlier appeals concerned his request to be
transferred to the Canadian penal system. As discussed in
Gandy v. Raemisch, 2017 COA 110, ¶ 2 (Gandy
IV), Gandy is a Canadian citizen serving a habitual
criminal life sentence in the CDOC's custody. See
also 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). He
has argued that an international treaty addressing prisoner
exchanges and its implementing statutes and regulations
require CDOC officials to consent to his transfer to Canada.
See Treaty on the Execution of Penal Sentences,
Can.-U.S., Mar. 2, 1977, 30 U.S.T. 6263 (the Treaty); see
also 18 U.S.C. §§ 4100-4102 (2018); §
24-60-2301, C.R.S. 2018; DOC Admin. Reg. 550-05 (AR 550-05).
The CDOC has denied his applications.
3 In this case, Gandy filed a transfer application in
September 2015. After it was denied, he filed a complaint in
the district court against CDOC Executive Director and CDOC
Director of Prisons (defendants). Among other claims, Gandy
sought mandamus relief directing defendants to process his
prisoner-transfer application according to CDOC regulation AR
550-05. The court granted defendants' motion to dismiss,
and Gandy appealed.
4 In Gandy IV, a division of this court rejected
most of Gandy's contentions but held that he had
sufficiently stated a mandamus claim. The division concluded
that the CDOC's regulation required the Director of
Prisons to forward Gandy's transfer application to the
Executive Director, or his or her designee, for final review
and decision. Gandy IV, ¶ 22. Because the
Director of Prisons had not done so, the division reversed
the judgment of dismissal on this issue and remanded to the
district court to issue an order directing the Director of
Prisons to forward the transfer application to the Executive
Director. Id. at ¶ 43.
5 On remand, the CDOC amended AR 550-05. Applying the amended
regulation, the Executive Director considered and denied
Gandy's transfer application. Defendants filed this new
decision in the district court as an attachment to a status
report. The court directed the CDOC to provide a written
explanation for the new decision to Gandy. The Executive
Director then issued the following memo to Gandy:
It is the policy of the Colorado Department of Corrections to
return convicted foreign national offenders to their country
of origin consistent with the interests of the state of
Colorado, the United States Department of Justice, and the
A review of your criminal history, however, indicates a
pattern of sexually deviant behaviors that require treatment.
Per Administrative Regulation 700-19, the Colorado Department
of Corrections provides specialized sex offense-specific
treatment to offenders with identified needs to reduce
recidivism and enhance public safety. While you are currently
identified as ineligible for sex offender treatment due to
not being within four years of your parole eligibility date,
which is presently July 22, 2022, I expect and encourage you
to participate in treatment when the opportunity becomes
available to you.
Without treatment, returning you to your country of origin at
this time is inappropriate and not in the best interest of
the state of Colorado, the United States Department of
Justice or you as an individual offender with untreated
6 After defendants informed the court of the Executive
Director's memo and asked for the case to be closed, the
court solicited Gandy's view as to the further handling
of the case. In response, he filed a status report asking for
time to file an amended complaint challenging the latest
denial of this transfer application. Shortly thereafter, he
submitted a motion to amend his complaint. Defendants opposed
his motion, arguing that his suggested amendments could not
withstand a motion to dismiss and were therefore futile under
American Civil Liberties Union of Colorado v.
Whitman, 159 P.3d 707, 712 (Colo.App. 2006). Before the
court ruled, Gandy again moved to amend pursuant to
"C.R.C.P. Rule 15(a) and (d)," and he attached an
amended complaint. In addition to challenging the denial of
his transfer application, his amended complaint alleged that
defendants had unlawfully retaliated against him by
relocating him to a less desirable facility. Defendants again
argued that the proposed claims were futile on the merits.
7 The district court denied Gandy's first motion to amend
as moot in light of his second motion. After receiving
briefing on his second motion and considering his proposed
amended complaint, the court denied it. The court concluded
that he had received all the relief ordered by the Gandy
IV division and that "[t]o the extent Mr. Gandy now
wishes to challenge Defendants' post-remand decision[, ]
that is a challenge to a new administrative action that
should be brought in a new lawsuit, after exhausting the
administrative remedies available to him." In the
alternative, the court denied the motion to amend because the
proposed claims were futile on the merits. The court closed
the case, and Gandy appealed.
8 Because Gandy appears pro se in this court, we liberally
construe his filings while applying the same law and
procedural rules applicable to a party represented by
counsel. See People v. Bergerud, 223 P.3d 686, 696
(Colo. 2010); People v. Wunder, 2016 COA 46, ¶
Applicable to a Motion to Amend
9 Gandy first contends that the district court erred because
he had a right to amend his complaint as a matter of course
under C.R.C.P. 15(a). We disagree.
10 Gandy is correct that C.R.C.P. 15(a) permits a party to
amend a pleading "once as a matter of course at any time
before a responsive pleading is filed." He is also right
that a motion to dismiss is not normally considered a
responsive pleading for purposes of this rule. See,
e.g., Grear v. Mulvihill, 207 P.3d 918, 922
(Colo.App. 2009). Thus, defendants' original motion to
dismiss in this case (prior to the appeal in Gandy
IV) did not terminate his right to amend. The district
court's grant of that motion and its judgment of
dismissal, however, did so. A division of this court has
explained the pertinent principle:
Read literally, C.R.C.P. 15(a) gives the plaintiff an
unlimited right to amend once as a matter of course before an
answer is filed. However, when final judgment is entered
before a responsive pleading is filed, the liberal approach
of C.R.C.P. 15 must be balanced against the value of
preserving the integrity of final judgments. Therefore,
if final judgment is entered before a responsive pleading has
been served, the absolute right to amend the complaint as a
matter of course is lost.
Wilcox v. Reconditioned Office Sys. of Colo., Inc.,
881 P.2d 398, 400 (Colo.App. 1994) (emphasis added)
(citations omitted); see also Cooper v. Shumway, 780
F.2d 27, 29 (10th Cir. 1985) ("A motion to dismiss is
treated like a responsive pleading when final judgment is
entered before plaintiff files an amended complaint. The
final judgment precludes plaintiff from amending his
complaint as of right pursuant to [a former version of
Fed.R.Civ.P. 15(a), which was similar to C.R.C.P.
15(a)].") (citations omitted).
11 Consequently, Gandy's ability to amend his complaint
after the district court entered final judgment and after
remand from this court was subject to the district
court's discretion. See Civil Serv. Comm'n v.
Carney, 97 P.3d 961, 966 (Colo. 2004) ("This court
has long recognized that trial courts may permit parties to
amend pleadings in proceedings conducted after an appellate
court's order of remand."). More precisely, the
district court retained discretion to grant Gandy leave to
amend the pleadings following remand from this court unless
the amendment would contravene a mandate that expressly or by
necessary implication precluded such amendment. Nelson v.
Elway, 971 P.2d 245, 248 (Colo.App. 1998).
12 Defendants have never contended that the mandate in
Gandy IV precluded Gandy's proposed amendments,
and the district court did not so rule. Rather, defendants
acknowledge that the court had the discretion to grant
Gandy's motion to amend. In particular, they point to
C.R.C.P. 15(d), which authorizes a court to permit "a
supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of
the pleading sought to be supplemented." C.R.C.P. 15(d).
13 "Exercise of the trial court's discretion under
Rules 15(a) and 15(d) is substantially similar and should be
governed by the same considerations." Eagle River
Mobile Home Park, Ltd. v. Dist. Court, 647 P.2d 660, 662
n.4 (Colo. 1982). "In deciding whether to grant a motion
to amend, the trial court must consider the totality of the
circumstances, balancing the policy favoring amendment
against the burden the amendment imposes on the other
party." Carney, 97 P.3d at 966.
14 Appellate review of the trial court's denial of a
motion to amend is generally limited to determining whether
the court abused its discretion. Id. Where, however,
a court denies leave to amend on grounds that the amendment
would be futile because it cannot survive a motion to
dismiss, we review that legal question de novo. Benton v.
Adams, 56 P.3d 81, 85 (Colo. 2002).
Exhaustion of Administrative Remedies
15 The district court's first reason for denying
Gandy's request to amend his complaint was that he still
had to exhaust his administrative remedies challenging the
Executive Director's post-remand decision.
16 "No inmate shall bring a civil action based upon
prison conditions under any statute or constitutional
provision until all available administrative remedies have
been exhausted in a timely fashion . . . ." §
13-17.5-102.3(1), C.R.S. 2018. "Failure to allege in the
civil action that all available administrative remedies have
been exhausted in ...