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.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Paso County District Court No. 16CV45. Honorable Eric
D. Gandy, Pro se.
J. Weiser, Attorney General, Nicole S. Gellar, First
Assistant Attorney General, Denver, Colorado, for
and Berger, JJ., concur.
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
[¶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, 405 P.3d 480, 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., 284 P.3d 898, 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
[¶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, 371
P.3d 785, 2016 COA 46, ¶ 16 n.3.
II. Law 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 ...